Stockbridge Vegetable Producers, Inc.

National Labor Relations Board - Board Decisions

Jun 29, 1961

131 N.L.R.B. 1395 (N.L.R.B. 1961)

STOCKBRIDGE VEGETABLE PRODUCERS , INC. 1395
payment records, timecards , personnel records and reports, and all other records
necessary to analyze the amounts of backpay due and the rights to reinstatement
under the terms of these recommendations.
In view of the nature of the unfair labor practices committed, I shall recommend,
in order to make effective the interdependent guarantees of Section 7 of the Act, that
the Respondent cease and desist from , in any manner, infringing upon the rights
guaranteed in said Section N.L.R.B. v. Express Publishing Company, 312 U.S. 426;
N.L.R.B. v. Entwistle Mfg. Co., 120 F. 2d 532 (C.A. 4).
Upon the basis of the above findings of fact, and upon the entire record in the case,
I make the following:
CONCLUSIONS OF LAW
1. The Union is a labor organization within the meaning of Section 2(5) of
the Act.
2. By discriminating in regard to the tenure of employment of Norman Hanks,
Joseph Shelton, and James Hodges, thereby discouraging membership in a labor
organization , the Respondent has engaged in and is engaging in unfair labor prac-
tices within the meaning of Section 8(a)(3) of the Act.
3. By interfering with, restraining, and coercing its employees in the exercise of
the rights guaranteed in Section 7 of the Act, the Respondent has engaged 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 affect commerce within the meaning of
Section 2(6) and (7) of the Act.
5. The allegations of the complaint that the Respondent invalidly discharged
Rogers Carter have not been sustained.
[Recommendations omitted from publication.]
Stockbridge Vegetable Producers , Inc. and Local No. 164, Inter-
national Brotherhood of Teamsters , Chauffeurs, Warehouse-
men and Helpers of America , Ind. Case No. 7-CA-828. June
29, 1961
DECISION AND ORDER
On January 3, 1961, Trial Examiner William J. Brown issued his
Intermediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the copy of the Inter-
mediate Report attached hereto. Thereafter, the Respondent and the
General Counsel filed exceptions to the Intermediate Report together
with supporting briefs.
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and briefs, and the entire record in
the case and hereby adopts the findings, conclusions, and recommen-
dations of the Trial Examiner with the following additions and
modifications.
1. We agree with the Trial Examiner that Respondent did not
violate Section 8 (a) (4) of the Act by Shilling's statements to the nine
discriminatees on August 1, 1960, that they could not be put to work
"because of the Union" and until the "union thing" was settled, for no
131 NLRB No. 162.
1396 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
unfair labor practice charges had been filed at the time these state-
ments were made.' However, the complaint alleges, and we find, that
Respondent did violate Section 8(a) (1) of the Act by these state-
ments of Shilling.
2. We agree with the Trial Examiner that Respondent violated Sec-
tion 8 (a) (1) of the Act by Shilling's promise of benefits made to the
nine discriminatees on July 30, 1960, on condition that they abandon
the union. In adopting this finding, however, we do not adopt the
implication expressed in the Intermediate Report that, because Shil-
ling informed the employees of Respondent's explicit instructions not
to make such promises, such information might preclude his con-
temporaneous promises of benefit from being found violative of Sec-
tion 8(a) (1).
3. Although the Trial Examiner found that Respondent violated
Section 8(a) (1) and (3) of the Act by discharging nine employees on
July 28, 1960, he did not recommend the award of backpay for any
period including and subsequent to August 1, 1960, on the ground that
any loss of pay suffered by the discriminatees on and after that date
was a consequence of their refusal to work unless the entire crew was
employed. We do not agree.
On August 1, 1960, it is clear that Respondent did not have sufficient
work for all nine discriminatees. Respondent's foreman, Shilling,
said that he had work for only four men, and offered to take back any
four of the nine discriminatees. At no time did Shilling make a
specific offer of work to four identified employees. He merely stated
that he had work for four, and was willing to take back four. Fur-
thermore, Shilling's offer of work on August 1, 1960, was couched in
such a way that it was not clear whether he was offering four em-
ployees work for that day only, for the rest of the week, or for the rest
of the season.2 In view of the foregoing factors, we do not believe
that Respondent made a valid offer of reinstatement to the discrimi-
natees on August 1, 1960. It is purely conjectural whether the nine
discriminatees would have continued to insist that none would work
unless all worked if the Respondent had made a proper offer of re-
instatement on that date. Since it does not appear that Respondent
made a valid offer of reinstatement at any time during the remainder
of the 1960 season, we shall award the discriminatees backpay from
the date of discrimination to the date of a valid offer of reinstatement,
or placement on a preferential hiring list.
I See American Snuff Company, 109 NLRB 885, 893.
2 The record indicates that there were times during the remainder of the season when
Respondent packed as much or more lettuce as it had packed on the days when it had
11 employees working Therefore, there apparently were times when Respondent could
have used all of the discriminatees
STOCKBRIDGE VEGETABLE PRODUCERS, INC.
THE REMEDY
1397
If the 1961 season has not begun at the time this Decision and Order
is issued, we shall order the Respondent to place the names of the nine
employees here involved on a preferential hiring list to be considered
for reemployment when warehouse operations for which the employees
are qualified are resumed at the Stockbridge warehouse and offered
employment prior to any other person.' On the other hand, if the
1961 season has begun at the time this Decision and Order is issued,
we shall order the Respondent to offer full and immediate reinstate-
ment to the nine discriminatees to their former or substantially equiv-
alent positions,4 without prejudice to any seniority or any other rights
and privileges, and, in the event that there is insufficient work for all
such discriminatees entitled thereto, to dismiss, if necessary, all per-
sons hired subsequent to the Respondent's discrimination. If there is
not then sufficient work available for the remaining employees and
those to be offered reinstatement, all available positions shall be dis-
tributed among them without any discrimination against any employee
because of concerted activities, in accordance with any system of sen-
iority or other nondiscriminatory practice heretofore applied by the
Respondent in its course of business. The Respondent shall place those
employees, if any, for whom no employment is available after such
distribution, on a preferential list, with priority in accordance with
such system of seniority or other nondiscriminatory practice hereto-
fore applied by the Respondent in the conduct of his business, and
thereafter offer them reinstatement as such employment becomes avail-
able and before other persons are hired for such work.
We shall also order the Respondent to make whole those employees
against whom it had discriminated for any losses they may have suf-
fered because of the Respondent's discrimination, by payment to each
of them of a sum of money equal to the amount that he normally
would have earned as wages from the date of such discrimination to
the date of the offer of reinstatement, or placement on a preferential
list, as the case may be, less his net earnings during said period,' the
backpay to be computed on a quarterly basis in the manner established
by the Board in F. W. Woolworth Company.6 Earnings in one par-
ticular quarter shall have no effect upon the backpay liability for any
other such period. We shall also order the Respondent to preserve and
make available to the Board, upon request, payroll and other records
6
a The two employees who were not discriminated against and who continued to work
throughout the 1960 season may be treated in the same way as the nine discriminatees
for purposes of reemployment, provided no distinction is drawn between the two and the
nine based on the concerted activities of the nine discriminatees in 1960
A The Chase National Bank of the City of New York, San Juan, Puerto Rico, Branch,
65 NLRB 827.
5 Crossett Lumber Company, 8 NLRB 440.
0 90 NLRB 289.
