Salt River Valley Water Users Association

National Labor Relations Board - Board Decisions

Jun 24, 1952

99 N.L.R.B. 849 (N.L.R.B. 1952)

SALT RIVER VALLEY WATER USERS ASSOCIATION 849
Group (b) : All body men, body men helpers, car washers and pol-
ishers, undercoating and lubricare men, parts salesmen, the service
salesman ,4 and the j anitor.s
If a majority of the employees in group (a) vote for the Intervenor,
they will be taken to have indicated their desire to constitute a sep-
a.rate bargaining unit, and the Regional Director conducting the elec-
tion herein is instructed to issue a certification of representatives to
such labor organization for such unit, which the Board under such
circumstances finds to be appropriate for purposes of collective bar-
gaining.
In the event a majority of the employees in group (a) vote for the
Petitioner, they will be taken to have indicated their desire to be
represented by such union, and, if a majority in group ( b) likewise
vote for the Petitioner, the Regional Director is instructed to issue a
-certification of representatives to the Petitioner for an employer-
wide unit, and under such circumstances the Board finds this unit to
be appropriate for purposes of collective bargaining.
[Text of Direction of Election omitted from publication in this
-volume.]
4 The Petitioner at first desired to exclude the service salesman , but later stated that
any Board determination would be agreeable to it. The service salesman sells repair
and other automobile services to the customers , and delivers the written service orders
to the various employees who perform the work. Like the mechanics and other service
employees , he is under the supervision of the service and parts manager . As his interests
are similar to those of the service employees , we have included him in this voting group.
Hanna Motor Company, supra.
6 The janitor cleans the offices and the showroom ; when he has time, he also cleans
the mechanics ' shop. At the Petitioner 's request, and over the Employer 's objection,
we have Included this employee . See Roanoke Cas Company, 94 NLRB 1431 ; California
Spray Chemical Corp., 86 NLRB 453.
SALT RIVER VALLEY WATER USERS ASSOCIATION, AN ARIZONA CORPORA-
TION and LEO STURDIVANT
INTERNATIONAL BROTHERHOOD OF ELECTRICAL WOI:KERS, LOCAL 266-B,
AFL and LEO STURDIVANT
SALT RIVER VALLEY WATER USERS ASSOCIATION, AN ARIZONA CORPORA-
TION and A. E. ARC FIE, R
INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, LOCAL 266-B,
AFL and A. E. ARCHER. Cases Nos. 21-CA-963, 21-CB-312,
21-CA-991, and 21-CB-318. June 24,1952
Decision and Order
On June 19, 1951, Trial Examiner Wallace E. Royster issued his
Intermediate Report in the above-entitled proceeding finding that
the Respondent Association had engaged in and was engaging in
99 NLHR No. 129.
850 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
certain unfair labor practices' 'arid r' ecommending that it I cease and
desist therefrom and take certain affirmative action, as set forth in
the copy of the Intermediate Report, attached hereto. The Trial
Examiner also found that the Respondent Union had not engaged in
the unfair labor practices' alleged iii the consolidated complaint and
recommended dismissal of those allegations. Thereafter, the Re-
spondent Association and the `Generat Counsel filed exceptions and
supporting briefs, and the Respondent Union filed a statement in
support of the Intermediate Report.' ` -
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed.
The rulings are affirmed. The Board has considered the Intermediate
Report,' the exceptions and briefs, andthe'entire record in the case,.
and adopts certain of the findings' of fact, conclusions, and recom-
mendations of the Trial Examiner and rejects others. Our additions,
and modifications are discussed below.`
The Board's Jurisdiction
1. We agree with the Trial Examiner that the Association is en-
gaged in activities affecting commerce within the meaning of the Act.
We have previously considered the interstate character of the Asso-
ciation's operations. Salt River Valley Water Users Assn., 32 NLRB
460. The Association contends here, however, that, since 1949, the As-
sociation has conducted irrigation operations only, and that these irri-
gation operations are not subject to the Board's jurisdiction. It rests
this contention on 1949 amendments to a contract between it and, the'
Salt River Project Agricultural Improvement and Power District
(hereafter referred to as the-District), transferring to the District
the operation of the electric power system previously operated by
the Association.
We hold that the Association's irrigation operations are within
the purview of the Act. The Association operates and maintains
the irrigation system for the 242,000 acres of land in the Salt River
1 The Respondent Association has requested oral argument . In our opinion the record,
the exceptions , and briefs fully present the issues and the position of the parties. -
Accordingly , this request is denied.
2 We correct certain inadvertencies in the Intermediate Report. In discussing the
business of the Association , the Trial Examiner said that Don Barrett , sales manager
of a Phoenix , Arizona , packing and shipping company , testified that his employer packed
a substantial amount of lettuce for interstate shipment . The witness ' testimony referred
to all produce packed by his employer and not lettuce alone. This correction does not
detract from the Trial Examiner 's basic finding that the Association, in supplying water,
is performing a service essential to the raising of crops, of which substantial amounts
find their way into channels of interstate commerce.
The reprint of the petition circulated by employees Leo Sturdivant and A E Archer
is correct in substance and effect . The original admitted in evidence discloses , however,
that the terms "I/we," "me /us," and "my /our" were used at points where "we," "us" or
"our," respectively , appear In the Intermediate Report ' s quoted version.
SALT RIVER VALLEY WATER USERS ASSOCIATION 851
Valley, 213,000 of which are under irrigation. Its operating revenue
for the irrigation project in 1949 exceeded $3,300,000. In 1950, it
purchased locally supplies amounting to more than $46,000, 90 per-
cent of which originated outside the State. The value of crops grown
on the Project in 1950, with the aid of irrigation, was approximately
$33,000,000. The irrigation plant facilities are valued in excess of
$16,000,000. The record shows that in the 1949 and 1950 seasons a
substantial amount of lettuce was shipped out of Arizona from the
Salt River Valley.3 In addition, the sales manager of a Phoenix,,
Arizona, packing and shipping company, Don Barrett, testified that
all but 150 of the 1,500 cars of produce grown on Association lands and
packed by his employer in 1950 were destined for out-of-State ship-
ment. It strains credulity to ignore Respondent Association's irri-
gation operations in assessing its close and substantial contribution
to the products intended for interstate shipment. Indeed, a record
exhibit, the June 1, 1950, biennial report to the shareholders of the
Association and the District, recognizes this. Its introductory page
carries an excerpt which reads in part : "The importance of the
Water Users' Association cannot be overemphasized. It affects the
daily life of everyone in Arizona. . . . This agricultural empire
created by the Reclamation Act of 1902 is the basic industry for the
entire state of Arizona. Every city in the state, every citizen, every
school district, every individual enterprise is dependent upon the con-'
tinuing prosperity of the irrigated farm lands." 4 In view of the mag-
nitude of the reclamation project and the enormous value of the crops
grown for out-of-State shipment, any interruption to the Association's
continuous operation undeniably must form an impediment to the free
flow of commerce. The Board's policy of asserting jurisdiction over
3 Marketing Arizona Salt River Valley Lettuce, Summary of 1949 Fall and 1950 Spring
Seasons. U. S Dept. of Agriculture Production and Marketing Administration (April
1950.)
4 The Respondent Association's argument that there is no showing of the exact amount
or percentage of water supplied to its shareholders does not alter our conclusion Un-
deniably, crop growth is dependent upon the Association's irrigation function There
appears to be some private pumping of underground water. (seepage from irrigation), but
the Association's bylaws show that this is under the Association's strict supervision The
Association's bylaws declare that the underground water "is maintained largely by seepage
from the irrigation works and percolations from irrigation on the project," that this
water is subject to recapture by the United States or the Association, and that the
Association "will from time to time pump water from such underground water supply to
add to the supply of developed water available for use on the project." Pumping of the
underground water supply is permitted to the individual for use on his land, "provided
by so doing he does not use more than his fair proportion of water or does not prejudice
or diminish the supply of the Association for project purposes or the right of other
shareholders to pump from the underground supply for the benefit of their lands on an
equality with the other lands of the project." The bylaws further provide: "In order
that the rights of the Association and its shareholders may be protected in the under-
ground supply, the installation and operation of all pumps pumping from said supply
for irrigation purposes for the benefit of individual shareholders shall be subject to rules
and regulations adopted by the Board of Governors of the Association." Other sections of
the bylaws provide for construction, operation , and maintenance of the pumps under
Association supervision.
