Barr Packing Co.

In the Matter of E. L. BARR AND MERLE BARR, A CO-PARTNERSHIP, D/B/A BARR PACKING COMPANY,' alnd EDITH MORGAN, JOE GRIMES, FLOSSIE MAE BATY, B. G. GRISSOM, BERNICE BEENE, L. D. BEENE, NADINE RUTLEDGE, VELMA HACKNEY, VERA CLAUDINE LINTON, MYRTLE MAPLE, SHELBY CADDELL, VELMA WILSON, A. C. HACKNEY, EARL RUTLEDGE, S. D. BATY, WILLIAM FLUD, JOHN MAPLE, BOBBY GRISSOM, INDIVIDUALS Case Nos. 20-CA-6 through 20-CA-20, 20-CA-24, 3O-CA-25, and' 20-CA-28.-Decided March 15,1949 DECISION AND ORDER On August 5, 1948, Trial Examiner Louis Plost issued his Inter- mediate 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 filed exceptions to the Intermediate Report and a supporting brief. The Board 2 has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the In- termediate Report, the exceptions and brief, and the entire record in the case, and hereby adopts the findings, conclusions, and recommen- dations of the Trial Examiner, with the following corrections and modifications.3 1. We agree with the Trial Examiner's finding that the Respondent discharged the complainants herein on September 9 and 10, 1947, be- cause of their membership in and activities on behalf of the Union, thereby violating Section 8 (a) (1) and (3) of the Act. In doing so, 1 Name of the Respondent as amended at the hearing. ' Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, as amended, the Board has delegated its powers in connection with these cases to a three-man panel consisting of the undersigned Board Members [ Houston, Reynolds , and Murdock]. & On August 12, 1948, the Trial Examiner issued an Order that the Intermediate Report be corrected to show that the complaint in this proceeding was issued on March 31, 1947, rather than on March 31 , 1941 , as appears in the Intermediate Report. The correct date of the issuance of the complaint , however, is March 31, 1948. 82 N. L. R. B., No. 1. 1 2 DECISIONS OF NATIONAL LABOR RELATIONS BOARD we rely particularly on the following: (a) The Respondent's knowl- edge prior to the discharges of the union activity of each of the dis- chargees except Flossie May Baty,4 and the fact that she was told that she was being discharged because of her husband's membership in the Union; 5 (b) The fact that, except for Flossie Mae Baty, all the employees selected for discharge by the Respondent were members of the Union and/or present at the September 3 union meeting; e (c) The statements made by Foreman Hittson and Forelady Callison to several of the dischargees at the time of their discharge that they were being discharged because of their union activity; and (d) The inconsistency between the Respondent's contention that the discharges constituted a necessary reduction in force and its action in rebuilding its male labor force within 3 days after the male discharges by the exact number that had been discharged, and also the inconsistency between its reduction in force contention and its action in hiring five additional female employees the day before it discharged the eight female employees on September 10, 1947.7 2. We also agree with the Trial Examiner that, by the acts of Fore- man Hittson in spying on the September 3 union meeting, and the statements made by Foreman Hittson and Forelady Callison to several 4 The record shows that all the dischargees, except Baty and William Flud and Joe Grimes, attended the September 3 union meeting which was spied upon by the Respondent through Foreman Hittson. The Respondent thus acquired knowledge of the union activity of the dischargees who were present at that meeting through its surveillance of the meeting. Matter of The Electric City Dyeing Co., et al, 79 N. L. R. B 872. Moreover, the Respondent must clearly be held to have had knowledge of the union activity of Flud and Grimes because they were told by Hittson at the time of their discharge that they were being discharged because of such activity. In view of the fact that the Respondent had knowledge of Vera Claudine Linton 's union activity through her presence at the September 3 union meeting, we find it unnecessary to, and do not in any way , rely on the Trial Examiner' s finding that the Respondent also obtained knowledge of Linton 's union membership as a result of Assistant Forelady Moser's interrogation as to such membership on September 9, 1947. The record does not clearly establish Moser's supervisory status, and, accordingly, any knowledge that she may have acquired through the interrogation cannot be imputed to the Respondent r, Matter of Birdsboro Steel Foundry and Machine Company, 54 N L R. B 1274. 6 Although, as indicated above, the record does not show that William Flud and Joe Grimes were at the September 3 meeting, it does show that they joined the Union prior to their discharge . Conversely , the record does not contain proof of the union membership of A. C. Hackney , Bobby Grissom , and Velma Hackney because they were not present at the hearing, but does contain uncontradicted testimony that they were at the September 3 meeting. All the other dischargees, except Flossie Mae Baty, were both members of the Union prior to their discharge and present at the September 3 meeting. Cf . Matter of Harold W. Baker Company, 71 N. L. R. B. 44. 7 After discharging the 10 male employees involved herein on September 9, 1947, the Respondent hired 3 new male employees on September 10, 1947, and 7 more on Septem- ber 12, 1947. The Respondent hired 5 additional female employees on September 9, 1947. With respect to the female employees, it is also significant that the Respondent originally selected for discharge only the 5 wives of the male dischargees after having added the same number of female employees to its force the previous day. The Trial Examiner's finding in this connection , that on the day following the discharges the Respondent rebuilt its labor force to practically its former strength both as to male and female employees, is thus not entirely correct. The actual facts , however , just as strongly refute the Respond- ,ent's reduction in force contention. BARR PACKING COMPANY 3 of the dischargees at the time of their discharge that they were being discharged because of their union activity, as set forth in more detail in the Intermediate Report, the Respondent has violated Section 8 (a) (1) of the Act. In addition, we find that, by Forelady Callison's interrogation of Nadine Rutledge 3 or 4 days before the latter's dis- charge as to whether Rutledge "believed in" the Union and Calli- son's retort to an affirmative reply by Rutledge that "there would be some changes made," as set forth in the Intermediate Report, the Re- spondent engaged in unlawful interrogation concerning Rutledge's adherence to the Union and an implied threat of reprisal for such adherence, in violation of Section 8 (a) (1) of the Act. THE REMEDY Having found that the Respondent has engaged in certain unfair labor practices, we shall order it to cease and desist therefrom and take certain affirmative action designated to effectuate the policies of the Act, as amended. The Trial Examiner found, and as indicated above, we agree, that the Respondent violated Section 8 (a) (1) of the Act by its surveillance of the September 3 union meeting. However, his recommended order did not contain any provision directed particularly at such violation. In addition, we have found that the Respondent violated Section 8 (a) (1) of the Act by its interrogation concerning employee Rut- ledge's adherence to the Union, accompanied by an implied threat of reprisal for such adherence. We are of the opinion, upon the entire record, that the commission in the future of such acts of interference may be anticipated from the Respondent's conduct in the past." We shall, therefore, not only adopt the Trial Examiner's recommended cease and desist provisions, but we shall also order the Respondent to cease and desist from these particular violations of the Act.° We shall not, however, adopt the Trial Examiner's recommendation that the Respondent offer reinstatement to all the employees who were discriminatorily discharged. As pointed out by the Trial Examiner in the section of the Intermediate Report entitled "The remedy," cer- tain of these dischargees have been reinstated or have been offered reinstatement by the Respondent subsequent to their discharge, and, accordingly, are not entitled to a further offer of reinstatement or to back pay beyond such earlier reinstatement or offer. The Trial Ex- aminer found, and we agree, that L. D. Beene and Bernice Beene were reinstated on October 1, 1947, that A. C. Hackney was reinstated on October 16, 1947, that Bobby Grissom was reemployed during the last IN. L R. B v. Express Publishing Company, 312 U. S 426 0Matter of The Electric City Dyeing Co, et at, supna. t^ DECISIONS OF NATIONAL LABOR RELATIONS BOARD week of the Respondent's 1947 season,10 and that Earl Rutledge was offered reinstatement on or about October 7, 1947, and refused the offer. We shall, therefore, not order the Respondent to make any further offer of reinstatement to these dischargees, or order back pay for them beyond the respective dates of their reinstatement or offer of reinstatement, as the case may be.", The Trial Examiner found that on September 27,1947, the Respond- ent offered John Maple his former job, and that Maple refused re- employment. We disagree. According to the testimony of both Maple and Foreman Hittson, the following, in substance, is what occurred on that date. Hittson came to Maple and asked him whether "he would be interested" in going back to his job.. Maple indicated that he would be, but that if he did go back, he "wouldn't take any- thing off anybody." Hittson thereupon turned around and walked off. We are of the opinion that Hittson's