1398 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
necessary to determine employment rights and the amount of backpay
due. In accordance with the Board's customary practice, where back-
pay is ordered by the Board but was not recommended by the Trial
Examiner, we shall exclude from the computation of backpay the
period from the date of the issuance of the Intermediate Report to the
date of the issuance of our Decision and Order herein.
The possibility that one or more of the nine employees discriminated
against on July 28, 1960, might have been laid off in a subsequent re-
duction in work force due to lack of available work, even absent the
Respondents' unfair practices, will be taken into consideration in de-
termining the amounts of backpay due these employees, in compliance
with our Order herein.'
ORDER
Upon the entire record in this case, and pursuant to Section 10(c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that Respondent, Stockbridge Vege-
table Producers, Inc., Stockbridge, Michigan, its officers, directors,
agents, successors, and assigns, shall :
1. Cease and desist from :
(a) Discouraging membership in the Union by laying off em-
ployees or discriminating in any other manner in regard to hire or
tenure of employment or any term or condition of employment to
discourage membership in a labor organization, except as authorized
by Section 8(a) (3) of the Act as amended.
(b) Interrogating employees concerning their membership in or
activities on behalf of the Union.
(c) Promising employees economic or other benefits if they refrain
from membership in or activities on behalf of the Union.
(d) In any other manner interfering with, restraining, or coerc-
ing employees in the exercise of the right to self-organization, to form
labor organizations, to join or assist the Union or any other labor
organization, to bargain collectively through representatives of their
own choosing, and to engage in concerted activities for the purpose of
collective bargaining or other mutual aid or protection, or to refrain
from any and all such activities, except to the extent that such right
may be affected by an agreement requiring membership in a labor
organization as a condition of employment as authorized in Section
8(a) (3) of the Act, as amended.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) If the 1961 season has not begun at the time this Order is issued,
place the employees listed in Appendix B on a preferential hiring list
7P V. Prentice Machine Works, Inc, 120 NLRB 417
STOCKBRIDGE VEGETABLE PRODUCERS, INC. 1399
and offer them, in preference to any other persons, employment at
Respondent's Stockbridge warehouse when employment for which they
are qualified becomes available. The selection among the individuals
for employment opportunities as they become available shall be on any
basis determined by Respondent, provided the same is not on the basis
of union membership or activities.
(b) If the 1961 season has begun at the time this Order is issued,
offer to the employees listed in Appendix B immediate and full rein-
statement to their former or substantially equivalent positions without
prejudice to any seniority or other rights and privileges, in the manner
set forth in the section of this Decision entitled "The Remedy."
(c) Make each of the employees listed in Appendix B whole for any
loss of pay suffered by reason of the discrimination against them, in
the manner set forth in the section of this Decision entitled "The
Remedy."
(d) Preserve and, upon request, make available to the Board or its
agents, for examination and copying, all payroll records, social security
payment records, timecards, personnel records, and all other records
and reports, including records as to receipt of goods and shipment of
goods from the Stockbridge warehouse, necessary to analyze the
amounts of backpay due and the right to reemployment of the employ-
ees listed in Appendix B under the terms of this Order.
(e) Post in its warehouse at Stockbridge, Michigan, and transmit
to the Charging Union copies of the notice attached hereto marked
"Appendix A." 8 Copies of said notice, to be furnished by the Re-
gional Director for the Seventh Region, shall, after being signed by
Respondent's representative, be posted by the Respondent at its ware-
house, immediately upon the receipt or upon the reopening of the ware-
house, whichever occurs later, and maintained by it for 60 consecutive
days thereafter in conspicuous places where notices to employees are
customarily posted. Reasonable steps shall be taken to insure that said
notices are not altered, defaced, or covered by other material.
(f) Notify the Regional Director for the Seventh Region, in writ-
ing, within 10 days from the date of this Order, what steps Respondent
has taken to comply herewith.
IT IS FURTHER ORDERED that the allegations of the complaint respect-
ing the violation of Section 8 (a) (4) be dismissed.
MEMBER RODGERS took no part in the consideration of the above
Decision and Order.
8 In the event that this Order 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 , Enforcing an Order."
1400 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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, as amended, we hereby notify our employees that :
WE WILL NOT discourage membership by our employees in Local
No. 164, International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, Ind., or any other labor
organization, by laying off employees or discriminating in any
other manner in regard to hire or tenure of employment or any
term or condition of employment except as authorized by Section
8 (a) (3) of the National Labor Relations Act as amended by the
Labor-Management Reporting and Disclosure Act of 1959.
WE WILL NOT interrogate our employees concerning member-
ship in or activities on behalf of the above Union, or any other
labor organization.
WE WILL NOT promise our employees economic or other benefits
if they refrain from membership in or activities on behalf of the
above Union or any other labor organization.
WE WILL NOT in any other manner interfere with, restrain, or
coerce our employees in the exercise of the right to self-
organization, to form labor organizations, to join or assist the
above Union or any other labor organization, to bargain collec-
tively through representatives of their own choosing, and to en-
gage in concerted activities for the purpose of collective
bargaining or other mutual aid or protection, or to refrain from
any and all such activities, except to the extent that such right
may be affected by an agreement requiring membership in a labor
organization as a condition of employment as authorized in Sec-
tion 8(a) (3) of the Act, as modified by the Labor-Management
Reporting and Disclosure Act of 1959.
WE WILL, if the 1961 season has not begun at the time this
Order is issued, place the employees listed in Appendix B on a
preferential hiring list and offer them, in preference to any other
person, employment at Respondent's Stockbridge warehouse if
and when employment for which they are qualified becomes
available.
WE WILL, if the 1961 season has begun at the time this Order is
issued, offer to the employees listed in Appendix B immediate
and full reinstatement to their former or substantially equivalent
position without prejudice to seniority or other rights and priv-
ileges previously enjoyed.
STOCKBRIDGE VEGETABLE PRODUCERS , INC. 1401
WE WILL reimburse and make whole each of the employees listed
in Appendix B for any loss of pay they may have suffered by
reason of our discrimination against them on July 28, 1961.
All of our employees are free to become or remain, or to refrain
from becoming or remaining , members of the above Union or any
other labor organization.
STOCKBRIDGE VEGETABLE PRODUCERS, INC.,
Employer.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered , defaced, or covered by any other material.