852 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
comparable projects in the nature of public utilities will not be de-
parted from in this case.5
But water is not only supplied by the Association to shareholders
raising crops for interstate shipment. As described by the Trial
Examiner, water is furnished to the Phelps Dodge Corporation for
use in connection with interstate copper mining operations at Morenci,
Arizona.6 The treasurer of both the District and the Association,
Daniel Boone, testified that the arrangement with Phelps Dodge pro-
vided that if the water removed "would have otherwise flowed through
a dam that would have made electricity for our purposes, then they
pay us a fee for the electricity that was not generated and therefore
lost to the project because . . . the water did not flow through
the dams." In 1950 Phelps Dodge paid the Association approximately
$33,000 for such power losses . That the Association, and not the Dis-
trict, controls the 1944 contract arrangement with Phelps Dodge is
further evidenced by the December 4, 1950, minutes of the Associa-
tion's board of governors at which consideration was given to a pro-
posal by Phelps Dodge Corporation to advance $1,500,000 without
interest to line various canals in return for certain water uses.
Moreover, assuming that the 1949 amendments to the contract be-
tween the Association and the District effected a separation of the
electric power operations from the Association, we find that the Asso-
ciation's functions are necessary for the District's continued power
supply. The June 1, 1950, biennial report, mentioned above, shows
income from the sale of electric power for a 2-year period amounting
to nearly $17,000,000. Electric power is supplied to such enterprises
as Inspiration Consolidated Copper Company," Magma Copper Com-
pany, Central Arizona Light and Power Company, municipalities,
and other industrial users. In 1949, 49.5 percent of the District's
power supply was purchased energy, while the remainder of power
was generated or supplied by the Project system. As shown by
Project reports, the conservation of the water resources utilized in
the irrigation operations have a direct effect on the power system.
And the 1949 amendatory contract between the Association and the
District expressly provides that the Association, as agent for the Dis-
trict, shall operate and maintain the irrigation and drainage system
5 W. C. King d/b/a Local Transit Lines, 91 NLRB 623; Plymouth Electric Cooperative
Association, 92 NLRB 1183; Twin Falls Canal Company, 97 NLRB 1473, Black River
Electric Cooperative, 98 NLRB 539.
O The 1944 contract between the parties contained this clause among the various other
preliminary recitals to the agreement , "WHEREAS, copper is a strategic material and its
production in adequate quantities is essential to the successful prosecution of the war in
which the United States is now engaged :"
For it more detailed description of the broad interstate scope of operations carried on
by this corporation, see Phelps -Dodge Corporation, 69 NLRB 536; 40 NLRB 180, 182.
'The Board has repeatedly noted the interstate character of the operations of this
corporation Inspiration Consolidated Copper Company , 44 NLRB 1160, 1162-1163; 49
NLRB 751, 752; 63 NLRB 679, 680.
SALT RIVER VALLEY WATER USERS ASSOCIATION 853
for the use and benefit of the District and its lands. It further pro-
vides that whenever the District shall determine that it is in the best
interests of the lands of the District for any capital additions to or
replacements of the irrigation and drainage system property to be
made, that the Association shall perform, or cause to be performed,
all work required, unless the District decides otherwise. Close coop-
eration in the conservation of water to protect the Project is assured
by the 1949 amendments. Any decrease in agricultural pumping-as
occurred in 1949, according to the power operations report of 1949-
effects a saving in the power system losses. The importance of the
irrigation operations in this regard is shown by the irrigation opera-
tions report of that same year. The report shows plans under con-
sideration to induce artificial rainfall, and comments : "As all water
developed above the hydro lakes will add to our power revenue this
work gives great promise of aiding increase in power income." The
record thus clearly shows that the irrigation operations play an indis-
pensable part in the interstate power system operations.
The Unfair Labor Practices
2. We adopt the Trial Examiner's finding that employee Leo Sturdi-
vant was discharged for circulating petitions among the zanjeros,
designating Sturdivant as agent to take any action necessary to collect
back wages allegedly owing the zanjeros under the Fair Labor Stand-
ards Act of 1938, as amended. We find the discharge a violation of
Section 8 (a) (1) of the National Labor Relations Act, but do not
adopt the Trial Examiner's conclusion that the discharge also consti-
tuted a violation of Section 8 (a) (3).
The Respondent Association argues that Sturdivant's activity was
not "concerted" within the meaning of Section 7, because Sturdivant
acted alone in circulating the petition; and that this activity was not
for "mutual aid or protection," because the statutory rights under the
Fair Labor Standards Act are individual rights not increased by
joint action.
The Board has recently reaffirmed the principle that an activity
may be concerted although it involves only a speaker and a listener.
Group action is not deemed a prerequisite to concerted activity, for
the reason that a single person's action may be the preliminary step
to acting in concert.8 As to the Respondent Association's second con-
tention, joint action may of course assist in financing a suit for back
pay, the end effect of which may be for mutual aid or protection.
And even if only the lesser authority mentioned in the petition were
exercised, that of "negotiation, settlement and/or compromise" to
obtain back wages, mutual aid or protection would appear to be at
° Office Towel & Supply Company, 97 NLRB 449; Root-Carlin Inc., 92 NLRB 1313, 1314.
215233-53-55
854 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
stake.9 We find that Sturdivant's circulation of the petitions was an
activity protected under Section 7, that the Association discharged
Sturdivant for engaging in such activity, and that his discharge vio-
lated Section 8 (a) (1) of the Act.
The Respondent Association does not contest the fact that Sturdi-
vant's discharge was occasioned by his circulating the petitions. It
contends, however, that Sturdivant was discharged because he created
a "disturbance" among his fellow employees and not because he circu-
lated the petition; that the discharge was justified even if there was
no disturbance, as the Respondent Association reasonably thought
that this was the fact.
The record is barren of credible evidence that any single zanjero's
work, including that of Sturdivant, suffered by neglect. In the ab-
sence of proof that there was actual disruption in the work, the Board
has viewed the assertion of comparable reasons as evidence of an em-
ployer's discriminatory intent 10 The Board has also held that if an
employee's activity otherwise falls within the Act's protection, an em-
ployer's good faith in discharging the employee cannot serve to justify
the discharge 11
We find it unnecessary to decide whether the Association's action
in discharging Sturdivant also violated Section 8 (a) (3) of the Act
and do not adopt the Trial Examiner's finding of an 8 (a) (3) viola-
tion. We therefore dismiss that part of the complaint alleging a
violation of Section 8 (a) (3) with respect to Sturdivant.
3. We reverse the Trial Examiner's finding that the Association dis-
criminated against A. E. Archer in violation of Section 8 (a) (3) of
the Act. The record supports the Trial Examiner's finding that
Archer was not discharged or laid off because of his participation in
circulating the petitions, but rather was laid off for failure to bid on a
job vacancy, and that the Association did not violate the Act in this
regard. Unlike the Trial Examiner, however, we find that Archer's
eviction from the Association-owned house and the Association's fail-
ure to notify him of subsequent job vacancies did not stem from his
activities in circulating the petitions and therefore did not violate
Section 8 (a) (1) or 8 (a) (3). The record does not show that the
°N. L. R. B. v. Nu-Car Carriers, Inc., 88 NLRB 75, enforced 189 F . 2d 756 (C. A. 3),
certiorari denied 342 U. S. 919; Smith Victory Corporation, 90 NLRB 2089, enforced 190
F 2d 56 ( C A 2) ; Spandsco Oil d Royalty Company, 42 NLRB 942. This is not the kind
of situation where a petition is circulated for spiteful or personal reasons. See for
example, Joanna Cotton Mills v. N. L. R. B., 176 F . 2d 749 (C. A. 4).
10 Rome Specialty Co , Inc., 84 NLRB 55, 57; Gulfport Transport Company, 84 NLRB 613,
615; F. W. Woolworth Company, 90 NLRB 289, 290.