query, confined, as it was, to whether Maple "would be interested" in being reemployed, was simply in the nature of a preliminary "sounding out" of Maple's willingness to return to the Respondent's employ, and, in any event, was not a clear and definite offer of reinstatement. Accordingly, we shall order the Respondent to offer reinstatement to Maple and make him whole for any loss of pay he may have suffered by reason of his discrimina- tory discharge from the date of such discharge to the date of such offer.l2 We shall make our usual order, with respect to those dischargees who have not been reinstated or offered reinstatement, that the Re- spondent offer each of them immediate reinstatement and make him whole for any loss of pay he may have suffered by reason of his dis- criminatory discharge from the date of such discharge to the date of such offer. Inasmuch, however, as the record indicates that the Respondent's business is seasonal in nature, we expressly reserve the right to modify the reinstatement and back pay provisions if made necessary by a change of conditions in the future, and to make such supplements thereto as may hereafter become necessary in order to define or clarify their application to a specific set of circumstances not now appearing 13 10 The record establishes more specifically that Bobby Grissom was reinstated on Novem- ber 2, 1947, and we so find 11 As found by the Trial Examiner, William Flud was reemployed by the Respondent on or about October 20, 1947, as a grape picker Like the Trial Examiner, however, and for the reasons set forth by him, we find that this did not constitute a return to substantially equivalent employment , and we shall order that Flud be reinstated to his former or sub- stantially equivalent position ^ Mr. Reynolds would affirm the Trial Examiner's finding that Maple was offered rein- statement on September 27, 1947, and accordingly, would not order the Respondent to make any further offer of reinstatement , or order back pay for Maple beyond that date. 13 Matter of Fairmont Creamery Company, 64 N. L. R B. 824. BARR PACKING COMPANY rj 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 the Respondent, E. I. Barr and Merle Barr, a co-partnership, d/b/a Barr Packing Company, Exeter, California, and its officers, agents, successors, and assigns, shall : 1. Cease and desist from : (a) Engaging in surveillance of any union activities of its employees; (b) Interrogating its employees concerning their adherence to National Farm Labor Union, A. F. L., or any other labor organization, or threatening its employees with economic reprisal for such adherence; (c) Discourarging membership in National Farm Labor Union, A. F. L., or any other labor organization of its employees, by discharg- ing any of its employees or discriminating in any other manner in regard to their hire and tenure of employment, or any term or condition of employment ; (d) In any other manner interfering with, restraining, or coercing its employees in the exercise of their right to self-organization, to form labor organizations, to join or assist National Farm Labor Union, A. F. L., 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, and to refrain from any or all of such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in Section 8 (a) (3) of the Act, as guaran- teed by Section 7 thereof. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Offer to S. D. Baty, William Flud, Joe Grimes, John Maple, Shelby Caddell, B. G. Grissom, Nadine Rutledge, Myrtle Maple, Flos- sie Mae Baty, Vera Claudine Linton, Velma Wilson, Edith Morgan, and Velma Hackney immediate and full reinstatement to their former or substantially equivalent positions without prejudice to their seniority or other rights and privileges; (b) Make whole the employees named in subsection (a) for any loss of pay they may have suffered by reason of the Respondent's discrim- ination against them by payment to each of them of a sum of money equivalent to the amount which he or she normally would have earned as wages from the date of his or her discharge to the date of the 838914-50-vol. 82-2 6 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Respondent's offer of reinstatement, less his or her net earnings during such period ; (c) Make whole L. D. Beene, Bernice Beene, A. C. Hackney, Bobby Grissom and Earl Rutledge for any loss of pay they may have suffered by reason of the Respondent's discrimination against them by payment to each of them of a sum of money equivalent to the amount which he or she normally would have earned as wages from the date of his or her discharge to the date of his or her reinstatement, or the date on which he or she was offered reinstatement, less his or her net earnings during such period; (d) Post at its Exeter, California, plant copies of the notice attached hereto and marked "Appendix A." 14 Copies of said notice, to be fur- nished by the Regional Director for the Twentieth Region (San Fran- cisco, California), shall, after being duly signed by the Respondent's representative, be posted by the Respondent immediately upon receipt thereof and be maintained by it for sixty (60) consecutive days there- after in conspicuous places, including all places where notices to em- ployees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material ; (e) Notify the Regional Director for the Twentieth Region in writing, within ten (10) days from the date of this Order, what steps the Respondent has taken to comply herewith. 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 engage in surveillance of any union activity of our employees. WE WILL NOT interrogate our employees concerning their ad- herence to NATIONAL FARM LABOR UNION, A. F. L., or any other labor organization, or threaten our employees with economic re- prisal for such adherence. WE WILL NOT discourage membership in NATIONAL FARM LABOR UNION, A. F. L., or any other labor organization of our em- ployees, by discharging any of our employees or by discriminat- 11 In the event that this Order is enforced by a decree of a Court of Appeals , there shall be inserted before the words : "A DECISION AND ORDER" the words : "DECREE OF THE UNITED STATES COURT OF APPEALS ENFORCING." BARR PACKING COMPANY "j ing in any other manner in regard to their hire and tenure of employment, or any other term or condition of employment. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their right to self-organi- zation, to form labor organizations , to join or assist NATIONAL FARM LABOR UNION, A. F. L., or any other labor organization, to bargain collectively through representatives of their own choosing, to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to re- frain from any and all such activities except to the extent that such right may be affected by an agreement requiring member- ship in a labor organization as a condition of employment, as authorized in Section 8 (a) (3) of the National Labor Relations Act. All our employees are free to become, remain, or refrain from becoming members of this union or any other labor organi- zation except to the extent that the right to refrain may be af- fected by a lawful agreement requiring membership in a labor organization as a condition of employment. AVE WILL orrER to the employees named below immediate and full reinstatement to their former or substantially equivalent positions without prejudice to any seniority or other rights and privileges previously enjoyed, and make them whole for any loss of pay suffered as a result of the discrimination. S. D. Baty Nadine Rutledge William Flud Myrtle Maple Joe Grimes Flossie Mae Baty John Maple Vera Claudine Linton Shelby Caddell Velma Wilson B. G. Grissom Edith Morgan Velma Hackney WE wir.i, make whole the employees named below for any loss of pay suffered as a result of the discrimination. L. D. Beene A. C. Hackney Bernice Beene Bobby Grissom Earl Rutledge E. L. BARR AND MERLE BARR, d/b/a BARR PACKING COMPANY, 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. 8 DECISIONS OF NATIONAL LABOR RELATIONS BOARD INTERMEDIATE REPORT Messrs. Robert E. Tillman and Eugene K. Kennedy, for the General Counsel. Rogers & Clark, of San Francisco, Calif., by Messrs. Webster V. Clark and Peter A. Ribar, for the Respondent. STATEMENT OF THE CASE Upon 18 individual charges filed on September 16 and 25, and October 9, 1947, by the various individuals, hereinafter called Complainants whose names appear successively in the caption hereof, together with the docket numbers assigned to each individual case by the Board's Twentieth Region, the General Counsel, of the National Labor Relations Board,' (upon due order consolidating the cases for purposes of hearing), by the Regional Director for the Twentieth Region (San Francisco, California), issued a complaint dated March 31, 1941, against Barr Packing Company 2 of Exeter, California, herein called the Re- spondent, alleging that the Respondent had engaged in and was engaging in unfair labor practices affecting commerce within the meaning of Section 8 (a) (1) and (3) and Section 2 (6) and (7) of the National Labor Relations Act, as amended June 23, 1947, herein called the Act. With respect to the unfair labor practices the complaint alleges, in substance: (a) that since July 1, 1947, the Respondent advised, urged, and warned its employees to refrain from assisting, becoming or remaining members of a labor organization, disparaged and expressed disapproval of such labor organization, inquired into its employees' union membership and activities, kept meeting places and concerted activities of its employees under surveillance; (b) that on Sep- tember 9 and 10, 1947, discharged certain of its employees because they joined and assisted a labor organization or the Respondent