APPENDIX B
Donald Craft Herchell Craft Roy Brown
Douglas Craft Joseph Kelly Don Salyer
Calvin Craft Lee Conway Raymond Johnson
INTERMEDIATE REPORT
STATEMENT OF THE CASE
This case began with charges filed by Local No. 164, International Brotherhood
of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Ind., hereinafter
sometimes referred to as the Union. The complaint alleges, in addition to juris-
dictional facts, that the above-indicated Respondent interrogated employees concern-
ing their union membership and activities, promised employees economic and other
benefits if they refrained from joining or assisting the Union, and discharged nine
specified employees and refused to reinstate them because of their union membership
and activities. It also alleged that Respondent refused to recall and reinstate the
nine employees referred to above for the additional reason that they filed charges
and gave testimony under the National Labor Relations Act, as amended, herein-
after called the Act. Respondent's answer admits the allegations of the complaint
with respect to the dollar volume and interstate character of its business, denies the
commission of any unfair labor practices, and affirmatively alleges that the em-
ployees referred to in the complaint are "agricultural laborers" within the purview
of Section 2(3) of the Act.
Upon the complaint and answer a hearing was held before the Trial Examiner
Brown, duly designated by the Chief Trial Examiner, at Jackson, Michigan, on
October 18 and 20, 1960. All parties participated in the hearing. Briefs have been
received from the General Counsel and the Respondent which have been fully con-
sidered by the Trial Examiner.
Upon the entire record herein and from my observation of the witnesses, I hereby
make the following:
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF THE RESPONDENT
Respondent is a Michigan corporation with its office and place of business at Stock-
bridge, Michigan . It is engaged in the processing , storage, and sale of lettuce and in
certain other activities in connection with the production of lettuce . The complaint
alleges and the answer admits that during the period June 29, 1960, to July 29, 1960,
a representative period, Respondent sold and shipped from its Stockbridge, Michigan,
warehouse, lettuce valued in excess of $200,000 of which in excess of $82,000 was
sold and shipped directly to points outside the State of Michigan. I find that Re-
spondent is engaged in commerce within the meaning of the Act and that assertion
of jurisdiction is warranted.
1402 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
II. THE LABOR ORGANIZATION INVOLVED
The complaint alleges, the answer admits , and I find that the Union is a labor
organization within the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The background and the issues
Respondent is a nonprofit corporation organized under the laws of the State of
Michigan. There are 11 shareholders of the Respondent Corporation of whom 3
appear to be partnerships and the remaining 8 individuals. All shareholders are
engaged in farming operations in an area within a 10-mile radius of the Respondent's
warehouse at Stockbridge, Michigan. The Respondent was organized in the spring of
1960 and appears to have completed construction of its warehouse and commenced
cooling and warehousing operations toward the latter part of June 1960.
Respondent was organized by the individual and partnership farmers who con-
stitute its shareholders for the purpose of providing on a cooperative basis certain
operations necessary in connection with the large-scale handling of lettuce for the-
market, which operations would be uneconomic for an individual farmer to furnish.
The Respondent Corporation performs for its shareholder members the function
of purchasing seed, allocating acreage for planting as among its shareholders, super-
vising the planting, assigning of planting dates for shareholder members, purchasing
of chemical aids to growth of the lettuce, arranging for the airplane spraying of the
crop, and transportation of the harvested lettuce from the fields to Repondent's ware-
house. It sells lettuce and remits to the grower the proceeds less $1.30 per box
for its expenses. Any surplus is remitted to members on the basis of their volume
of shipments.
Among the shareholders of Respondent Corporation are the partnerships of
Veril Baldwin and Sons and Dave Basore and Sons. One of the members of the
Baldwin partnership is Duane Baldwin who serves as president of Respondent Cor-
poration without compensation. The other members are Veril Baldwin, father of-
Duane, and Danny Baldwin, brother of Duane. One of the partners of the Basore
firm is Donald Basore who serves as vice president of Respondent Corporation also
without compensation. Robert Shilling was manager and foreman of Respondent
Corporation's Stockbridge warehouse operations at all material times and up until
August 8, 1960.
Respondent's answer admits the supervisory status of Shilling; it denies any super-
visory status on the part of Duane Baldwin and Donald Basore. With respect to
Duane Baldwin the evidence herein indicates beyond question that he possesses au-
thority effectively to discharge employees or lay them off and that he gave effective-
instructions to Shilling, the latter admittedly a supervisor. I find that notwithstanding
his uncompensated status , the evidence plainly indicates that Duane Baldwin is a
supervisor within the purview of the Act The status of Donald Basore is , in my view
of the evidence, immaterial to the issues herein as is more fully discussed below.
The growing, harvesting, processing, and sale of lettuce appears to have been a new
venture for most of the participants in Respondent 's operations. The evidence indi-
cates that letture in the field is a highly perishable crop. As one of the witnesses put
it there are only 3 material days in the stage of development of ripe lettuce: the day
before it is ready for picking, the day it is ready for picking, and the day it is too
late for picking. The normal period from the planting to the right date for harvesting
is 65 days. It can readily be seen that the matter of scheduling the planting must be
coordinated with the functions of cooling, storage, and sale at the warehouse. As
indicated above, Respondent's summer 1960 crop was its first and certain difficulties,
some anticipated others unanticipated, were encountered in this scheduling.
It was initially the plan of Respondent corporation to arrange for the planting
by member shareholders of 8 acres of lettuce per day and for the harvesting and
storing at a corresponding rate of the yield from 8 acres per day some 65 days later
for each particular acre. However, due to the vagaries of weather and an unex-
pectedly large yield per acre in many cases, Respondent was faced toward the latter-
part of June with an unexpectedly large harvest of lettuce which had to be picked
and crated in the field and cooled and stored in the warehouse promptly or it would'
be lost because of the perishable nature of the crop.
To perform the work in connection with the receipt of lettuce from the fields at
the warehouse dock, the moving of the lettuce to the coolers and thence to storage
space in the warehouse and eventually to the shipping docks, Respondent hired a
loading crew of 11 employees who performed their work on the dock and inside the
warehouse of Respondent at Stockbridge under the supervision of Robert Shilling.
STOCKBRIDGE VEGETABLE PRODUCERS, INC. 1403
These employees commenced work at varying dates between June 29 and July 21.
The 11 employees in question are as follows: Donald Craft, Douglas Craft, Calvin
Craft, Herchell Craft, Joseph Kelly, Lee Conway, Roy Brown, Don Salyer, Raymond
Johnson, John Horst, and Fred McHenney. Horst started work July 19 and Mc-
1-fenney started work June 30; these two were neither the first nor the last hired at
the warehouse.
On July 22 Lee Conway and Joe Kelly, having secured membership application
cards from the Union , obtained signatures on the cards from all employees except
Calvin Craft, John Horst, and Fred McHenney. About 3 or 4 days later Calvin
Craft signed an application card. Horst and McHenney, although approached to
sign, refused; they never became members of the Union. On July 22, after securing
the signatures of 8 of the 11 warehouse employees, Conway and Kelly returned
to the union office and left the application cards with a union representative.