"American Shuffleboard Co. v. N. L R. B, 190 F. 2d 898 (C. A. 3), enforcing 92 NLRB
1272. The court's statement was : "To adopt petitioner 's view would materially weaken
the guarantees of the Act, for the extent of employees' protected rights would be made
to vary with the state of the employer 's mind . We conclude that if the conduct giving
rise to the employer's mistaken belief is itself protected activity, then the employer's
erroneous observations cannot justify the discharge."
SALT RIVER VALLEY WATER USERS ASSOCIATION 855
Association had any knowledge of Archer's part in circulating the
petitions." Nor are we satisfied that the record supports a finding
that Archer had any rights as a laid-off employee to remain in the As-
sociation-owned house, or to be notified of vacancies by written notice
sent to his last known place of residence. The sparseness of the rec-
ord evidence on these issues may well be attributed to the fact that
they were not among the issues framed by the complaint which the
Respondent Association had an opportunity to answer 13 We there-
fore dismiss that part of the complaint alleging that the Association
violated the Act with respect to Archer.
4. We find, in agreement with the Trial Examiner, that the Re-
spondent Association violated Section 8 (a) (1) in the remarks made
by its watermaster, S. H. Angle, to employee H. C. Selleizl4 The
conversation between Selleiz and Angle, culminating in Angle's pro-
posal to remove Selleiz' name from the petitions, was clearly an inter-
ference with the exercise of the employee's right to engage in con-
certed activity which we have held above is protected by Section 7
of the Act.
5. On this record we find no violation of Section 8 (b) (2) by the
Respondent Union. The Trial Examiner's conclusion, excepted to
by the General Counsel, that the Union did not cause or attempt to
cause the discharge of either Sturdivant or Archer, is borne out by the
record. True, the Union's business agent, Frank R. Hill, advised the
Association's board of governors that the Union did not condone the
petition. The Union also sent a letter to the Association telling it
that the action of "certain" zanjeros in circulating the petition did not
represent union policy. Aside from this letter, there is no evidence
in the record that gives rise to any inference that the Union requested
either Sturdivant's or Archer's termination. The letter further in-
formed the Association that the Union's executive board had decided
to take punitive action "against the individual given the power of
attorney on these petitions." All witnesses who attended the board
of governors' meeting denied that any request was made for Sturdi-
vant's or Archer's discharge. The Association's general manager
testified too that no request was made of him to discharge these em-
ployees. Accordingly, we adopt the Trial Examiner's recommenda-
tion and dismiss the complaint allegations that the Respondent Union
violated Section 8 (b) (2) of the Act.
6. We find, contrary to the Trial Examiner, that the remarks of
Frank R. Hill, chairman of the Union's executive committee, on No-
12 All Association witnesses who testified on this point said that they were aware only
of Sturdivant's participation and had no knowledge of Archer circulating the petitions.
This testimony was unrefuted.
12 Pinkerton'a National Detective Agency, Inc., 90 NLRB 205, 206.
1+ Member Murdock, however, would find that watermaster Angle's remarks to Sellelz
did not interfere with the employee 's statutory rights.
856 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
vember 6, 1950, to employee John H. Tait and on November 2 to em-
ployee J. W. Webber constituted a violation of Section 8 (b) (1) (A)
by the Respondent Union.
Tait testified that Hill asked him whether he had signed the peti-
tion, and that when Tait answered in the affirmative, Hill remarked, "I
assume by this that you want to lose your job?" When Tait answered,
"No," Hill said, "You better get your name off that d thing."
Both then went to the office of the Association's superintendent of wa-
ter distribution for the purpose of Tait writing a memorandum to
the superintendent advising him of the withdrawal of Tait's name
from the petition. During this trip to the office, according to Tait,
Hill "made mention of the fact that all the signers of that petition
would get canned."
Employee Webber testified without contradiction that Hill asked
him to remove his name from the petition and, when he declined to
do so, Hill said, "Well, I am telling you as a friend I would like for
you to take your name off before it is too late."
The General Counsel excepts to the Trial Examiner's finding that
these acts do not "restrain or coerce " the employees questioned within
the meaning of Section 8 (b) (1) (A). We cannot interpret Hill's
statements, as did the Trial Examiner, merely as "predictions of
action" that might be taken by the Association. We believe that a
threat of job loss was intended and understood by the employees to
whom the statements were made 15 Moreover, when these remarks
are considered in the context of the union-security clause then in effect
in the contract between the Union and the Association, their implica-
tion is clear.16 The clause provided that a member could be dis-
charged on union notification to the Association that the member
was not in good standing. An employee might reasonably believe
that the Union could affect adversely his job security by such notifi-
cation. But regardless of the effect of this clause, Hill's statements
could have been intended only as a veiled threat, and we construe
them to fall within the restraint and coercion prohibited by Section
8 (b) (1) (A) of the Act.
The Remedy
Having found that the Respondents have engaged in certain unfair
labor practices within the meaning of Section 8 (a) (1) and Section
15 Seamprufe, incorporation, 82 NLRB 892, 894 ; Painters' District Council No. 6, et al.,
97 NLRB 654; Fox Midwest Amusement Corporation , 98 NLRB 699
1e The Trial Examiner erroneously assumed that the union contract in effect in November
1950 did not contain a union-security clause. It was a later contract between the Associa-
tion and the Union , effective January 2, 1951 , that did not contain the clause.
SALT RIVER VALLEY WATER USERS ASSOCIATION 857
8 (b) (1), we shall order the Respondents to cease and desist there-
from and take certain affirmative action designed to effectuate the
policies of the Act.
Having found that the Respondent Association discriminatorily dis-
charged Leo Sturdivant on November 7, 1950, because he engaged in a
protected concerted activity, we shall direct the Respondent to offer
him immediate and full reinstatement and make him whole for any
loss of pay he may have suffered by reason of the discrimination,
in the manner set forth in the Intermediate Report.
In view of the nature of the unfair labor practices committed, par-
ticularly the discriminatory discharge of Leo Sturdivant, a type of
unfair labor practice which goes to the heart of the Act, we shall order
the Respondent Association to cease and desist from such acts and
from interfering in any other manner with the rights of employees
guaranteed in Section 7 of the Act.
It also having been found that the Respondent Union restrained
and coerced employees in the exercise of rights guaranteed them in
the Act, we shall order the Respondent Union to cease and desist
from such conduct.
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 that :
1. The Respondent, the Salt River Valley Water Users Associa-
tion, its officers, agents, successors, and assigns, shall :
(a) Cease and desist from:
(1) Discouraging concerted activity having for its purpose the
recovery of back wages and overtime payments, by discharging,
refusing to reinstate, or otherwise discriminating against any of its
employees because of their concerted activities.
(2) In any other manner interfering with, restraining, or coercing
its employees in the exercise of the rights to engage in concerted
activities for the purpose of mutual aid or protection as guaranteed
in Section 7 of the Act, or to refrain from any or all of such activities,
except to the extent 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 Leo Sturdivant immediate and full reinstatement
to his former or substantially equivalent position without prejudice
to his seniority or other rights and privileges, and make him whole
for any loss of pay he may have suffered by reason of the Respondent
Association's discrimination against him, in the manner set forth in
section V of the Intermediate Report entitled "The Remedy."
858 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(2) Upon request, make available to the Board or its agents, for
examination and copying, all payroll records, social security pay-
ment records, time cards, personnel records and reports, and all other
records necessary to analyze the amount of back pay due and the right
of reinstatement under the term's of this Order.
(3) Post at its office in Phoenix, Arizona, and at other points
within the project, copies of the attached notice marked "Appendix
A." 17 Copies of said notice, to be furnished by the Regional Director
for the Twenty-first Region, shall, after being duly signed by the
Respondent Association's representative, be posted immediately upon
receipt thereof and maintained by it for sixty (60) consecutive days in
conspicuous places, including all places where notices to zanjeros are
customarily posted. Reasonable steps shall be taken by the Associa-
tion to assure that said notices are not altered, defaced, or covered by
any other material.