believed they had done so ; and (c ) that by these acts the Respondent has restrained and coerced its employees in the exercise of rights guaranteed in Section 7 of the Act, and more particularly has violated and is violating Section 8 (a) (1) and (3) thereof. Copies of the charges and the complaint, accompanied by a notice of hearing, were duly served on the Respondent and the Complainants. Thereafter the Respondent filed an answer dated April 16, 1948, denying in substance that it had committed any of the unfair labor practices alleged in the complaint and admitting that it discharged certain of the Complainants, but averring that said discharges were for cause, and further averring that certain of the Complainants voluntarily quit their employment with the Respondent. Pursuant to notice, a hearing was held in Visalia, California, on April 29 and 30, 1948, and at Exeter, California, on May 3 to 7, inclusive, before Louis Plost, the undersigned Trial Examiner, duly designated by the Chief Trial Examiner. The General Counsel and the Respondent were represented by counsel. Full opportunity was afforded the parties to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing upon the issues. At the opening of the hearing the General Counsel moved to amend the complaint in order to correct the designation of the Respondent therein. The Respondent joined in 'The representative of the General Counsel presenting the case at the hearing is also referred to herein as the General Counsel , and the National Labor Relations Board as the Board. ' The parties stipulated at the hearing that the complaint be amended to show that the true designation of the Respondent should be "E L Barr and Merle Barr, a co-partnership, d/b/a Barr Packing Company," and that the Respondent was in fact such a partnership, and so designated. BARR PACKING COMPANY 9 the motion, which was granted by the undersigned. At the close of the evidence in the General Counsel's case-in-chief, and again at the close of the hearing, the Respondent moved to dismiss the complaint as to certain of the Complainants. The undersigned reserved ruling on the motions. The motions are hereby denied. Also at the close of the hearing the undersigned granted without objection a motion by the General Counsel to conform the pleadings to the proof with respect to names, places, and dates. The parties waived oral argument. A date was set for the filing of briefs with the undersigned. Thereafter the Respondent requested an extension of time for the filing of briefs which was granted. A brief has been received from the Respondent and has been considered by the undersigned. Upon the entire record in the case, and from his observation of the witnesses, the undersigned makes the following : FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT The Respondent is a copartnership, formed on or about December 31, 1942, consisting of E. L. Barr and Merle Barr, doing business under the firm name and style of Barr Packing Company. The Respondent is engaged in packing and selling grapes. It maintains its principal office and place of business at Sanger, California, and owns packing sheds at Sanger and Exeter, California, which it operates during a portion of the latter half of the calendar year for the purpose of packing and shipping grapes. Grapes packed by the Respondent at its Exeter shed are all grown in the State of California. During the 1947 packing season, the Respondent packed at its Exeter shed, grapes having a gross value in excess of $100,000, of which more than 90 percent represents the value of grapes shipped from the shed to points located outside the State of California. It. THE ORGANIZATION INVOLVED National Farm Labor Union, affiliated with the American Federation of Labor' is a labor organization admitting employees of the Respondent to membership. III. THE UNFAIR LABOR PRACTICE A. Interference, restraint, and coercion and the discriminatory discharges 1. The organization of the Union Early in July 1947, the National Farm Labor Union, A. F. L., herein called the Union, began an organizing campaign in Exeter, California. Beginning with July 9, 1947, and continuing to mid-September the Union held an open meeting in a public park in Exeter every Wednesday night except that on August 20 a meeting for members only was held in a local church. At this meeting employees of the Respondent were admitted to membership, a local Union was formed, and officers thereof were elected. The Union's campaign was openly cgnducted, handbills were distributed before all meetings, and an account of one of the meetings appeared in a local newspaper under date of July 31. Various wit- nesses testified that at one of the Union's meetings in the Exeter park (where the meetings were customarily held), on the night of September 3, Delton Hittson, 'The National Farm Labor Union , A. F. L., was not a party to the proceedings but is found herein to have admitted certain of the Complainants to membership. 10 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the Respondent's house foreman, was seen in the park at a place from which he could easily observe those in attendance and that Hittson remained in the park and in the vicinity of the gathering during its entire course. Hittson admitted being in the park on the evening in question ; admitted seeing several named employees in the vicinity of the meeting ; admitted speaking to one of them but denied that he knew that a union meeting was taking place at the time. Hittson further testified that he remained in the immediate vicinity of the meeting for "about five or ten minutes" and left before the meeting ended. He testified that he habitually visited the park two or three times weekly from April to October but with the exception of September 3, had never noticed a meeting in the pack attended by the Respondent's employees and that although he had observed various gatherings in the park he never knew their purpose. In corroboration of Hittson the Respondent called Clyde Pierce, the sum of whose testimony was that for a period of approximately 10 minutes he saw and talked to Hittson at a point some 60 or 70 feet from the park bandstand, in front of which the meeting was taking place ; that Hittson told him he was leav- ing and after spending 10 minutes with Pierce, Hittson did leave. Pierce ad- mitted that from the place he and Hittson were in the park, he (Pierce) could clearly see the gathering in front of the bandstand. Hittson admitted that he had been in the park for an hour before he met Pierce. 2. Discharges of September 9, 1947 At the close of the working day, September 9, 1947, the Respondent allegedly discriminatorily discharged 10 of its male employees. No previous notice or warning had been given. The employees alleged to have been so discharged were : Joe Grimes, B. G. Grissom, L. D. Beene, Shelby Caddell, A. C. Hackney, Earl Rutledge, S. P. Baty, William Flud, John Maple, and Bobby Grissom, The discharges were made by Hittson informing the affected individuals that their employment was being terminated and at the same time handing them their pay checks. Each was given two checks, one a regular pay check covering the period ending Thursday September 6, and the other a personal check signed by I. L. Perry, the Respondent's manager, and covering the period from September 6, to the close of work, September 9. The latter check was in full for the hours worked, without any deductions for tax withholdings or social security payments. One of those allegedly terminated was not present, however, Hittson gave the check for the amount due this employee to another for delivery.' Simon Peter Baty testified that "Delton Hittson walked up and handed me a check and walked away right fast." Baty further testified that he then noted that he had been given two checks and thereupon went up to Hittson and asked : Does it mean a lay-off or a fire? He said "It means a fire." I says, "Why?" He says, "Over this Union." He said Perry had been talking practically all afternoon to Mr Barr over the telephone and Mr. Barr wasn't going to have a Union in the house. Baty further testified that Hittson also said : ". . . I saw everyone of your faces up in the park at the meeting the other night"-I don't remember the other words he said-but he said, "I am 4 This employee was Shelby Caddell. Only one check was made out to Caddell as he had not been at work after September S. BARR PACKING COMPANY 11 just as sorry as you fellows are over this because," he said, "I hate to see it go this way because everyone of you has made goods hands and I never worked with a better bunch or more agreeable men than you folks was." John H. Maple testified that he was handed two checks by Hittson and that thereupon , "I [Maple] asked him what it was all about and he said 'It is on account of you boys having joined the Union.' That is what he said." At the same time Hittson handed Maple a check for employee Shelby Caddell who had not reported for work since the preceding Friday. Myrtle Maple, wife of John H. Maple, and also an employee of the Respondent, testified that she was seated in a parked car at the time Hittson handed the checks to her husband and that she heard her husband ask Hittson, "Well, what's this all about?" and that Hittson replied, "It's over the Union." William Flud testified that when Hittson handed him the two checks : "I asked Mr. Hittson what this was for, because I belonged to the Union? and he says, 'yes.' " Joe Grimes testified that he and Flud, who worked together, having finished the day's work : Well, we were just standing there talking, and Delton, he handed the rest of the checks out, give them their checks, came up there. I and Mr. Flud was the last two that got our checks. Mr. Flud