Thereafter, the Union addressed to Respondent a request for recognition coupled
with a claim of majority representation. The Union's communication appears
to have been received by Danny Baldwin on behalf of the Respondent on July
26, 1960. In connection with the General Counsel's investigation of the charge
in this proceeding, a written statement was received from Duane Baldwin. The
statement, in evidence as General Counsel's Exhibit No. 4, contains Duane Bald-
win's assertion that he had no definite knowledge prior to July 28 that a union
was requesting representation, with the explanation that the letter from the Union
received by Danny Baldwin, according to the returned post office receipt, was in
fact opened by Duane's father, Veril, who placed it on Duane's desk and there-
after informed Duane that he had received a letter; but Duane asserted that he did
not read the letter until "2 or 3 days later." Whether or not Duane Baldwin had
definite knowledge of a representation request on or before July 28, he did have
definite knowledge, as explained below, of the identity of the union members
The complaint alleges that Respondent , by its agents Shilling and Don Basore,
interrogated employees at the warehouse and at their homes concerning union mem-
bership and activities on or about July 26, 1960. It also alleges that Respondent, by
Shilling, on July 30, 1960 , promised employees economic and other benefits to re-
frain from membership in the Union or activities in support of it. The complaint
also alleges that on or about July 28, Respondent discharged 9 of the 11 warehouse
employees ( all the group excluding Horst and McHenney ) because of their mem-
bership in and support of the Union. Finally the complaint alleges that on or about
August 1, and thereafter, Respondent refused to recall and reinstate the discharged
employees for the additional reason that they had filed charges and given testimony
under the Act in connection with their July 28 termination.
Respondent contends that all the warehouse employees are within the agricultural
exemption and therefore the Act's remedial provisions do not apply to them. Addi-
tionally, Respondent contents that the nine employees were laid off for bona fide
economic reasons without knowledge of their umon membership or activities and in
any event without regard thereto and that the refusal to recall them is similarly
innocently motivated . It is further the contention of Respondent that any instances
of promises of benefit for abandoning organization on the part of Shilling were not
only unauthorized but were in violation of Respondent 's express orders. As to in-
terrogation , Respondent 's brief asserts that the only proven instances were with
respect to a single nonunion employee.
B. The agricultural exemption
Respondent 's principal operation is the receipt , cooling, storing , and sale of lettuce.
It owns the warehouse and the dock facilities and leases the vacuum cooler on a
toll basis. The lettuce is grown by the shareholder farmers on their own farms.
Some of Respondent 's employees actually work in the fields of the farmer share-
holders manufacturing boxes in which the lettuce is stored as it is taken from the
ground. The employees involved in the instant case, however, do their work solely
at the warehouse; one, Calvin Craft, had worked for Respondent in the fields prior
to his hiring at the warehouse.
Respondent's answer denies that the Stockbridge warehouse is the only operation
involved in the instant proceeding . Pointing to the variety of other operations per-
formed by Respondent in connection with the planting and harvesting of the lettuce,
Respondent contends that the warehouse operations are incident to and performed
in conjunction with farming operations and that its employees are therefore "agri-
cultural laborers." This position of Respondent as set forth in its answer , as asserted
by its counsel at the hearing and as vigorously pressed in the brief submitted on
behalf of Respondent , is to the effect that although the employees in question per-
formed all their operations in and about the warehouse in connection with the cool-
1404 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ing, storage, and delivery to carriers of the lettuce, these operations cannot be
isolated from Respondent's other operations but rather must be regarded as an
integral part of the entire process of planting, nourishing, harvesting, and ultimately
disposing of the lettuce.
In support of its position in this regard, Respondent cites the case of B. F.
Maurer, an individual, doing business under the name and style of John C. Maurer &
Sons, 127 NLRB 1459. Respondent also relies on Dofflemeyer Bros. v. N.L.R B., 206
F. 2d 813 (C.A. 9), and N.L.R.B v. John W. Campbell, Inc., 159 F. 2d 184 (C.A. 5).
On the issue as to the applicability of the agricultural exemption, the General Coun-
sel's brief advances the position that the agricultural exemption is available only
where the particular employer is itself directly engaged in farming operations For
this position the General Counsel cites Brooksville Citrus Growers Association, 112
NLRB 707, and Central Oklahoma Milk Producers Association, 125 NLRB 419,
enfd. 285 F. 2d 495 (C.A. 10); General Counsel asserts that the Dofjlemeyer case,
supra, has not been followed by the Board and in any event is clearly distinguishable.
The remedial provisions of the Act are limited to "employees." The statutory
definition of "employee" is as set forth in Section 2(3) of the Act. That section
specifically excludes from the statutory concept of "employee" any individual em-
ployed as an agricultural laborer. Furthermore, the current appropriation act for
the Board, following the pattern of prior appropriation acts for more than 10 years
last past, provides:
That no part of this appropriation shall be available to organize or assist in
organizing agricultural laborers or used in connection with investigations, hear-
ings, directives or orders concerning bargaining units composed of agricultural
laborers as referred to in Section 2(3) of the Act of July 5, 1935, . as
amended . . . and as defined in Section 3(f) of the Act of June 25, 1938. .. .
Section 3(f) of the Act of June 25, 1938 (the Fair Labor Standards Act) provides
as follows:
"Agriculture" includes farming in all its branches and among other things in-
cludes the cultivation and tillage of the soil, dairying, the production, cultivation,
growing and harvesting of any agricultural or horticultural commodities .
and any practices . . performed by a farmer or on a farm as an incident to
or in conjunction with such farming operations, including preparation for mar-
ket, delivery to storage or to market or to carriers for transportation to market.
By way of authoritative explanation of the provisions of Section 3(f) of the Fair
Labor Standards Act, the Wage-Hour Administrator has issued Interpretative Bul-
letin 780. The Administrator points out that Section 3(f) embraces both primary
agricultural operations and secondary operations performed by a farmer or on a
farm in connection with primary agricultural operations. In the Administrator's
view, employees engaged in such secondary operations are within the agricultural
exemption only if their operations may be considered as being performed by a
farmer or on a farm With respect to the requirement of performance by a farmer,
the Administrator's bulletin contains the following:
As a general rule a farmer performs his farming operations on land owned,
leased or controlled by him and devoted to his own use. The mere fact there-
fore that an employer harvests a growing crop . . . is not generally considered
to be sufficient to qualify the employer so engaged as a "farmer." Such an
employer would stand, in packing or handling the product, in the same relation-
ship to the produce as if it were from the fields or groves of an independent
grower. (780.15(a)(5).)
And with respect to employees of a cooperative, the Administrator's concept is
set forth in 780.15(b) (1) as follows:
Employees of a farmer's cooperative association, however, are employed not
by the individual farmers who compose its membership or who are its stockhold-
ers, but by the cooperative association itself. . . The work performed by the
farmers' cooperative association is not work performed by a farmer but for farm-
ers. Therefore, employees of a farmers' cooperative association are not gen-
erally engaged in any practices performed by a farmer within the meaning of
Section 3(f) and are not ordinarily exempt.