(4) Notify the Regional-Director, in writing, within ten (10) days
from the date of this Order, what steps have been taken to comply
therewith.
2. The Respondent, International Brotherhood of Eelectrical
Workers, Local 266-B, AFL, its officers, representatives, agents, suc-
cessors, and assigns, shall:
(a) Cease and desist from :
(1) Threatening employees with economic reprisal for engaging
in concerted activity having for its purpose the recovery of back wages
and overtime payments or, in any like or related manner, restraining
or coercing employees in the exercise of the right to engage in con-
certed activities as guaranteed in Section 7 of the Act, or to refrain
from any or all of such activities.
(b) Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(1) Post at its office in Phoenix, Arizona, and at other places where
notices to members are customarily posted, copies of the notice at-
tached hereto and marked "Appendix B." Copies of said notice, to
be furnished by the Regional Director for the Twenty-first Region,
shall, after being duly signed by the Respondent Union's representa-
tive, be posted immediately upon receipt thereof and maintained by it
for sixty (60) consecutive days in conspicuous places, including all
places where notices to zanjeros are customarily posted. Reasonable
steps shall be taken by the Union to insure that said notices are not
altered, defaced, or covered by any other material.
17 In the event that this Order or any Order herein is enforced by a decree of a United
States Court of Appeals, there shall be substituted for the words "Pursuant to a Decision
and Order" the words "Pursuant to a Decree of the United States Court of Appeals, En-
forcing an Order."
SALT RIVER VALLEY WATER USERS ASSOCIATION 859
(2) Notify the Regional Director, in writing, within ten (10) days
from the date of this Order, what steps have been taken to comply
therewith.
IT IS FURTHER ORDERED that these allegations. of the complaint are
dismissed :
(1) That the Respondent Association did lay off or discharge A. E.
Archer in violation of Section 8 (a) (1) and 8 (a) (3) of the Act;
(2) that the Respondent Association discharged Leo Sturdivant in
violation of Section 8 (a) '(3) ; (3) that the Respondent Union at-
tempted to cause and caused the discharge of Leo Sturdivant and A. E.
Archer in violation of Section 8 (b) (2) of the Act.
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 discourage our employees from engaging in con-
certed activity, having for its purpose the recovery of back wages
or overtime payments, by discharging or refusing to reinstate any
of our employees, or by discriminating in any other manner in
regard to their hire and tenure of employment, or any term or con-
dition of employment.
WE WILL NOT in any other manner interfere with, restrain, or
coerce our employees in the exercise of rights guaranteed them in
Section 7, except to the extent authorized by Section 8 (a) (3) of
the Act.
WE WILL offer to LEO STURDIVANT immediate and full rein-
statement to his former or substantially equivalent position with-
out prejudice to any seniority or other rights and privileges
previously enjoyed, and make him whole for any loss of pay
suffered as a result of the discrimination against him.
SALT RIVER VALLEY WATER USERS
ASSOCIATION,
Employer.
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.
860 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Appendix B
NOTICE
To ALL MEMBERS OF INTERNATIONAL BROTHERHOOD OF ELECTRICAL
WORKERS, LOCAL 266-B, AFL
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 WILL NOT threaten employees of the SALT RIVER VALLEY
WATER USERS AssocIATloN with loss of employment because of
their engagement in concerted activity having for its purpose
the recovery of back wages or overtime payments.
WE WILL NOT in any like manner restrain or coerce the afore-
mentioned employees in the exercise of rights guaranteed them by
Section 7 of the Act, except to the extent authorized by Section
8 (a) (3) of the Act.
INTERNATIONAL BROTHERHOOD OF ELECTRICAL
WORKERS, LOCAL 266-B, AFL
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
STATEMENT OF THE CASE
Upon separate charges duly filed by Leo Sturdivant and A. E. Archer against
Salt River Valley Water Users Association, herein called the Association, and
against International Brotherhood of Electrical Workers, Local 266-B, AFL,
herein called the Union, the General Counsel of the National Labor Relations
Board, herein called, respectively, the General Counsel and the Board, caused
the cases to be consolidated and issued his complaint, dated April 12, 1951,
against the Association and the Union, alleging violations of the National Labor
Relations Act, as amended, 61 Stat. 136, herein called the Act, within the mean-
ing of Section 8 (a) (1) and (3), and 8 (b) (1) (A) and (2) and Section 2 (6)
and (7). Copies of the charges, the consolidated complaint, the order consolidat-
ing the cases, and the notice of hearing were duly served upon the Association,
the Union, Sturdivant, and Archer.
With respect to unfair labor practices, the complaint alleged in substance
that on November 7, 1950, the Union caused the Association discriminatorily to
discharge Sturdivant, and on December 7, Archer. Further, according to the
complaint, the Union restrained and coerced employees of the Association in the
exercise of rights guaranteed in Section 7 of the Act by interrogating such em-
ployees concerning concerted activities and threatening employees with discharge
or other disciplinary action unless they refrained from engaging in concerted
activities and threatening employees with loss of union membership unless they
SALT RIVER VALLEY WATER USERS ASSOCIATION 861
so refrained. The complaint finally alleges that the Association discharged
Sturdivant and Archer for discriminatory reasons in'-violation of the Act and
unlawfully interrogated and threatened employees in respect to their con-
certed activities.
The Association's answer, dated April 16, 1951, denies all of the material al-
legations in the complaint, denies that it is engaged in commerce within the
meaning of the Act, and denies any violation of the Act with respect to the dis-
charge of Sturdivant and Archer or in connection with any interrogation of em-
ployees. The Union's answer, verified April 23, 1951, denies the commission
of unfair labor practices.
Pursuant to notice, a hearing was held in Phoenix, Arizona, before the under-
signed Trial Examiner from May 1 through May 8, 1951. All parties were rep-
resented by counsel, participated in the hearing, and were afforded full oppor-
tunity to examine and cross-examine witnesses, and introduce evidence pertinent
to the issues. At the close of the General Counsel's case-in-chief, I denied mo-
tions made by the Association and the Union to dismiss the complaint in whole
or in part. When such motions were renewed at the close of the hearing, I
reserved ruling. These motions are disposed of in the body of this Report.
All parties were given until May 28 for the purpose of filing briefs. A brief has
been received from counsel for the General Consel1
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 ASSOCIATION
The Association is a mutual, nonprofit corporation, organized in 1903 under
the corporation laws of the Territory of Arizona. It operates a Federal recla-
mation project, known as the Salt River Project, herein called the Project, in
south central Arizona, and has its principal office in Phoenix. The Association
is an association of landowners whose property lies within the geographical
boundaries of the Project and who have subscribed to the Association's articles
of stock.
In 1904 the Association entered into a contract with the United States pro-
viding for the construction of the Project works by the United States and
guaranteeing the repayment by the shareholders to the United States of the
cost of construction. Pursuant to the terms of the contract, the United States
acquired existing irrigation works in the Salt River Valley from various canal
companies, converted them into one system of irrigation, and constructed Roose-
velt Dam, diversion dams and power plants, power lines, and drainage and
irrigation pumps. In 1917 the United States turned over to the Association
the care, operation, and maintenance of the Project by a contract wherein
the Association agreed to repay to the United States the cost of construction
over a period of years. The contract is still in effect and payments are currently
being made to the United States under its terms. In 1937 the Association
entered into a contract with the Salt River Project Agricultural Improvement
and Power District, herein called the District, a corporation organized by the
shareholders of the Association in that year. The District has the same
boundaries and interests as the Association. By this agreement the Association
turned over all its physical assets to the District, agreed to continue the opera-
1 As requested in this brief, the transcript is hereby corrected to show the admission in
evidence of General Counsel 's Exhibit 15.