says to him "Delton is this over the Union?" Delton says, "Yes." William Earl Rutledge, one of those discharged by Hittson on September 9, testified that he overheard Flud ask Hittson the reason for Flud's discharge and that he overheard Hittson reply to Flud : "Yes, on account of the Union. I was at the meeting the other night and I seen all the guys' faces there." Hittson denied the statements above attributed to him and testified as follows: Well, I went out there and I hurried to catch the boys as they were fixing to leave. I said, "Boys, I hate to have to do this, but the boss give me a bunch of checks and said for me to hand them out. He is going to have to lay you boys off for a while ; that Barr was on him about the expense in the house." Someone asked me, and I believe it was Beene, "Is it on account of my work?" I said, "No. As far as your work is concerned, it suited me all right." He said, "What is the matter, what is this all about?" I said, "I don't know." Then maybe there was another one asked, and finally one or the other said, "Is it on account of the union?" I said, "I don't know a thing in the world about that. Your guess is as good as mine." Hittson further denied holding any conversation whatever with Baty at the time the checks were distributed. He testified that Flud asked if the discharges were "on account of the Union" and that he replied, "As far as I know I don't know a thing in the world about it. The boss give me these checks and said 'Tell the boys I am going to have to lay a bunch off.' " Lila Lee Callison, the Respondent's forelady, testified as follows : Q. Now, did you overhear any conversation that took place between Delton Hittson and Joe Grimes or Bill Flud at that time? [When Flud and Grimes were discharged.] A. I did. 12 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Q. Will you please state in substance what it was? A. Well he just told them that he was sorry , but Mr. Perry had told him that he was going to have to cut down expenses, and that he was going to have to lay off some of the fellows for a while. Q. What if anything did they say? A. Well, one of them asked him-I don't know which one it was now-said, Well, is it because we belong to the Union ?" Delton says, "I don't know anything about it." Q. Did you hear anything else beside that? A. That was all I heard. On September 9, the Respondent employed in its Exeter operations , a total of 18 men, present and working, not including their supervisor (Hittson), a box maker and a field man. In addition to these, two employees were not present, both having been absent since the preceding week . In addition to the men, the Respondent had employed and working the same day a total of 27 women packers, not including their supervisor! 3. Discharges of September 10, 1947 The packing crew had been instructed to report at 10 a. in., September 10. The crew did so report but at 11: 15 a. in. work had not yet commenced and the women were waiting at or near their places of work. At approximately 11: 15 Lila Callison, the packer's forelady came from the office and handed checks to six of the female employees . Each received two checks, one a regular pay check and the other a personal check signed by Perry which brought the pay up to date. The latter check, which was for work performed September 6 through September 9, was in excess of the amount due the recipient as social security payments and tax withholdings were not deducted . Callison told the women to whom she gave the checks that their employment was being terminated. In addition to the six women so discharged, two others were also terminated under circumstances hereinafter discussed. Flossie Mae Baty, wife of Simon Peter Baty, one of the men whose employment was terminated on September 9, testified that at about 5: 30 p. in., of September 9, after the men had been given their checks by Hittson , she went to the office where she met Callison and Emma Moser, the assistant forelady, and there spoke to Callison. Mrs. Baty testified : I asked Lila, I said, "Lila what's this about the men ? Why did the men get their checks?" She said, "They were fired." I said, "What over?" She said, "The union. Mr. Barr went to Fresno and looked at the records and Mr. Baty's name was on it, the union records." Mrs. Baty further testified that Callison stated that the Respondent had "been working on this over a week," and that some of the women would be discharged. Callison according to Mrs. Baty saying, "They will get theirs in the morning. But not you ." Callison then instructed Mrs Baty to report at 10 a. in. the next day. Mrs. Baty testified that the next morning at 11: 15 when Callison On Monday, September 8, 17 packers reported for work. Perry Instructed Callison to 81l up her crew and accordingly by hiring 5 packers not previously employed and the reporting of regular packers, on Tuesday September 9, there was a total of 29 packers at work. BARR PACKING COMPANY 13 was distributing the checks she was the third person to be given a check and as Callison gave her the check : She said, "Mrs. Baty, I really hate to do this to you." I said, "What does it mean, Lila?" She said, "It means you are through." I said, "Well why?" She said, "Over the union." I said, "I haven't joined it yet." She said, "It's on account of Mr. Baty joining it." Callison testified that Mrs. Baty talked to her in the office after the men had been given their checks on September 9. She testified that Mrs. Baty asked, "Lila, what is this, what does this mean?" and that she replied, "Delton has been given his orders to cut the crew down for expenses sake." Other than to say that she had been informed of the lay-off before quitting time and to tell Baty to come in the next morning, this, according to Callison, was the entire conversation. Emma Moser testified in corroboration of Callison's account of the above related incident. Callison's version of the conversation between herself and Mrs. Baty at the time of the latter's discharge is as follows : "... I says, "Mrs. Baty I hate to do this, and I handed her her check. She said, "Lila what is the meaning of this?" I said, "Mrs. Baty, it is my orders from Sanger." She said, "You haven't heard the last of me." Velma Wilson testified that as Callison was distributing the checks to the women, employees Ella Howard and Maggie Hays " who were standing an a group in which Wilson was included, remarked to Callison that they also belonged to the Union. Wilson then said, "Well, I do too Lila," and then Edith Morgan also in the group told Callison that she too belonged to the Union. Wilson testified that Callison then said to Mrs. Morgan, "You have to wait until yours is wrote out." Callison then went into the office, returning in a few minutes to give two checks to Wilson. Edith Morgan testified as follows : I just seen her hand the checks out , and then Mrs . Wilson and two more ladies were standing there. They said they belonged to the union. I spoke and said, "Well, Lila, I do too." And she said, "Huh?" and drew up her shoulders. She went back then and brought me out one of my checks. She said, "You will have to go to the office, Mrs. Morgan, and Mr. Perry will have the other check ready in a few minutes. Vera Claudine Linton testified that she heard Morgan and Wilson tell Callison they belonged to the Union, and that Callison replied, "all right, just a minute." Callison testified to a different version of the conversation among herself, Wilson and Morgan. Callison testified as follows : Well, I believe by that time the fruit had come in and they were getting ready to go to work, and I had started down the line to give my orders, but E Hayes and Howard did not belong to the Union but did belong to another labor organiza- tion They had been hired September 9, and quit September 10, stating they would not work after the discharges. 14 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Mrs. Wilson walked up to me and said, "Lila, I belong to the union too. You can get my check." I never said a word. I just turned and went to the office and when I got to the door Mr. Perry had started out. I said, "Mr. Perry I have to have one more check." He said, "Who?" I told him and he went in, sat down and wrote it out and handed it to me and I went back and gave it to her. I hadn't any more than turned around until Mrs. Morgan walked up and said "I want my check." That is all Mrs. Morgan stated. I said, "You will have to go to the office and wait for yours." Flora Shelton called by the Respondent testified that she was sitting beside Wilson at the time Callison was distributing the checks and that she heard Wilson say to Callison, "You might as well give me mine, I belong to the Union too." Shelton further testified as follows : Q. Did you hear Mrs. Callison make any answer to that? A. She turned to Mrs. Wilson and asked her, she said, "Do you want your check?" Mrs. Wilson said, "Yes." The undersigned was not favorably impressed by Callison. Although he does not deem it necessary to burden this report with a minute analysis of Callison's testimony, the following quotation in the opinion of the undersigned may well serve to evaluate her testimony and the manner in which she sought to color it. Callison having first testified that acting under orders she had filled the packing crew to a total of 31 individuals on September 9, and that all through the 1947 season more packers than necessary were employed continued as follows : Q. (By Mr. TILLMAN) Now, having observed the number of packers during several of these various weeks here, could you tell me what you would regard as the figure, an adequate figure, an adequate number of packers, to handle the Thompson pack for the 1947 season? A. I could have got by very nicely with 18 or 19. Trial Examiner PLOST. Did you ever have that few? The WITNESS. Yes. I have had as low as 12. Trial Examiner PLOST. Over how long a period did you have that number? The WITNESS. Oh, for a week or so at a time. Trial Examiner PLOST. Can you tell us from your independent recollection when that was? The WITNESS. I believe it was the first year I was on the floor, in 1942, the last year we packed Thompsons. Trial Examiner PLOST. We are talking about 1947. We are not talking about 1942. The WITNESS. I didn't have 12 through 1947 that I remember. Trial Examiner PLOST. What was the lowest number of packers you ever had in 1947? The WITNESS. 