As to the alternative requirement that the work in question, in order to qualify
the doer as one engaged in agricultural labor, be performed on a farm, the admin-
istrator in paragraph 780.16(a) defines a farm as follows: a tract of land11devoted to the actual farming activities included in-the first part of Section 3 (f). .. .
STOCKBRIDGE VEGETABLE PRODUCERS, INC. 1405
The cases cited by the Respondent on this issue of the agricultural exemption are
inapposite. In the Maurer case it was clearly revealed that the employer was engaged
both in the growing of the celery involved and in the operation of the packingshed,
the latter being the operation immediately concerned. Operations at the packing-
shed consisted solely of cleaning, sorting, and packing for sale. The equipment
there was owned or rented and had a relatively small value. The Board based its
ruling that the agricultural exemption applied on the basis that the employer was
"engaged in the single, indivisible enterprise of growing celery and preparing it for
market." The Board concluded that the packingshed was operated only as an inci-
dent to or in conjunction with the farming operations. The basis of the Board's
decision is summarized in the following quotation:
The Employer packs its own produce, packs only a small amount of celery for
others, has only a modest packingshed financial investment, and utilizes its
packingshed employees for more than one-third of their working time in harvest-
ing operations on its farms, . . .
Member Jenkins vigorously dissented from the Board's holding.
Analysis of the Dofflemeyer case in the Ninth Circuit clearly reveals that the basis
for the court's holding there to the effect that packingshed employees were agricul-
tural laboiers was its regaid for the totality of growing and processing operations as
those of a small family enterprise. The court pointed out carefully that the same
three family membeis were the sole principals in the entire operation of growing,
harvesting, and preparation for market of the grapes there involved. The court con-
cluded that it would be unrealistic to view the packingshed operations as divorced
from the totality of the family enterprise. The Campbell case is also distinguish-
able in that the Respondent there grew itself the tomatoes which were processed in
its packing plant.
Insofar as Respondent performs work through the employees here involved, its
operations are limited to those of receiving, storing, cooling, and preparing for
market goods grown on the farmland owned by others. Respondent's warehouse
employees neither sow nor reap nor is Respondent a farmer or an owner of farm-
land. The agricultural labor exclusion does not apply here.
C. The instances of interrogation
The complaint alleges and the answer denies that Respondent by interrogating
employees as to union membership and activities committed unfair labor practices
within the purview of Section 8 (a) (1) of the Act. The interrogation was allegedly
committed by Robert Shilling on or about July 26, 1960, and by Donald Basore on
or about the same date.
John N. Horst was, as indicated above, hired for work in Respondent's warehouse
about the middle of July. He was approached at work by Conway and Kelly to join
the Union on or about July 26, and after some brief reflection turned down the
request. As indicated above he was retained in employment after the nine union
adherents had been dismissed. Sometime before the dismissal of the nine union mem-
bers, he had, according to his testimony, some conversation with Shilling with refer-
ence to the Union. Horst's testimony is that in the course of this conversation Shilling
asked him if he knew anything of a union and, receiving an affirmative reply,
further asked if Horst had obtained membership or applied for membership in the
Union. According to Horst's testimony Shilling further asked the identity of the
person who approached him to join and the names of those who had signed cards
and was informed that it was Conway and Kelly who approached him and that he
was informed that all had joined except himself and McHenney. The cross-exami-
nation of Horst developed, in this regard, only that any union conversation with
Shilling did not occur on the morning of July 28. The uncontradicted evidence
thus indicates that on or about July 26, Shilling did in fact interrogate Horst as to
his membership in the Union and as to the identity of union members and of the
person who approached him to join the Union.
Fred McHenney was hired for work at the warehouse on or about June 28 by
Dave Basore. At the time of his hiring he was told that he would start at a begin-
ning rate and within 2 or 3 weeks would probably receive a raise. On July 27,
in the evening, McHenney went to see Shilling about the raise that Basore had
promised. In the course of their discussion Shilling asked McHenney whether he
was a member of the Union or knew anything about it. McHenney answered no
to both questions The time element herein is consistent with the testimony of Con-
way that McHenney was not approached to join the Union until the morning of
July 28. McHenney was, as indicated above, one of the two employees who never
joined the Union and who were not required to attend the termination meeting of
1406 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
July 28, and who continued work after the termination of the nine employees who
were members of the Union. McHenney was not cross-examined. On this state
of the record the evidence clearly indicates that Shilling did interrogate him on or
about July 26, as alleged in the complaint concerning his membership in the Union.
Counsel for all parties joined in a stipulation to the effect that Donald Salyer
and Herchell Craft if called as witnesses by the General Counsel would testify on
direct and on any cross-examination as follows: Herchell Craft's testimony would
be that on the afternoon of Saturday, July 30, he returned to the plant and talked
to Shilling at a time when only he and Shilling were present. In the course of their
conversation Shilling inquired of Herchell Craft as to who started the Union.
Donald Salyer's testimony would be that on or about Saturday, July 30, Shilling in-
quired of Salyer at the latter's home as to whether he intended to join the Union
and expressed the hope that he would not join.
Although Donald Salyer and Herchell Craft had been either discharged or laid
off or perhaps recalled on a temporary basis in view of special considerations ap-
parently applicable to them, I find that they were employees at the time these ques-
tions were put to them and that these were additional instances of interrogation of
employees.
The foregoing instances of interrogation are not justified under the doctrine of
Blue Flash Express, Inc., 109 NLRB 591, and constitute violations of Section
8(a) (1).
The complaint alleges and the answer admits that Donald Basore was at all mate-
rial times vice president of Respondent. The complaint alleges and the answer denies
that Basore was at all material times a supervisor within the meaning of Section
2(11) of the Act. The complaint further alleges and the answer denies that Respond-
ent through Donald Basore on or about July 26, 1960, interrogated employees at
the warehouse and at their homes concerning their union membership and activities.
With respect to the supervisory status of Basore the evidence, in addition to admis-
sion in the pleadings as to his status as vice president of the Respondent, consists of
the testimony of Fred McHenney to the effect that he was hired by Dave Basore
on whose farm McHenney had been working prior to completion of the warehouse
construction. It is noted that among the shareholders in respondent corporation is
the partnership of Dave Basore and Sons. The evidence before me with respect to
the supervisory status of Donald Basore consists then merely of the admission in
Respondent's answer that he is a vice president, uncompensated, of Respondent.
In the absence of evidence as to his functions or authority, I find the evidence in-
sufficient to establish that in fact he was a supervisor within the meaning of Section
2(11), particularly in view of the nonprofit cooperative character of Respondent.