862 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tions which it had hitherto performed, and to turn over its receipts to the
District. In turn the District agreed to meet all of the financial commitments
of the Association to all creditors, including the United States. The execution
of this contract did not for a number of years result in any outward change in
the business of the Association. It continued as before to deliver water to its
shareholders and to sell the electricity incidentally generated. Effective Novem-
ber 1, 1949, the Association caused, by means of a contract between it and the
District, the separation of its functions in such a fashion that from that date
the Association has confined itself entirely to the delivery of water to its share-
holders. The District has since then been the active and effective operator of
all power phases of the business. The purpose of this separation, as set forth
in the biennial report to shareholders, dated June 1, 1950, over the signature of
R. D. Searles, president of both the Association and the District, was to achieve
certain economies, to place the District and the Association in such a situation
so that neither would be subject to State or Federal income tax, to enable the
District to obtain first priority on power generated on the Colorado River, and
to remove the power system from the jurisdiction of the Arizona Corporation
Commission.
The District furnishes the Association with all power necessary to the opera-
tion of facilities used in connection with the delivery and pumping of water and
sells its surplus power to the Arizona Power and Light Company and to Inspira-
tion Copper Company, among others. The Association, ostensibly as agent for
the District, has since 1944 been under a contractual relationship with Phelps
Dodge Corporation in connection with copper mining operations at Morenci,
Arizona, whereby the Association permits Phelps Dodge to remove water, appro-
priated to the shareholders of the Association, from the Black River in exchange
for water developed by Phelps Dodge by means of construction of a storage dam
on the Verde River. Additionally, Phelps Dodge pays to the Association an
amount equal to the value of the power presumed to be lost by the removal of
the water from the Black River.'
Shareholders in the Association are owners of approximately 242,000 acres
of land in the Salt River Valley. In 1950, 213,000 acres of this land was under
irrigation and supplied with water by the Association. During the same year,
shareholders served by the Association raised crops bringing to the shareholders
a gross return of approximately $37,000,000. The income of the Association
from irrigation in 1949 was in excess of $3,300,000 and the budget estimate of
such income for 1951 is approximately $2,750,000. One of the principal crops
raised within the area served by the Association is lettuce. In the spring of
1950, 10,042 acres of such land was in production of lettuce and the yield for that
season amounted to about 4,770 carloads valued at about $2,600,000. A report
of the United States Department of Agriculture concerning the marketing of
lettuce grown in the Salt River Valley shows that in the 1950 spring lettuce
season only 5,986 cars of lettuce were loaded in the entire Salt River Valley.
Don Barrett, sales manager of a packing and shipping company at Phoenix,
testified that his employer packed about 1,500 cars of lettuce in 1950, all but
about 150 of which were destined for points outside the State of Arizona. All
shipments made by Barrett's company were of lettuce grown on lands served
by the Association. A car of lettuce has a value, depending upon the market,
of approximately $600.
Also in 1950, shareholders on lands served by the Association produced more
than 28,000 bales of cotton having a value in excess of $6,000,000. The United
States Department of Agriculture estimates that 440,000 bales were produced in
2 Both the Black River and the Verde are tributaries of the Salt River.
SALT RIVER VALLEY WATER USERS ASSOCIATION 863
the State in that year. The record contains no evidence pertaining to the
shipment of cotton, but the lack of any important textile industry in Arizona s
compels the conclusion that the cotton must be shipped to mills outside the State.
The position of the Association that it is not in commerce, or in an activity
affecting commerce, may not be sustained. By delivering water to shareholders
who farm approximately 213,000 acres of irrigated land, the Association is
performing a service essential to the raising of crops some of which in substan-
tial amounts find their way into channles of interstate commerce. Clearly, any
interruption in the operation of the Association would have a consequential
effect upon commerce. I find, upon the basis of the delivery of water alone,
that the operations of the Association affect commerce within the meaning of
the Act. Additionally I find that, through the District, the Association is in
the business of generating and distributing electricity to its shareholders and
to various industrial users. The Association, also through the District, is a
substantial purchaser of electrical energy generated by the Bureau of Recla-
mation on the Colorado River.
II. THE ORGANIZATION INVOLVED
International Brotherhood of Electrical Workers, Local 266-B, is a labor
organization affiliated with the American Federation of Labor, admitting to
membership employees of the Association.
III. THE UNFAIR LABOR PRACTICES
For a number of years the Union has been the bargaining agency for sub-
stantially all of the employees of the Association, including zanjeros who turn
water into the lands of shareholders. Each zanjero is in charge of a geographi-
cal area for which he is responsible in connection with the flow of water 24
hours a day, 7 days a week. The Project is divided, for purposes of supervision
at least, into 4 areas, each headed by a watermaster who supervises about 16
zanjeros. The work of a zanjero is of an intermittent nature, but they may
not absent themselves from their divisions for a period in excess of 2 hours
without permission from the watermaster.
For several years some zanjeros have questioned the amount of their wages
and the method of calculating them. Some have asserted that the Association
has failed to pay to them an amount which the Fair Labor Standards Act of
1938, as amended, requires. This matter has been on several occasions a mat-
ter for discussion in union meetings. In February of 1950, after the Fair Labor
Standards Act was amended to require a minimum wage of 75 cents per hour,
interest in the subject was renewed and when the Union began bargaining with
the Association in the summer of 1950, looking toward the negotiation of a new
contract to succeed the current one, it was asserted on the part of the union
negotiators that the Association would have to raise the wage rates of zanjeros
in order to comply with that statute. Apparently dissatisfied with the progress
reported by the negotiators, some zanjeros began to enlist the support of others
in a movement to recover back pay and overtime wages from the Association.
In late October Leo Sturdivant and A. E. Archer circulated a petition among
their fellow zanjeros headed "Designation of Agent and Power of Attorney,"
reading as follows :
We, individually and jointly, each of us being employed by the Salt River
Valley Waters Users Association, a corporation, as a zanjero, and believ-
a The 1947 census of manufacturers published by the Bureau of Census , United States
Department of Commerce , lists no cotton manufacturers in the State.
864 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ing that our employer has failed to pay us as required by the contract be-
tween said employer and Local Union B-266, International Brotherhood
of Electrical Workers and believing that our employer has failed to pay
us as provided by and required by the Fair Labor Standards Act of 1938,
as amended , and believing that our employer is indebted to us for unpaid
regular wages, unpaid overtime wages and liquidated damages, do hereby'
appoint, designate and employ Leo i8turdivant, P. O. 378, Mesa, Arizona a
fellow employee, as agent and attorney in fact with full and complete right,
power and authority to take any and all actions necessary to recover for
us said monies , whether by way of suit or negotiation, settlement and/or
compromise, and we do hereby further appoint, designate and employ said
Leo Sturdivant, as agent and attorney in fact, with full and complete right,
power and authority to employ and engage an attorney at law or attor-
neys at law, to handle the foregoing in its entirety and to represent us,
on such terms and conditions as may be agreed to by and between said Leo
Sturdivant and said attorney (s).
Signed this 26th day of October, 1950, at Phoenix, Arizona.
In a period of several days Sturdivant and Archer secured the signatures of 30
or 35 zanjeros to the petition. Both the Union and the Association soon heard
of this activity, and the Union moved quickly to action. On November 1 the ex-
ecutive board of that organization met to discuss this development, and, not-
ing that such activity constituted a violation of the union oath; that punitive
action might be taken against the signers, voted that all members who had
signed the petitions be called upon to explain their action. The board decided,
also , to notify the Association that the petition was without the sanction of the
Union. On November 5, at a general meeting of the Union, Sturdivant and
Archer explained why they had resorted to the circulation of the petitions and,
hearing the criticism of the appearance of the Union's name in the caption,
agreed to delete any reference to the Union. Sturdivant was instructed at this
meeting to secure the petitions and bring them to a later meeting that same day
for destruction. Sturdivant appeared at the second meeting, but stated that
he was unable to secure the return of the petitions. The executive board voted
that Sturdivant be required to appear before it to answer charges and its chair-
man, Frank R. Hill, told Sturdivant that the latter would be discharged in 3
days. The following morning representatives of the Union, including the presi-
dent and secretary and an international representative, Alfred Shackleford, met
with the board of governors for the Association. Shackleford told the governors
that the Union disavowed any such action as the signers of the petitions con-
templated and that he hoped that the bargaining position of the Union had not
thus been prejudiced.