18 or 19. Trial Examiner PLOST. Over how long a period did that happen, continue? The WITNESS. Well, I definitely know that happened the last week we worked in the shed for 1947. Trial Examiner PLOST. Prior to the last week you worked, prior to that? The WITNESS. I couldn't say. BARR PACKING COMPANY 15 On the contrary Flossie Mae Baty, Velma Wilson and Edith Morgan impressed the undersigned as honest and forthright witnesses. From his observation of the witnesses and upon all the evidence in the record the undersigned credits their testimony and does not credit the testimony of Callison with respect to the conversations Callison held with them, and finds that as to the conversation Baty had with Callison on September 9, as hereinabove related Baty's account is the more accurate version thereof, and likewise finds Baty's account of her conversation with Callison on September 10, to be the more accurate version and therefore finds that on September 9, Callison told Baty, in effect, that the men were being discharged because of their union membership and that the women members of the Union would be discharged the following day. The undersigned further finds that on September 10, Callison told Baty that she was being dis- charged "over the union" and because her husband had joined it although Mrs. Baty was not a member! The undersigned finds that Wilson's account of her conversation with Callison on September 10 is the more accurate version thereof and finds that Wilson did not ask Callison for her check or voluntarily quit her employment. The undersigned is persuaded that Morgan's account of her conversation with Callison on September 10, is the accurate version thereof and finds that Morgan did not ask Callison for her check or voluntarily quit her employment. The undersigned, credits the testimony of Vera Claudine Linton and Maggie Hayes with reference to the events of September 10, relating to the distribution of the checks by Callison and the conversations and acts surrounding such dis- tribution, and does not credit the testimony of Emma Moser or Flora Shelton. Shelton's testimony is materially different from that of Callison whom she was called to corroborate. The record shows that all of the male employees of the Respondent who, on September 9, 1947, were members of the Union, or had applied for membership therein, had their employment terminated by the Respondent on September 9, 1947, and that all of the female employees who were Union members on Septem- ber 9, 1947, with one exception, were also terminated on September 10. Among those whose employment with the Respondent was terminated by the Respondent on September 10, there was one employee, Flossie May Baty, who had not joined the Union, nor applied for membership therein at that time, however, she was the wife of one of the men discharged. 4. The Respondent's contentions E. L. Barr, the Respondent's managing partner, testified that I. L. Perry was the manager of the Respondent's Exeter operation, and in full charge of it since 1940. Barr testified that he visited the Exeter plant on August 8 and noted that the plant was over-staffed, and that he then told Perry "You have too many men here," and ordered him to "cut out several of them." Perry did not reduce the force in the Exeter plant as a result of Barr's visit and alleged instructions. Barr testified that he did not visit Exeter again until approximately September 1, at which time he spent 10 or 15 minutes in the packing shed and noted that "more or less the same condition existed then that had on my previous 4 This finding is buttressed by the testimony of B. L. Barr and I. L. Perry, hereinafter set out. 16 DECISIONS OF NATIONAL LABOR RELATIONS BOARD visit. There wasn't anybody in the packing house who was really working on either one of my visits." Barr further testified on direct examination : Q. Did you give Perry any definite instruction on that occasion [tile second visit] with respect to the operation of the shed? A. No. I said, "Cut down your crew," was all ; but no specific instructions, not anything positive. Perry made no reductions in the force at Exeter because of Barr's second visit. Barr further testified that on September 9, he examined the pay rolls for the Exeter plant, the examination being made in the Sanger office where the records are kept and the pay roll is prepared and checks signed. Barr testified that "The pay rolls had just been made out, and I was signing part of the pay roll checks, as I recall. That was for both houses, Sanger and Exeter, both pay rolls." He testified that he realized that the Exeter operation was too costly and therefore at about 3 p. m. he called Perry by telephone regarding the Exeter operation. Barr testified as follows : A. We had quite a conversation about it. I started out by telling him, "Perry, you have got to cut that crew down. The costs are exorbitant. They are out of all reason. It has got to be done, and done now." He didn't want to do it. He even argued a little with me about it. Then I said, "You have got to do it." He said, "Where am I going to start?" I said, "In the first place, get rid of the old men we took on during the war mainly. The war is over. We have got to get down to earth and go to work again like we used to. This is a tough packing season, and it is a tough business we are in, and it is pretty easy to go broke. More people have gone broke in this shipping business of grapes than there are in it today. We are not going to be in that category. You have got to cut that crew down." As I said, we talked at quite some length. Q. Did you mention any specific name to Perry, so far as any of the persons to be eliminated were concerned? A. He did to me. When I said, "The old men" he said, "Flud and Grimes have worked for us a long time, either in the packing house or in the field." I said, "I don't care. I can't help that. When a man gets so slow that he can't put out," I said, "He has got to go. Give him a job in the field or something." He said, "The work is awfully short." I said, "But we have got to prune down the packing house," and I com- menced to get positive about it. He was just-well, it was like butting my head against a stone wall, he didn't want to do it. I became very insistent. Finally, I said to him, "You go out there tonight, right now, and you let pretty near half of that crew go-I don't care which ones." He mentioned another man. By the way, in this conversation I said to him, "You surely have some people there that you have had some arguments with, or a little of this or that," as it always goes in working. He said, "Yes, there has been some." Then he said, "There have been some kids throwing grapes." I said, "Get rid of them." He said, the Lidder had argued with him, or had talked with him, con- cerned about his pay several times. BARR PACKING COMPANY 17 I said, "Let him go." Then he said, "How about the women?" I said, "There's one thing for sure, you had better let the wives of the men go that you let go, because they are apt to be a little sore, get a little angry, and you can't depend on them to put out a pack of grapes. I would let them go." I didn't mention a name. I didn't even know the Lidder's name. He wAs only referred to as the Lidder. I. L. Perry, the Respondent's district manager, testified that at approximately 3:30 p. m. on September 9, Barr telephoned him from the Sanger office and testi- fied that : after a long conversation and repeating himself two or three times, he [Barr] instructed me to lay off part of the crew. He told me, he said, "Lay off half of the crew"-he used those words-"and do it now." He finally told me, "Do it now, tonight." Perry testified that he argued vigorously with Barr, because "I didn't want to do it . . . . I don't like to lay off people" but "I could almost hear Barr slapping his hands on the table and telling me what to do " Perry testified that following his conversation with Barr he called Delton Hittson, and taking Hittson's time book, selected therefrom those men who were to be terminated that night. No woman employees were selected for discharge or lay-off at this time. Perry further testified that at 10 a m. of the following morning he called Call!- son into the office and told her to "lay off the women who were the wives of the husbands we laid off the night before." Callison then made the suggestion that an additional female employee be discharged." Perry then gave Callison the regular pay checks covering the period through September 6, for each of those selected for termination, and an additional check for each covering the period through September 9. These latter checks were on Perry's personal account and were drawn for the time worked by the recipient making no allowance for legal deductions. Barr testified that during his telephone conversation with Perry on September 9, as to the employees being terminated, he told Perry : Those that are good workers, you can hire them back, but when you do, give them a good talking to, that we are going to go to work. That the war time habit that everybody seemed to have gotten into-"I think it existed in other packing houses as well as ours"-just had to stop and we are going to get into the harness again and go to work. However Perry testified : I gave Hittson instructions to tell these folks they were being laid off, and I didn't know how long, and they had better go get jobs some place else if they could.' Conclusions as to the Respondent's contentions The record is clear that the Respondent's principal bookkeeping was done at its Sanger office. Barr testified that the Exeter pay roll "right up to Saturday night" was mailed from Exeter and that: 8 Callison selected Vera Claudine Linton for discharge. Y The record is clear that Hittson did not convey Perry's instructions to those being terminated. 