Cf. Worden-Allen Company, 99 NLRB 410; Capital Transit Company, 114 NLRB
617. In any event, even if it were to be assumed that he is a supervisor within the
meaning of the Act, the only evidence in the record concerning interrogation by
Donald Basore is in the testimony of Fred McHenney. He testified that on the
morning of July 28, before the noontime layoff of the nine union members and im-
mediately after they had approached McHenney to join the Union, Don Basore
asked McHenney what the group wanted and he replied that Conway and Kelly had
asked him to join the Union. This inquiry by Don Basore is not shown to be di-
rected to union affairs but on the record before me the more likely interpretation of
this inquiry is that it was a natural concern as to what a pair of employees were
doing engaged in conversation with another. There is no evidence that Basore had
any prior knowledge of union activities.
I shall recommend dismissal of this part of the complaint insofar as it alleges im-
proper interrogation by Donald Basore.
D. The promise of benefit
The complaint alleges and the answer denies that Shilling on or about July 30,
1960, promised employees economic and other benefits if they refrained from union
membership or support.
The evidence indicates that on the afternoon of Saturday, July 30, Shilling talked
to a group of seven or eight of the nine union members behind the warehouse. The
employees had come to the plant to pick up their paychecks. There was some delay
in receiving the paychecks due to the fact that they had not been written and it was
apparently necessary to obtain social security numbers Four of the union members,
Conway, Donald Craft, Douglas Craft, and Kelly testified that Shilling made cer-
tain promises in the course of that meeting on condition that the boys give up the
Union. In addition it was stipulated by all parties that the testimony of Herchell
Craft, if called as a witness, would be to the effect that in the course of this meeting
Shilling promised a raise in pay if the employees returned to work without a union.
STOCKBRIDGE VEGETABLE PRODUCERS , INC. 1407
Calvin Craft was present as a member of the group at this time but was not paying
much attention to what was said and does not recall the details as to Shilling 's state-
ments. The existing rate was $1 per hour with no premium for overtime.
Conway testified that in the course of this meeting Shilling said that if the boys
did not bring a union in they would be given a raise or put on piecework which
would be a vehicle of larger earnings . Donald Craft testified that at the Saturday
afternoon meeting behind the warehouse Shilling told the assembled union mem-
bers that if they would forget about the Union he would put them on piecework
which would amount to a 25-cent -an-hour raise:
Douglas Craft testified concerning the Saturday afternoon meeting behind the
warehouse that Shilling stated that the boys should try to figure out a different deal
as to the Union . He further said that they could try piecework which would raise
the boys, on an average , to $1.25 an hour. Kelly corroborated this and testified
that as an alternative for the unionization of the Stockbridge operation Shilling pro-
posed piecework which would amount to about $ 1.25 an hour . The parties stipulated
that Herchell Craft would testify that in the course of the discussion with the group
of union members behind the warehouse on Saturday afternoon Shilling said that
if they would come back to work without the Union they would be given a raise.
It is the position of Respondent that although the foregoing utterances may have
been made by Shilling they were made by him on his individual responsibility and
in violation of express instructions from his superiors in Respondent Corporation.
Shilling testified that any promises he made in the course of the Saturday afternoon
discussion behind the warehouse were in violation of express instructions he received
from his superiors and that he informed the employees that he had been given those
instructions . He recalled telling the group that if they voted to give up the Union
he, personally , would welcome them back to work. Veril Baldwin, the father of
Duane and Dan Baldwin, and a member of a partnership stockholder in Respondent
testified that the Respondent Corporation issued instructions to Shilling that he was
not to make any promises or threats to anyone in connection with employee's mem-
bership or nonmembership in the Union.
With respect to this aspect of the case the evidence clearly indicates and in fact
is not genuinely controverted by Respondent that in the course of the meeting behind
the warehouse on Saturday afternoon , July 30, Robert Shilling did promise economic
benefits to the employees if they would forget about the Union . Respondent's
defense is that Shilling was acting on his own in talking to a group of employees
most of whom he had known for many years on a personal friendly basis and
that he was acting in violation of his instructions and so informed the employees.
The evidence supports this position of Respondent and the question is to its legal
sufficiency.
In view of the provisions of Section 2(13) of the Act I find that the authorities
cited by Respondent from the field of general law relating to corporate liability on
contract and for certain torts of agents beyond their authority are inapposite I find
that Shilling , in making the statements in the course of the Saturday afternoon
meeting behind the warehouse , was in fact acting as the agent of Respondent and
that Respondent is responsible for the promises of benefits made at that time The
fact that general instructions appear to have been issued to him to the effect that
he should not promise benefits in this regard is immaterial in the absence of effective
communication to employees of this mandate from superior authority . In view of
the fact that no employee present at the Saturday meeting is shown by direct or
cross-examination to have been sufficiently impressed by Shilling 's statements as to
his instructions to have recalled them after the event , I cannot conclude on the
total testimony before me that Shilling 's statements as to his instructions effectively
counterbalanced either the coercive effect of his promises or the understanding of
employees that they were effective as proposals of their employer . Cf. Solo Cup
Company, 114 NLRB 121, enfd . 237 F . 2d 521 (C.A. 8). That the boys were all
or almost all personal friends is immaterial.
I conclude that Respondent through Shilling promised benefits on condition the
boys abandon the Union and thereby committed an unfair labor practice within
Section 8 (a) (1) of the Act.
E. The discriminatory layoffs
The employment of the nine union members at Respondent's warehouse was dis-
continued about noon on Thursday, July 28. It is undisputed that the termination
was effected by Duane Baldwin, Respondent 's president , in the course of a speech
he made to the assembled union employees at the warehouse either shortly or im-
mediately following a meeting of about 10 of the shareholder members of Respond-
ent. The General Counsel contends that the employer 's interrogations as to the
1408 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
identity of the union members and the employer's knowedge that it could not operate
with such a drastic reduction in its employee complement coupled with the subse-
quent coercive and promisory statements of Shilling indicate that the real motivation
for the termination of employment was union activity.
The record clearly indicates that the Respndent knew the identity of the two
members of the warehouse crew who were not union members, namely, Horst and
McHenney. The evidence also clearly indicates that these two were not required
to attend the meeting at the warehouse on the morning of July 28 but instead were
permitted to continue their work while the nine union members were addressed by
Duane Baldwin. The record also indicates that Horst and McHenney continued
work following the termination of the others in the case of Horst up until about
September 15 at which time he quit his job to return to school, and in the case of
McHenney up until the latter part of September a week or two after Horst quit.