On November 6 Frank R. Hill asked zanjero John H. Tait if he had signed
the petition. When Tait answered that he had, Hill remarked that unless
Tait wanted to lose his job, he had better remove his name from the petition
as all signers would be fired. Hill and Tait then went to an office of the Associa-
tion where Tait wrote a note indicating his desire to have his name removed
from the petition. J. F. Chambers, the Association's chief clerk, was present in
this office, but the evidence does not persuade we that he participated in any
way in the conversation between Hill and Tait, or that he was aware of the
nature of the transaction.
On November 2, Hill asked zanjero J. W. Webber if the latter had signed the
petition. Webber answered that he had and Hill then asked Webber if he would
remove his name. When Webber declined to do so, Hill remarked, "Well, I
am telling you as a friend I would like for you to take your name off before it
is too late."
SALT RIVER VALLEY WATER USERS ASSOCIATION 865
Contemporaneously, Roderick McMullin, the general manager of the Associa-
tion, having learned that petitions were being circulated among the zanjeros,
instructed E. L. Wilson, superintendent of water distribution, to make an
investigation in that connection. Wilson reported that Sturdivant was the one
primarily engaged in the circulation and that watermasters and zanjeros had
reported seeing Sturdivant engaged in this pursuit at various places about the
Project. McMullin testified that, in the belief that the circulation of the petition
was causing unrest and disturbance among the zanjeros and possibly lowering
their efficiency, he decided to discharge Sturdivant, but recalling that Sturdivant
in May of 1948 had been discharged and then almost immediately reinstated
by the action of some members of the Association's board of governors, decided
to tell the board of his decision. He did so in the same meeting in which repre-
sentatives of the Union had disclaimed any sponsorship for the circulation of
the petitions. The board approved McMullin's proposed action. So, on Novem-
ber 7, Sturdivant was notified that he was discharged. His discharge slip states
that he was fired because he was "an unsatisfactory employee." McMullin
testified that Sturdivant was unsatisfactory in that he was "creating consider-
able disturbance among the zanjeros" by circulating the petition.
Clearly, the discharge of Sturdivant was discriminatory. He had a right
to urge his fellow zanjeros to join with him in a movement to secure payment
of wages and overtime which Sturdivant apparently believed was due them.
It is true that the testimony of the union witnesses is largely to the effect that
Sturdivant was invading a province in which the Union was already in negotia-
tion with the Association. However the flavor of such testimony is really that
the Union was seeking to have the Association raise wages to the amount which
the Union believed the law required, and not to obtain anything for hours already
worked. Sturdivant's purpose was wider. He was attempting to obtain for
himself and others similarly situated a sum of money from the Association
allegedly due because of work performed in the past. Even if it were true that
Sturdivant was attempting to plow the same ground as the Union, it would not
remove his activity from the protection of the Act. Although the Union was
the exclusive bargaining representative and the Association could not deal with
any other, as such, Sturdivant's right to participate in a concerted activity having
for its purpose the obtaining of back wages, is such an activity for which an
employee may not be discriminated against.' No doubt the circulation of the
petition and the discussions which unquestionably accompanied the circulation
did occasion some disturbance, some questioning, and argument among the
zanjeros , but the record is totally lacking in any evidence which even tends to
prove that the zanjeros were in any substantial way interfered with in the
performance of their duties. As has been stated, zanjeros' duty hours are all
hours. So that it might reasonably be asserted by the Association, and perhaps
is so asserted here, that any time that Sturdivant took in getting signers for
the petition necessarily took place on time for which the Association paid him,
and the same of course would be true with respect to any zanjero with whom
he spoke. But there was no rule and as a practical matter of course there
could not have been, which had the purpose or effect of preventing zanjeros
from visiting with others as long as their work was not neglected.
I find that Sturdivant was discharged by the Association on November 7
because he had been circulating a petition in connection with back wages. As
the circulation of the petition was a protected concerted activity, it follows that
Sturdivant's discharge for engaging in such activity was in violation of the Act;
4 Spandsco Oil cE Royalty Company, 42 NLRB 942, 948; Smith Victory Corporation,
90 NLRB 2089.
866 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that by this discharge the Association interfered with, restrained, and coerced
Sturdivant in the exercise of rights guaranteed by Section 7 of the Act and
thereby violated Section 8 (a) (1) of the Act
Minutes of the union meeting on November 5 indicate that Sturdivant 's activity
in connection with the petition began only after the Union failed to move in
respect to back wages in the direction that Sturdivant and other members
believed that it should. As a union member Sturdivant had a right to urge his
representatives to action and a diminution of this right was a pro tanto
circumscription of his right to act in concert with his fellows through the Union.
Had Sturdivant been successful in persuading a majority of the zanjeros to
join in the petition , it would seem to follow that the Union would have to
support his position. By discharging him, the Association lessened the prospect
of such a development and, by thus interfering with Sturdivant's rights under
the Act, stifled a right he held as incident to his union membership. By the
discharge the Association thus discouraged membership in the Union and
thereby violated Section 8 (a) (3) of the Act.`
In late November S. H. Angle, one of the Association 's watermasters,
remarked to zanjero H. C. Selleiz that the name of the latter was on the petition.
Selleiz denied that this was so and Angle insisted that it was . The conversation
ended when Angle said that he would have Selleiz' name removed. How he
would accomplish this the record does not explain . I find that Angle's remark
was a form of inquiry ; that he was verifying through Selleiz information that
he had obtained otherwise ; and that by such interrogation the Association
through Angle interfered with, restrained, and coerced Selleiz in the exercise
of rights guaranteed in Section 7 of the Act . The Association thereby violated
Section 8 (a) (1) of the Act.
It is alleged that the Union attempted to cause, and did cause Sturdivant's
discharge. The facts relied upon to support such a conclusion are:
(1) The Union's order to Sturdivant that he recover the petitions and deliver
them to the Union for destruction.
(2) The statement to Sturdivant by Hill on November 5 that he would be
discharged within 3 days.
(3) The meeting of representatives of the Union with the Association 's board
of governors on November 6 concerning the petition.
(4) The statement by the Union in its letter of November 5 to the Association
that "punitive action" would be taken against Sturdivant.
(5) The statement by Hill to Tait on November 6 that all those who signed
the petition would be discharged , and to Webber that he should take his name
from the petition before it was "too late."
Hill testified that at the meeting with the board of governors , Shackleford
said that Sturdivant had violated the Union 's constitution , but all witnesses
who testified concerning that meeting denied that any request for Sturdivant's
discharge was made. One may wonder why the Union chose to advise the
board of governors of its opposition to the petition activity and its purpose to
discipline Sturdivant when it would seem more logical to make these repre-
sentations directly to the management officials with whom it was then negoti-
ating. But the same perplexity arises if one assumes that the Union did
seek Sturdivant 's discharge . Why go to the board of governors? McMullin
had full authority to make a discharge and, indeed , exercised it.
Sturdivant had embarrassed the Union's officials. Justly or not, he had
accused them of inaction concerning back pay and overtime and in emphasis of
his lack of confidence in the representation he was being afforded , began a move-
6 Nu-Car Carriers , Inc., 88 NLRB 75, 89.
SALT RIVER VALLEY WATER USERS ASSOCIATION 867
ment to accomplish what he felt should be done. Of course the union officials
resented this and their resentment was not based alone upon the fact that the
caption of the petition made incidental reference to the Union. In the union
meeting of November 5, Shackleford made it clear that the petitions must be
destroyed ; removal of the reference to the Union would not suffice.
Against such a background testimony of union witnesses that no request
for Sturdivant's discharge was made would properly be viewed with some skep-
ticism. But McMullin, too, testified that no such request was made of him and
it was he who made the discharge. Again, of course, interest may have played
a part. McMullin apparently felt that he could justify the discharge on the
ground that Sturdivant's actions were disturbing the work of zanjeros. He
may well have known that a discharge at the request of the Union for circu-
lating such a petition would be unlawful.
Hill's statement that Sturdivant would be discharged may have meant that
the Union would demand such action or that the Association would bring it
about without outside encouragement. The latter alternative is just as con-
sistent with the proved circumstances as the former. The same is true of Hill's
remarks to Tait and Webber.