18 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The pay checks are generally made out on Monday, and always by Tuesday morning. The regular pay day at Exeter was on Thursday. At Sanger pay day was Wednesday. Perry testified that the pay roll was mailed from Exeter to Sanger on Monday and that the pay checks ordinarily were received from Sanger on Wednesday or Thursday. Perry further testified that the usual method of handling the pay roll was not followed the week ending September 6 because on Wednesday, of that week (September 3) the Exeter operation on Thompson grapes was finished and by Fri- day there being no work "we finished up the pay rolls and sent them to Sanger." Perry further testified that the checks for all employees, covering the period ending September 6, were in Exeter on Monday September 8, or Tuesday, September 9. Barr, however, testified that on September 9: The pay rolls had just been made out, and I was signing part of the pay roll check, as I recall. That was for both houses. Sanger and Exeter, both pay rolls. Barr's testimony was that the examination of this pay roll while signing the checks prompted his call of September 9, and his instruction to Perry to reduce the Exeter force. Barr testified that the sole reason for reducing the force at Exeter was the high labor costs due to the fact that "we didn't have enough volume of grapes to keep the crew busy, and the answer was to cut the crew down " However, in his description of the conditions as he found them on hi, visits to Exeter on August 8, and September 1, Barr stressed the fact that "there wasn't anybody in the packing house who was really working on either of my visits . . . They didn't tear into it like they really wanted to make some money for themselves." The undersigned is mindful that according to Barr's testimony, Barr instructed Perry to reduce his force on August 8, and again on September 1, without any effect and that on September 9, he won his point only after an argument and after issuing an ultimatum. There is no showing that Perry is other than an employee of the Respondent subject to orders, however, inasmuch as Perry has been in the Respondent's employ for 15 years and the manager of the Exeter operation since 1940, it is understandable that Barr should fall into inconsistencies in an attempt to justify his alleged action in ordering the discharges, by shifting the cause thereof from Perry's laxity or inefficiency to unnamed employees who "weren't even trying to work. No individuals were selected by Barr or Perry for discharge because they failed or refused to do a full share of the work. Perry testified that on September 9, there were at Exeter, in the packing shed operation 10 a total of 57 employees. Of these 16 were discharged on September 9 and 10. Perry testified also that Barr had told him to discharge one-half of his force. Perry admitted that either Thursday September 11 (the day following the dis- charges of the women), or Friday September 12, the Respondent employed 7 additional male employees. Ten had been let off on September 9, however, 2 of these had not worked that week. The record shows that the week ending September 6, the Respondent had em- ployed and working, 27 women packers. On September 8, only 14 packers re- 11 The record Is not clear if this figure Includes the supervisors. BARR PACKING COMPANY 19 ported for work, and on September 9, acting on orders from Perry, Forelady Callison increased this number to a total of 29 packers. On September 10, after the discharges and the voluntary resignations, there were only 19 packers on duty, however on Thursday September 11, a total of 22 female packers were employed, and on Friday September 12, a total of 23. Perry admitted that the packing shed was in full operation during this time and also on September 9. His testimony was that the "Thompson season" ended on September 3. Apparently the "Emperor season" began on Monday September 7, and work on Emperor grapes continued in the Exeter plant from that date on. Perry also admitted that the pay of the women packers was raised to 85 cents per hour in the week of August 30. Perry testified, and the record is clear, that the Respondent's operations for the "Thompson" grape season ended on September 3. After September 3, any profit or loss from this operation was water over the dam and if as the Respond- ent contends, Manager Perry kept too large a crew and had disobeyed instruc- tions with respect to reducing it, surely the damage would not be repaired by an indiscriminate reduction in force, after the season had closed and the "Em- peror" grape season, which is admittedly the Respondent's principal packing season, had already begun. Barr testified that he did not know that his employees had joined any union but admitted he had some slight knowledge of the Union having "read it in the press." Perry denied any knowledge of any union meetings being held in the Exeter Park. Hittson testified that he visited the Exeter Park two or three times weekly during the summer, but, that never before September 3, had he observed any of the Respondent's employees attending a meeting there and denied any knowl- edge of any union meetings being held in the park. It is incredible in the opinion of the undersigned that Hittson habitually visited the Exeter Park without obtaining knowledge of union meetings being held there, or observing who attended such meetings. Hittson admitted being in the park for an hour before he stopped to talk to Pierce and admitted talking to at least one employee, later discharged. On all the circumstances and the entire record the undersigned is persuaded that Hittson on September 3, observed which of the Respondent's employees were in attendance at the Union's meeting in the Exeter Park. The undersigned so finds and further believes it reasonable to infer that Hittson conveyed the knowledge so obtained to the Respondent. The undersigned so finds. As the Respondent's selections for discharge resulted in the removal of all but one of the union members, among its employees, the undersigned feels that to accept the Respondent's explanation regarding the selections, then the ordi- narily accepted hazards of chance must be totally disregarded. If the reason advanced by the Respondent is to be credited an explanation must be had for the fact that on the day following the discharges the Respondent rebuilt its labor force at Exeter to practically its former strength, both as to male and female employees. Such an explanation has not been made. More- over, Barr testified that more employees were required to pack "chests" than regular "lugs" and that on September 9 and 10, the Exeter shed was packing "chests." Under all the circumstances and on all the evidence in the entire record in the case, the undersigned is persuaded that House Foreman Hittson spied on the employees during the Union's meeting on September 3; the undersigned is 20 DECISIONS OF NATIONAL LABOR RELATIONS BOARD further persuaded that the Respondent had knowledge of its employees' union activities prior to September 9. The undersigned is not persuaded that the Respondent discharged certain of its employees on September 9 and 10, 1947, in order to reduce its force and that the selection of the individuals affected was in the manner and for the reasons advanced by the Respondent and as more particularly set out hereinafter, but the undersigned is convinced and finds that the Respondent did on September 9, and 10, 1947, discharge certain of its employees, more particularly hereinafter discussed, because of their mem- bership in and activities on behalf of a labor union, more particularly the Na- tional Farm Labor Union, A. F. L. The undersigned further finds that by the acts of Foreman Hittson in spying on the Union's meeting on September 3, 1947, the statements found herein to have been made by Foreman Hittson and Forelady Callison on September 9 and 10, the Respondent has interfered with, restrained, and coerced its employees in the exercise of rights guaranteed in Section 7 of the Act. 5. The individual discriminatory discharges The Respondent states in its brief: Respondent follows no rule or program of "seniority" and the evidence in this case demonstrates that it would be utterly futile and hopeless for it to attempt to do so. Of course the houseman and floorlady in making up their crews at the start of the season attempted to get in touch with people who may have worked the preceding year as a nucleus. However there is no policy of "calling back people to work." . . . They work when and where they choose and have no economic dependence on any one em- ployer and quite properly their loyalty is to the better job. This is frankly assumed by both employer and employee. The undersigned believes that the record fully supports this contention. (a) S. P. Baty Simon Peter Bate was first employed by the Respondent during the week end- ing July 26, 1947. He was employed as a "set up man." The "set up man" is stationed in front of the packing