With respect to the statements made by Duane Baldwin in the course of the
address to the nine union members at about noontime on July 28 the record includes
testimony from six of the union members present at the meeting and from Duane
Baldwin. All witnesses agreed that Duane Baldwin had a little black notebook
which he referred to during the course of his address to the assembled union mem-
bers and that his message essentially was that the volume of lettuce available to be
handled at the warehouse was tapering off and the workload had consequently de-
clined. Duane Baldwin testified that he advised all the boys to take other work if
it should be available, that Respondent would recall the boys if there was work for
them and that he said nothing more. I find, however, that witnesses whose recol-
lection as to the meeting appears to be more reliable and whom I believe to be
credible namely, Conway, Kelly, Calvin, Douglas, and Donald Craft and Salyer
testified that Baldwin also specifically said that certain of the employees before him
would definitely not have further employment with the Company. Employees Con-
way and Donald and Douglas Craft testified that in connection with the latter state-
ment Duane Baldwin looked directly at employees Conway, Kelly, and Donald
Craft apparently known to him to be the leaders in the union movement. This
matter of Duane Baldwin's looking directly at this particular triad would appear to
me by its very nature to be too conjectural and subjective to warrant any finding
or inference from it as to discrimination against the particular three and I make no
such finding or inference. But I do find it of probative value in establishing along
with other indicia of discriminatory motivation referred to herein an improper
motivation for Respondent's termination of its nine union members at that time.
It also appears that there was some work yet to be done on the day of the ter-
mination, namely, July 28, and in fact Duane Baldwin in the course of his address
said there would be a little work to be done that day and he asked for volunteers.
In reply to his request some of the boys including Roy Brown and Raymond Johnson
worked that afternoon. It also appears that there was work for some of the boys
on Sunday, July 31, and again on Monday, August 1. Furthermore, as noted above.
nonunion employees Horst and McHenney continued the same type of work at the
warehouse up until the middle and latter part of September respectively. There
also appears to have been some labor performed at the warehouse after July 28 on
the part of employees who regularly work on the farms of the individual share-
holders and who were called in to work at the warehouse. The testimony indicates
however that this work was performed in the evenings on an emergency basis to
meet the demands for loading particular shipments.
General Counsel's Exhibit No. 8 is a tabulation of receipts and shipments of
boxes of lettuce at Respondent's Stockbridge warehouse during the period June 29,
1960, through August 24, 1960 General Counsel concedes in his brief that his
Exhibit No 8 does show some dropoff in lettuce receipts It is true that there are
indications that the volume of lettuce received at the warehouse was substantially
less after July 28 than it had been previous to that date There are however several
days subsequent to July 28 in which the daily receipts exceeded particular days
during the period covered in the exhibit prior to July 28. The same observation
can be made with respect to daily shipments and total cases handled. In view of
Respondent's admitted unfamiliarity with the total lettuce operation, I conclude
that it would be unreasonable to believe that only July 28 Respondent either knew
the prospective volume of lettuce to be handled at the warehouse in the near or
distant future or that Respondent relied solely on any belief in this regard as the
reason for the termination of the nine union employees on that date.
On the basis of Respondents otherwise unexplained action in selecting the nine
union members for layoff and the other indicia of antiunion animus referred to
above, particularly Respondent's affirmative steps to ascertain the identity of the
members of the union group, and the fact that only the nine union members were
STOCKBRIDGE VEGETABLE PRODUCERS, INC. 1409
addressed on the morning of the layoff while the nonunion men then and thereafter
continued work, I find that Respondent discriminated against the nine union mem-
bers in violation of Section 8(a) (3). Richards and Associates, 110 NLRB 132.
F. The alleged violation of Section 8(a) (4) of the Act
The complaint alleges that on or about August 1, 1960, and at all times there-
after Respondent refused to recall and reinstate the nine union members because,
in addition to union membership, they filed charges and gave testimony in relation
to the charges under the Act.
As indicated above there was some work performed by members of the Union
on the afternoon of July 28. General Counsel's Exhibit No. 8 indicates that
although no box lettuce was received at the warehouse on Sunday, August 31, there
were shipments of 500 boxes on that date. It also appears from the same exhibit
that on Monday, August 1, there was a substantial volume both in the form of
receipts and shipments at the Stockbridge warehouse
General Counsel's Exhibit No. 9 is a photocopy of Respondent's books showing
the daily hours of work for employees at the warehouse during the period July 8,
1960, through September 30, 1960. Analysis of that exhibit indicates that on Mon-
day, August 1, Horst and McHenney each worked 10 hours. On that date none of
the nine union members worked at all. Although their hours of work as indicated
in the exhibit dropped to 21/2 hours each on Tuesday, August 2, Horst and McHen-
ney each worked more than 8 hours per day for the balance of that week. Further-
more, as indicated above, their employment continued at the warehouse up until
the middle of September in the case of Horst and the end of September in the case
of McHenney. General Counsel's Exhibit No. 9 indicates that in the calendar week
following that beginning on August 1, Horst worked a total of 66 hours and McHen-
ney worked 661/2 hours; Cecil Short, who, according to the testimony of Duane
Baldwin also worked on the loading and unloading of lettuce at the warehouse,
worked 661/2 hours while Jerry Moffat worked 91/2 hours on the same type of em-
ployment. Short and Moffat appear to have served as replacements for some of the
laid-off union members.
The charge in the instant case was filed by the Union as indicated above. There
is no indication in the record that any of the individuals filed charges at any time,
or that any of the individuals here involved gave testimony or a written or oral
statement to any Board agent prior to the issuance of the complaint in the instant
case.
Conway, one of the union leaders, testified that after having been notified on
Sunday, July 31, either by Douglas Craft or by Shilling that he should repoit for
work on Monday morning, he arrived at the plant and found it otherwise unmanned
but with work to be done He accordingly commenced work Thereupon, according
to his testimony, Shilling came up to him while he was working in the truck and said
that he was sorry he could not put the boys back until the "union thing" was settled,
this on the advice of the Company's lawyer. On cross-examination Conway amplified
this by adding that Shilling's statement specifically referred to a "complaint" against
the Company. Donald Craft testified that he was called on Sunday by Douglas
Craft who relayed instructions that the boys were all to report for work on Monday
morning around 6 o'clock. Donald Craft's testimony is that when he arrived at
the docks he saw Conway and Shilling talking. As he approached them, Shilling
explained according to Donald Craft, that he might as well give both men the message
that the lawyers had called him and the Company could not put the boys to work
because they had gone too far in that they had filed an unfair labor practice against
the Company and they could not be put to work until the matter was settled.
Douglas Craft testified that he and Herchell Craft reported for work on Monday
morning August 1, some 5 or 10 minutes after the rest of the group had arrived, and
although Shilling said that he had talked with the lawyer the night before, Shilling
did not say in Douglas Craft's presence that the reason he could not put the employees
to work was because they had filed an unfair practice charge. Calvin Craft testified
that he returned to the plant for work on Monday morning August 1, and Shilling
came out and told the group that the Company's lawyer had advised Shilling not to
put the bons back to work "because of the Union."
Joseph Kelly testified that he returned to the plant for work on Monday morning,
August 1, and when he arrived there Conway and the other union members were
standing near their cars. Lee Conway told Kelly that Shilling had said that he could
not put any of the boys back to work because the lawyers told the Company not to
put them back to work until "this thing" was settled Thereafter Shilling came out
and told the group of employees including Kelly that the lawyers had contacted him
599198-62-vol 131-90
1410 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the evening before and that they could not put any of the boys back to work until
"this thing" was settled . He remembers nothing more said by Shilling at that time.