I have no doubt that the Union at least indicated to the Association that it
had no objection to Sturdivant's termination. On November 14, after the dis-
charge, it took formal action (never made effective) to expel him from mem-
bership. But, again, this is no proof that the Union attempted to cause his
discharge.
I conclude that the inferences reasonably to be drawn from the Union's con-
duct concerning Sturdivant do not amount to such a quantum of evidence as
to preponderate in favor of a finding that the Union caused or attempted to
cause his discharge.
In respect to the Union the complaint further alleges and the General Counsel
contends in his brief that a labor organization may not lawfully interrogate its
members concerning participation in a protected activity when the purpose of
the interrogation is to coerce members in the exercise of their statutory rights.
This contention alludes to the questioning of Sturdivant and Archer in respect to
the petitions, the happenings at the union meeting on November 5 when members
were encouraged to withdraw their names from the petition, and the statements
by Hill to Tait and Webber. It is the law, of course, that a labor organization
may not restrain or coerce employees in respect to their rights under Section 7 of
the Act by threatening the security of their employment.6 But apart from this it
is by no means clear that a labor organization is prohibited from interfering with
such rights by threats of loss of membership. Indeed, the language of the statute
and the legislative history behind it both indicate a clear purpose on the part of
the Congress to leave any decision as to admission to or retention of membership
to the discretion of the union.' Thus, while a labor organization may not cause
or attempt to cause an employer to discriminate against an employee for lack
of membership in a union and may not threaten an employee with loss of employ-
ment or subject him to any sort of physical restraint or coercion in that connection,
it by no means follows that an individual may not be denied membership or be
expelled from membership for any reason whatsoever. I believe that any of the
Union's threats directed to any employees of the Association holding out as a
penalty loss of membership in the Union, do not run afoul of the Act. It follows,
I am convinced, that as the Union was under no proscription in respect to uttering
6 Seamprufe, Incorporated, 82 NLRB 892.
7 The statute expressly leaves unimpaired "the right of a labor organization to prescribe
its own rules with respect to the acquisition or retention of membership."
868 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
such threats, it could not have violated the Act by means of interrogations made
for the purpose of discovering to whom the threats should be addressed.
The contract between the Union and the Association has no union-security
provision. Membership in the Union has not been at any time with which these
proceedings are concerned a condition of employment. In this context I do not
believe that the statements of Hill to Tait and Webber reasonably should be con-
strued as a threat that the Union would secure the discharges of those who signed
the petition. So far as this record is concerned, Hill's statements were just as
probably intended as predictions of action by the Association, alone. True
enough, Tait and Webber were, in effect, warned that the Union would not protest
any discharge made by the Association in connection with the petitions. But
this falls short of establishing that the Union threatened them that their dis-
charges would be sought unless they withdrew from the petition activity.
I find that the evidence so far related does not establish that the Union violated
Section 8 (b) (1) (A) of the Act in any particular.
On November 7, as soon as Sturdivant was discharged, Archer, who for some
time had been working as a zanjero in an area contiguous to the one left vacant
by Sturdivant, was instructed to work both his and Sturdivant's divisions.
Archer did so through December T. About November 14 Hill told Archer that
the two divisions would soon be consolidated ; that one zanjero would be assigned
to work both of them ; and that there would be no additional salary for the
increased work.8 A few days later the Association posted an announcement
of the consolidation and invited bids from qualified zanjeros. Watermaster
Angle urged Archer on several occasions to submit his bid, but Archer consistently
refused to do so, claiming that the additional driving made necessary by the
larger territory would cause him to lose money on his car allowance. For the
2-week period following November 7, in accordance with the terms of the col-
lective bargaining agreement, Archer received an additional allowance of $5.50
a day for working the two divisions. On December 6 his pay did not include
this allowance for the previous 2 weeks. Archer telephoned General Manager
McMullin to inquire why he did not receive the additional payment. McMullin
answered, according to Archer, that he knew nothing about it and when Archer
inquired what work there was for him to do, McMullen answered that Archer
had "terminated himself"; and that there was no place in the Association for a
man of his caliber. Archer worked December 7 and on the following day went
to the offices of the Association. There it was decided to give him the additional
payment he claimed for the last 2 weeks of his employment and Personnel Direc-
tor A. W. McGrath told him that he was laid off; that under the terms of the
contract he had a right to bid on any vacancy for which he was qualified for a
period of 6 months. Archer commented that McMullin's statement that he had
no room for a man of his caliber was hardly consistent with a layoff a and asked
McGrath how long he could continue to occupy the house which the Association
had furnished him. McGrath replied that he had no authority to make any ar-
rangement concerning the house. On December 11 at 5 p. m., Archer was notified
by the Association to quit the house by 6 p. m. of the same day. A few days
earlier Archer's counsel had notified the Association that Archer believed him-
self to have been discriminatorily discharged and, inferentially at least, that he
would not voluntarily relinquish possession of the house. Legal proceedings
8 Hill also said that Archer would not be the successful bidder on the consolidated
division . I find no significance , relevant here, in this remark.
9 I' am sure that on December 8 Archer firmly believed that he was out of work solely
because of the part he played in the circulation of the petition. He also believed, perhaps
correctly , that he would be in a better situation to qualify for unemployment benefits under
Arizona law if he were discharged rather than laid off.
SALT RIVER VALLEY WATER USERS ASSOCIATION 869
were started by the Association and a judgment of eviction was secured. On
several occasions between December 7 and the date of the hearing, counsel for
the Association stated to counsel for Archer that Archer was a laid-off employee
but that no openings were available for him.
Superintendent Wilson testified that by virtue of consolidations and otherwise,
a number of vacancies in zanjero positions developed after Archer's layoff. No
direct notification was given to Archer of these employment opportunities, but
invitations to bid were posted at various points in the Project.
The General Counsel contends that Archer was discharged on December 7
because he had participated prominently with Sturdivant in the circulation of
the petitions. The Association asserts that Archer was laid off following the
consolidation of the two divisions because he refused to bid on the new division
and because he refused to accept an assignment to the division vacated by the
successful bidder. The Association further asserts that since December 7, and
at the time of the hearing, Archer has occupied the status of a laid-off employee
who could bid on any vacancy which he was qualified to fill. There is no doubt
that Archer was qualified to handle the zanjero openings which developed after
December 7.
Within recent years, at least until the discharge of Sturdivant, the Association
had consolidated no divisions. Since the consolidation of the divisions once
worked by Sturdivant and Archer, about 15 in all have been consolidated into 8
new divisions. The Association asserts, and there is testimony to support it,
that studies looking toward such consolidations were begun in the summer of
1950 and that the discharge of Sturdivant just happened to offer an opportunity to
effect the first consolidation I do not believe that the evidence will support a
contrary conclusion and I find that the' position of the General Counsel that
Archer's loss of employment flowed proximately from the discriminatory dis-
charge of Sturdivant is not tenable. I agree that under the evidence in this record
it is entirely possible, and perhaps even probable, that no consolidation affecting
Archer would have resulted except for the vacancy caused by Sturdivant's dis-
charge and if there had been no independent intervening development, the causa-
tion of Archer's layoff would stem directly from the discriminatory discharge of
Sturdivant30 But there was such an intervention. Archer was urged to submit
a bid on the consolidated division and had he done so the record quite clearly
indicates he would have been awarded the job. When he failed to bid and when
the new division was given to another, he was offered the division vacated by the
successful bidder but refused it. Archer testified that he did not want the con-
solidated division because of the additional automobile expense involved, and
did not want the vacated division because it would have required him to move
about 25 miles.
The General Counsel stresses the importance of the remark attributed to
McMullin that there was no room in the Association for one of Archer's caliber.
It is argued that this could have reference only to Archer's participation in the
petition activity. Although McMullin denied flatly that he made any such state-
ment, I am convinced that Archer testified truthfully and accurately with respect
to it. It is not such a remark as Archer could be expected to imagine and I am
sure that he did not contrive it. So we have this situation : Archer refused to
accept the employment that the Association had available for him ; he was told
that he had terminated himself and that the Association had no place for one of
his caliber. I find that there was no discrimination practiced against Archer by
the Association in connection with the consolidation of the divisions and that by
his refusal to bid on the consolidated division and his further refusal to accept
10 See Rockwood Stove Works, 63 NLRB 1297.
215233-53-56
870 DECISIONS OF NATIONAL LABOR RELATIONb BOARD
another division, Archer was left without assignment. I find that, as the
Association asserts, Archer was laid off on December 7 and that his layoff was
not caused because of his participation in the circulation of the petition.