line; field boxes of grapes are brought and stacked in front of the line by the truckers and the "set up man" places the boxes in front of the packers. A field box of grapes weighs approximately 40 pounds Baty worked under Hittson's supervision. From three to five set- up men were employed who when not actually working, because of a shortage of fruit or any other cause, were not paid. Baty testified that his work in the Respondent's packing shed was never criticized. Baty further testified that at approximately 5: 30 p. in. on September 9, "Delton Hittson walked up and handed me a check and walked away right fast." As hereinbefore found Baty also testified that thereafter he asked Hittson the meaning of his action and was told by Hittson that Baty was being discharged, "over the Union" and that Hittson had "seen every one of your faces up in the park at the meeting the other night." Baty joined the Union on July 30, 1947; discussed union affairs with his fellow workers ; attended all the Union's meetings and had been present at the meeting of September 3 where he observed Hittson in the vicinity of the meeting. Hittson testified : Then Baty asked me one morning for work and about the job of setting up fruit, and I said, "That generally takes a young man for that." BARR PACKING COMPANY 21 He said, "If I can't handle it I will step down and out." I said, "On the other hand, all these older fellers that were here" ... I meant those that worked there before.... "if they come back," I said, "you have to step out and let them have their job back." Perry testified : "at the time I saw him [Baty] working I told Hittson that I didn't like to see older men working in that part of the house on that job setting up fruit." Perry also testified that Baty was selected for discharge because Perry decided to eliminate that job completely. Hittson denied having any conversation with Baty on September 9, at the time the discharges were made. Baty denied that Hittson questioned his ability to perform a set up man's work when he was employed or told him his employment was subject to the seniority rights of others. It is clear that Hittson did not tell Baty that he was being discharged because his job was being eliminated, it is likewise quite clear that Baty was not dis- charged, or transferred to lighter work at the time Perry allegedly told Hittson that Perry did not "like to see older men" setting up fruit. Moreover, Perry testified : Q. But in any event, you had no particular complaint about Baty's ability to handle the job? A. No, I wouldn't complain about that. Baty is 63 years old, and impressed the undersigned as being a vigorous and physically able man, fully capable of a full day's labor, moreover, there is no evidence in the record that Baty was unable to perform his work or failed to do 80. Baty impressed the undersigned as a wholly truthful witness worthy of cred- ence, Hittson did not. Upon his observation of the witnesses and on all evidence in the record the undersigned credits Baty's testimony relating to his conversa- tions with Hittson at the time Hittson first gave him employment with the Re- spondent and at the time Hittson discharged him on September 9, and finds that Hittson on September 9, told Baty inter alia that he was being discharged "over the union" and that Hittson "had observed the facts" of all the employees who attended the union meeting on September 3. The Respondent argues in his brief : They [Baty and his wife] were absolutely new employees. . . . Baty was too old for his job and after September 9 the job was entirely eliminated. In view of the declared absence of any seniority policy in the Respondent's plant, just what the Respondent is attempting to show by the fact that Baty was a `new" employee, as well as what was meant by Hittson's testimony (not credited by the undersigned) to the effect that Baty was being employed subject to others' seniority rights, is not clear to the undersigned. The Respondent argues that it is not bound by the statements of Hittson and Forelady Callison. The undersigned finds no merit in this contention as Hittson and Callison had full authority to hire, promote, reward, punish, and discharge employees and in so doing were required to use their independent judgment. Both these employees are clearly such supervisors whose acts bind their Em- ployer within the meaning of the Act as amended. The undersigned finds on all the evidence as disclosed by the entire record that the Respondent did not discharge Simon Peter Baty on September 9, 1947, because his job was being eliminated, or because be was unable to perform his duties, 838914-50-vol 82-3 22 DECISIONS OF NATIONAL LABOR RELATIONS BOARD but that the reasons so advanced by the Respondent are a mere pretext and that the Respondent did discharge Baty because of his membership in and activities on behalf of the Union , thereby discriminating in regard to his hire and tenure of employment and thereby discouraging membership in a labor organization ; and thereby the Respondent has interferred with, restrained , and coerced its em- ployees in rights guaranteed in Section 7 of the Act , more particularly the Re- spondent has violated Section 8 (a) (1) and (3) thereof. (b) William Flud (20-CA-24) and Joe Grimes (20-CA-7) William Flud and Joe Grimes worked together as a team. Their work con- sisted of preparing the empty boxes or "lugs" for the packers . They lined these boxes with paper, trucked them to a conveyor chute, and placed them in the chute. Neither man had ever been criticized for the character of his work and according to Find's testimony, he had been told by Hittson that his work was satisfactory. Flud testified that on September 9, at the close of the day, he and Grimes were standing together when Hittson came up to them and handed each of them two checks. Upon receiving the checks , according to Flud's testimony, he then asked Hittson , if his discharge was occasioned by his union membership where- upon Hittson replied , "Yes." Grimes corroborated Flud. Hittson testified that when he handed Flud his checks, the latter asked if it was "on account of the union" and that he replied , "As far as I know, I don't know a thing in the world about it. The boss give me these checks and said `Tell the boys I am going to lay a bunch off.' " From his observation of the witnesses and on all the evidence in the record the undersigned credits the testimony of Flud and Grimes , and does not credit Hitt- son's testimony as to the remarks made by Hittson to Flud at the time of the latter's discharge. Flud testified that he joined the Union in August 1947 and attended all its subsequent meetings. Grimes testified that he joined the Union some time before his discharge but never attended any union meetings with the exception of a few "open house" in the Exeter Park. The Respondent contends in its brief : Flud and Grimes are elderly men and were taken into the packing shed for the first time during the war years only because of the shortage of younger men. They are physically unable to work at anything other than the empty lug chute which is the lightest work in the packing house and they couldn't be used at all for any heavier work to fill out their time. Therefore they were both laid off at the end of the Thompson season when the packing crew at Exeter was revamped for Emperor.... " The record is clear that when employees were not working they were not paid. The contention that the plant was being "revamped for Emperors" on September 9, is in no way supported by the evidence. Hittson admitted that Flud and Grimes were replaced by two men who did exactly the same work as they did, and nothing more. Flud testified that on or about October 20, the Respondent's field foreman offered him employment picking grapes for the Respondent which work he ac- cepted and performed until the end of the season. Upon all the evidence in the record, the undersigned finds that William Flud and Joe Grimes were not discharged by the Respondent because they were physically unable to perform their work but because of their membership in BARR PACKING COMPANY 23 and activities on behalf of the Union, and that the Respondent has thereby dis- criminated in regard to their hire and tenure of employment and thereby discouraged membership in a labor organization, and that the Respondent thereby has interfered with, restrained, and coerced its employees in rights guaranteed in Section 7 of the Act, more particularly the Respondent has violated Section 8 (a) (1) and (3) thereof. The Respondent further contends that Flud's reemployment as a field worker relieves the Respondent of any further responsibility for reinstatement of Flud to his former position. The undersigned finds no merit in this contention. The Respondent's packing operations and its farming (and Flud's employment to work as a grape picker) are entirely separate and different operations. The Respondent's employment of Flud as a field hand did not constitute a return to. substantially equivalent employment." (c) John. Maple (20-CA-25) John H. Maple worked for the Respondent during the seasons of 1945, 1946, and 1947. At the beginning of the 1947 season, he was given the job of "udder," meaning that he operated the machine which fastened the lids to the boxes which had been packed with grapes. Maple testified that on September 9, while Maple was already near his car preparatory to leaving for the day, Hittson handed him two checks payable to Maple and one check payable to employee Shelby Caddell. Upon receiving the checks Maple asked why lie was given two checks and "Is the packing house closing down," Hittson replied, "No" and Maple pressed for a more comprehensive answer upon which Hittson told Maple, "It is on account