On cross-examination Kelly elaborated by saying that Shilling had reference to the
"union dispute " as the reason why the lawyers advised that the boys not be put back
to work.
The parties stipulated that with respect to this area of the case Herchell Craft
would testify that Shilling told him and his brother that the lawyer had said that no
one could work.
Shilling at first denied telling , at any time , the employees that a lawyer had said not
to let them work because they filed charges . However, when confronted with his pre-
trial statement Shilling admitted that he made the statement to the nine employees on
Monday, August 1, to the effect that the lawyer had said not to let the employees work
because they had filed charges On cross-examination Shilling testified that he did
not have any knowledge at the time of the Monday , August 1, gathering whether or
not any unfair labor practice charge had been filed. He further testified that he had
never talked to Respondent 's attorney , Kelly, about the case and had never been
informed by any of his superiors that the boys should not be restored to work because
of the filing of charges . His explanation is that he made the statements that he did on
the morning of August 1, because the boys were all old friends of his and he was try-
ing to shift the blame for their nonrecall to someone other than himself. Phillip
Kelly, Respondent 's attorney , credibly testified that he never advised Respondent or
any of its agents in the manner attributed to him by Shilling.
Douglas Craft worked on Sunday, July 31, pursuant to an individual invitation
from Shilling extended after the Saturday afternoon discussion behind the warehouse.
He testified and, I find him credible, that on Sunday , Shilling told him to get word
to all of the other boys to come in on Monday morning for work. Shilling denies
that he asked Douglas Craft to notify the entire group to report for work on Monday:
his version is that he had work for only four and he called Douglas Craft , Donald
Salyer, and Donald Craft and asked Douglas to notify Herchell Craft. In this regard
I find the key questions put to Shilling to be as to whether he himself asked all nine to
report or whether he authorized any one else to ask all nine to report for work.
But Shilling 's negative answers to these questions do not militate against Douglas'
credible testimony that Shilling in fact had two conversations with Douglas Craft on
Sunday , July 31; in the first he told Douglas Craft to notify all eight to work and
in the second he informed Douglas he had work only for Douglas and Herchell Craft.
I regard Shilling 's testimony denying that he authorized Douglas to notify all the
group to report as applicable to his final decision as embodied in his second conver-
sation with Douglas. Douglas' credible testimony is that by the time of the second
set of instructions from Shilling he had already called Donald Craft and personally
notified Herchell and Kelly. I find that Shilling pressed with the necessity for man-
ning the warehouse and apparently not, at that time, privy to the high councils of
Respondent determined to and did summon the entire work force for 'Monday,
August 1.
The evidence clearly indicates that the nine union members made an agreement
among themselves sometime after their termination at noon on July 28 that unless
all nine were reemployed none of the group would accept reemployment It also
appears that this agreement had been entered into prior to the 6 o'clock reporting
time on Monday , August 1, and that Conway, as spokesman for the union -employee
group notified Shilling of it when Shilling advised the group at the warehouse that
he would have work only for four employees on that day-offering to take any four
out of the group . There is no evidence that the Union employees ever receded from
their position in this regard . I find and conclude that the preponderance of evidence
of record does not indicate that in fact any employees were discriminated against
because of filing charges or giving testimony . In fact, the real reason why none of
the union-employee group worked on Monday, August 1, is to be found in their
refusal to work unless all nine were given employment . I conclude that Respondent
did not engage in any violation of Section 8(a) (4).
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above , occurring in con-
nection with the operations of the Respondent set forth 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 thereof.
V. THE REMEDY
In view of my findings that the Respondent has engaged in unfair labor practices
-within the meaning of Section 8(a)(1) and (3) of the Act, I shall recommend that
SOUTHERN ELECTRONICS COMPANY, INC. 1411
it cease and desist from such unfair labor practices and take certain affirmative action
necessary in my judgment to effectuate the policies of the Act.
Inasmuch as it appears that the packing season at Respondent's Stockbridge ware-
house has come to an end I shall not order immediate reinstatement of the employees
herein concerned. It may be expected from the evidence in this case, however, that
the warehouse operations will resume insofar as lettuce is concerned sometime in the
late spring or early summer of 1961, and conceivably earlier in the event other crops
are handled. Accordingly, I shall recommend that Respondent be ordered to place
the names of the nine employees here involved on a preferential hiring list to be
considered for reemployment when warehousing operations for which the employees
are qualified are resumed at the Stockbridge warehouse and offered employment prior
to any other person. I shall not recommend any backpay award for any period
including and subsequent to August 1, 1960, to date, since it appears that any loss of
pay suffered by them on and after August 1, 1960, was a consequence of their refusal
to work unless the entire crew was employed. In the event that any backpay herein
would be de mini,nis that aspect may be considered in compliance proceedings.
Upon the basis of the foregoing findings of fact, and upon the entire record in this
case, I make the following:
CONCLUSIONS OF LAW
1. The Respondent is engaged in commerce within the meaning of Section 2(6) and
(7) of the Act.
2. The Union is a labor organization within the meaning of Section 2(5) of the Act.
3. Nonsupervisory employees of Respondent's Stockbridge, Michigan, lettuce
warehouse are employees within the meaning of Section 2(3) of the Act.
4. By interrogating employees with respect to their union membership and activities
and by promising employees economic and other benefits on condition that they
refrain from union activity Respondent has engaged in unfair labor practices within
the meaning of Section 8(a) (1) of the Act.
5. By laying off employees Donald Craft, Calvin Craft, Douglas Craft, Herchell
Craft, Joseph Kelly, Lee Conway, Roy Brown, Don Salyer, and Raymond Johnson
because of their union activities and by failing and refusing to reinstate said employees
or to make them whole for earnings lost as a consequence of their layoff the Respond-
ent has engaged in and is engaging in unfair labor practices within the meaning of
Section 8 (a) (3) and (1) of the Act.
6. The aforesaid unfair labor practices are unfair labor practices within the mean-
ing of Section 2(6) and (7) of the Act.
7. The Respondent has not committed unfair labor practices within the meaning
of Section 8(a) (4) of the Act as alleged in the complaint.
[Recommendations omitted from publication.]
Southern Electronics Company , Inc. and United Steelworkers
of America, AFL-CIO. Case No. 10-CA-445. June 29, 1961
DECISION AND ORDER
On January 17, 1961, Trial Examiner Owsley Vose issued his Inter-
mediate Report in. the above-entitled proceeding, finding that the
Respondent engaged in certain unfair labor practices and recommend-
ing that it cease and desist therefrom and take certain affirmative
action as set forth more fully in the copy of the Intermediate Report
attached hereto. He further found that the Respondent had not en-
gaged in other alleged unfair labor practices and recommended dis-
missal of the complaint pertaining thereto. Thereafter the Respond-
ent filed exceptions to the Intermediate Report and a supporting brief.
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in connection with this case to a three-member
panel. [Chairman McCulloch and Members Rodgers and Leedom].
131 NLRB No. 170.