By virtue of the layoff, Archer remained an employee of the Association and
under the terms of the contract then existing between the Association and the
Union had a right for the next 6 months to bid on any suitable job opening.
The complaint alleges that the layoff was discriminatory and makes no assertion
with respect to the conduct of the Association toward Archer following December
7. However, I believe that questions concerning Archer's rights as a laid-off
employee and the treatment which he received in that status from the Associa-
tion was fully litigated at the hearing. On December 11, as has been stated,
Archer was served with notice to vacate the house which he had been occupying.
The Association had no immediate need for the premises and the dwelling has
not been used since. Accepting testimony offered on behalf of the Association
that a plan was in contemplation which would require the use of Archer's
house for business purposes, it does not in the least appear that this plan (later
dropped) had approached such a state of fulfillment as to require the immediate
possession of the premises. So some other reason must be found for the pre-
cipitate demand for possession of premises occupied by a laid-off employee. The
utter unreasonableness of the Association's demand that Archer move his family
and goods from a house within an hour after the demand was made leads me to
the conclusion that the Association was using this device to retaliate against
Archer. The Association's conduct in this respect was vindictive and entirely
inconsistent with its position that as a laid-off employee Archer was entitled
to bid on'the next suitable job opening. Just as inconsistent is the Association's
failure to notify Archer of the job openings which later developed. The collective
bargaining contract in effect December 7 required the Association ( section 34,
page 15, 16) to "exercise due diligence" in notifying laid-off employees of va-
cancies. The later contract, effective January 2, 1951, required the Association
(article II, section 20 (f) ) to "bring to the attention of laid-off employees eligi-
ble for reemployment in positions for which they are qualified, any opportunity
for reemployment that may exist during said six months' period by notice
directed to such employees at their last known places of residence." The
Association followed neither of these procedures. Although the Association's
counsel consistently advised counsel for Archer that Archer had been laid off,
he just as consistently stated that no job openings were available . I do not
believe that these representations were incorrect in any particular. It is
entirely possible that each such conversation occurred at a time after one
vacancy had been filled and before another had developed. But at no time was
Archer notified of the existence of a vacancy for which he could bid, and the
Association at no time made any effort to bring to Archer's attention the
existence of such a vacancy. Thus, Archer was deprived of a right which as an
employee was secured to him by the contract.
The only question now remaining is "why." I believe that the answer Is
apparent. Archer had been active in the circulation of the petition. From late
October until the time of the hearing he had continuously been one of a group
which was seeking to obtain settlement of back-wage claims against the Associa-
tion by means of legal process. McMullin demonstrated his hostility to such
concerted activity by discharging Sturdivant, the prime mover in this con-
nection. McMullin's characterization of Archer as one of such caliber that the
Association had no place for, is explainable in this record only by a reference
to Archer's concerted activity. The evidence is that Archer was a satisfactory
worker, that he discharged his function as a zanjero faithfully and without
SALT RIVER VALLEY WATER USERS ASSOCIATION 871
criticism. The conclusion that McMullin discriminated against Archer because
of the latter's participation in the wage-claim activity is the only conclusion
which offers a reasonable explanation for the Association's unceremoniously
abrupt demand that he vacate his house and its consistent disregard of the
provisions in the contract requiring an attempt, at least, to notify a laid-off
employee of a job opening. I find that the Association by failing to accord to
Archer the status of being a laid-off employee (a status which the Association
agrees that he held) discriminated against him in regard to his hire and tenure
of employment and by failing to honor the status which he held under the union
contract discouraged membership in a labor organization. The Association
thus violated Section 8 (a) (3) of the Act. By such discrimination, the Associa-
tion interfered with, restrained, and coerced Archer in the exercise of rights
guaranteed in Section 7 of the Act and thereby violated Section 8 (a) (1) of
the Act.
It is alleged that the Union attempted to cause and did cause either the layoff
or the discharge of Archer. I find nothing in the evidence to sustain this con-
tention. It is true that the Union made no attempt to persuade the Association
to abide by the contract in notifying Archer of vacancies, but this falls short of
establishing any violation of the Act, on its part.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Association set forth in Section III, above, occurring in
connection with the operations of the Association 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 ob-
structing commerce and the free flow of commerce.
V. THE REMEDY
Having found that the Association has engaged in and is engaging in certain
unfair labor practices, it will be recommended that it cease and desist therefrom
and take certain affirmative action designed to effectuate the policies of the
Act. Having found that the Union has not engaged in any unfair labor prac-
tices, it will be recommended that the complaint as to it be dismissed.
Having found that the Association has discriminated in regard to the hire and
tenure of employment of Leo Sturdivant and A. E. Archer, it will be recom-
mended that it offer them immediate and full reinstatement to their former or
substantially equivalent positions,' without prejudice to their seniority and
other rights and privileges.
Having found that the Association discriminatorily discharged Leo Sturdivant
on November 7, 1950, it will be recommended that the Association make him
whole for any loss of pay he may have suffered by reason of the discrimination
against him. Having found that the Association discriminatorily failed to ac-
cord A. E. Archer the status of a laid-off employee in connection with advice
concerning job openings for which he might bid, it will be recommended that he
be made whole for any loss of pay suffered by reason thereof.' In the case of
both it will be recommended that loss of pay be computed on the basis of each
separate calendar quarter or portion thereof during the period from the dis-
u The Chase National Bank of the City of New York , San Juan, Puerto Rico, Branch,
65 NLRB 827.
12 What bids, if any, Archer would have submitted must be determined at the compliance
stage. Presumably , he would have been influenced by the same considerations in that
respect after December 7 as before.
872 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
criminatory action-in the case of Sturdivant, November 7, 1950; in the case of
Archer, from that date which, had he been notified, would have resulted in his
successful bidding on a posted vacancy-to the date when each is offered rein-
statement. The quarterly periods, herein called quarters, shall begin with the
first day of January, April, July, and October. Loss of pay shall be determined
by deducting from a sum equal to that which these employees normally would
have earned for each quarter or portion thereof their net earnings." if any, in
other employment during those periods. Earnings in one particular quarter
shall have no effect upon the back-pay liability for any other quarter. It will
also be recommended that the Association be ordered to make available to the
Board, upon request, payroll and other records to facilitate the calculation
of the amounts of back pay due.
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. International Brotherhood of Electrical Workers, Local 266-B, AFL, is a
labor organization within the meaning of Section 2 (5) of the Act.
2. By discriminating in regard to the hire and tenure of employment of Leo
Sturdivant and A. E. Archer, thereby discouraging membership in a labor organ-
ization, Salt River Valley Water Users Association has engaged in and is
engaging in unfair labor practices within the meaning of Section 8 (a) (3) of the
Act.
3. By interfering with, restraining, and coercing its employees in the exercise
of rights guaranteed in Section 7 of the Act, that Association has engaged in
and is engaging in unfair labor practices within the meaning of Section 8 (a) (1)
of the Act.
4. The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 (6) and (7) of the Act.
5. The Union has not engaged in unfair labor practices within the meaning of
Section 8 (b) (1) (A) and (2) of the Act.
[Recommendations omitted from publication in this volume.]
u Crossett Lumber Company , 8 NLRB 440.
TITAN METAL MANUFACTURING COMPANY and FEDERAL LABOR UNION
No. 19981, AFL. Case No. 6-CA-880. June 04,1952
Decision and Order
On October 29, 1951, Trial Examiner Bertram G. Eadie issued his
Intermediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in certain unfair labor
practices in violation of Section 8 (a) (3) and 8 (a) (1) of the Act,
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. Thereafter, the Respondent filed exceptions to the
Intermediate Report and a supporting brief.
99 NLRB No. 139.