of you boys having joined the Union." Myrtle Maple, wife of John Maple, testified that she was sitting in the automobile when Hittson gave the checks to her husband and she heard her husband ask, "Well what's all this about?" and Hittson replied, "It's over the Union." The under- signed credits Maple whom he found to be an honest and forthright witness and does not credit Hittson's testimony regarding the conversation between Hittson and Maple at the time of the latter's discharge, and therefore, finds that on Septeniper 9, 1947, Hittson told Maple, in effect, that Maple's discharge was because of his union membership. Maple joined the Union on August 22. He testified that he attended all of the Union's meetings and that he saw Hittson in the Exeter Park during the Union's meeting the evening of September 3. Maple further testified that on several different occasions Hittson had told him that he "was doing a good job." Perry testified that during his conversation with Barr on September 10, Perry told Barr that the lidder, (meaning Maple), had complained over his pay and that Barr then ordered Maple discharged. Perry further testified that Maple continually complained of the fact that he was not being paid on a piece-work basis. Maple testified that when he was given the job on the lidding machine he was told he would be paid on a piece-work basis but that this was not done and that "every week" he "spoke to Mr. Hittson alone on it." Apparently only during the week ending August 30, Maple was either paid on a piece-work basis, or his previously figured hourly rate was adjusted to a piece-work total. The Respondent contends that Maple was discharged for the sole reason that he continually complained of his pay basis. 11 See Matter of Chase National Bank, 65 N. L R. B. 827. 24 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The record is clear that on September 27, 1947, the Respondent offered Maple his former job of lidder, and that Maple refused reemployment. The undersigned is not persuaded that the Respondent discharged Maple be- cause he continually complained regarding his rate of pay, but is convinced on all the evidence that this contention is a mere pretext and that the Respondent discharged John Maple because of his membership in and activities on behalf of the Union thereby discriminating in regard to, his hire and tenure of em-' ployment, thereby discouraging membership in a labor organization and that the Respondent has thereby interfered with, restrained, and coerced its em- ployees in the rights guaranteed in Section 7 of the Act, more particularly the Respondent has violated Section 8 (a) (1) and (3) thereof. (d) L. D. Beene (20-CA-11) L. D. Beene was employed by the Respondent as a trucker. His work was trucking fruit from the receivers to the set-up men. Beene testified that until "a few weeks before September 9" he was the only trucker. Beene testified : I couldn't keep up by myself, and the receivers, there were two re- ceivers, and when a truck came in they would both be tied up there, and I would have to handle it by myself and I generally got behind. As quick as the truck left one of those truckers would come over and give me a hand until the next truck came in. Beene testified that before September 9, another trucker, identified only as "Blackie," was employed to help him. Beene joined the Union on July 22. He testified that he attended all the Union's meetings in the park and that on September 3, during the progress of the Union's meeting in the Exeter Park he saw and spoke to Hittson. Hittson admitted speaking to Beene as the latter had testified. Benne further testified that as he was getting into his car to leave after the close of the working day on September 9, he was discharged by Hittson. Beene testified : A. Delton Hittson, the foreman, he came out on the ramp where they unload the receiving trucks loaded with fruit, and he just jumped 2ff and hollered, "Wait a minute, boys. I have some checks for you." I more or less hollered and said, "I didn't think that pay day was up until Thursday." He said, "Well, I would rather give my right arm as to do this." I realized then it was a can, or lay-off, or whatever you want to call it. I asked him what it was for. He just shook his head and said, "Your guess is as good as mine." I asked him this twice, and he would always give me that. I asked him was it because of we wasn't doing our work, and he said we was doing our work as good, if not better, than any one in the house and he liked to work with us. I asked him then if it was over the union, and he never would say. He just nodded his head as if to say "yes", but he never said a word. Hittson did not deny the incident. The undersigned credits Beene. Beene further testified that on October 1, 1947, Hittson came to his home and offered him employment at the Respondent's plant. Beene accepted and after working 1 week as a trucker was then given the job operating the lidding machine. Beene operated this machine until the end of the season. BARR PACKING COMPANY 25 Perry testified that after his conversation with Barr on September 9, he decided to discharge Beene. Perry testified : Q. How about Beene? A. L. D. Beene, I couldn't see why we couldn't get the receivers that were unloading fruit and receiving fruit to handle the trucking job that Beene handled and I told Hittson we would lay him off and eliminate his job entirely. Under all the circumstances in the case and considering all the evidence the undersigned is not convinced that the reason assigned by the Respondent for Beene's discharge is the real reason therefor but is convinced and finds that the Respondent discharged L. D. Beene, on September 9, 1947, because of his membership in and activities on behalf of the Union, thereby discriminating in regard to his hire and tenure of employment and thereby discouraging member- ship in a labor organization and has interfered with, restrained, and coerced its employees in rights guaranteed in Section 7 of the Act and more particularly the Respondent has violated Section 8 (a) (1) and (3) thereof. (e) Earl Rutledge (2O-CA-19) William Earl Rutledge was employed by the Respondent at "setting off fruit for the packers," except when "chests" were packed at which time he operated a "strapping machine," meaning a machine which binds wire about the box packed with grapes. Rutledge joined the Union on June 25, 1946, and was present at the Union's meeting in the Exeter Park on September 3, where he saw Hittson in the vicinity of the meeting. Rutledge was discharged with the others on September 9. At the time of his discharge he was not given any reason therefor. On or about October 7, 1947, Rutledge was offered reemployment by Hittson, acting for the Respondent, and in effect refused such reemployment. The above recited facts are not denied and are credited by the undersigned. Manager Perry testified that in the packing industry in California, Federal- State inspectors are assigned to each packing shed to inspect all fruit packed, for quality and also to "watch the handling of the fruit" by the packers and others. These inspectors certify to the quality of every car shipped and also report mishandling of fruit by employees to the management. These inspectors have no control over the labor. Perry testified that inspectors assigned to the Respondent's plant had reported that Rutledge (and Shelby Caddell) handled fruit boxes so roughly that the fruit was injured. However, they did not reject any shipments for this reason. Perry testified that he did not speak to Rut- ledge regarding the alleged report of his rough handling boxes of grapes. Perry further testified that he selected Rutledge for discharge because of the inspector's report regarding the rough handling of grapes, although Perry himself had not observed Rutledge mishandling any fruit or boxes of fruit, and further that he decided to abolish the "setting off" department, which consisted of Rutledge and Shelby Caddell and therefore told Hittson during their discussion on September 9, to discharge Rutledge. Perry testified that when he told Hittson to discharge Rutledge that Hittson objected. Perry testified as follows: A. He [Hittson] said "Earl Rutledge is a good man. Why lay him off?" Q. What did you say in response to that? A. I told him we had complaints from that department and I was going to clean the whole thing up. 26 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Q. By "that department" you meant what? A. The boys setting up fruit. Perry also testified that Hittson had "mentioned to me that he [the Federal-State Inspector] had complained" that Rutledge was handling filled fruit boxes roughly. The undersigned is not persuaded by Perry's testimony, (a) that Perry re- ceived complaints that Rutledge had mishandled boxes of fruit, or (b) that Rutledge's job was abolished. The fact that Hittson, who according to Perry had informed him of complaints regarding Rutledge's work, objected to the selection of Rutledge for discharge because Rutledge was a "good man" and moreover, did not testify that Rutledge mishandled fruit or that there was complaint made that he did so, together with the fact that Perry at no time warned Rutledge regarding his alleged rough handling of fruit, and the fact that grapes could not be taken from the female packers without a "setting off" crew, 12 would tend to discredit Perry's testimony. In its brief, as to Rutledge, the Respondent argues only that Rutledge's refusal to accept reemployment by the Respondent precludes an order for reinstatement. With this the undersigned agrees. The undersigned is per- suaded and finds on all the evidence that the Respondent obtained knowledge of Rutledge's interest in the Union from Hittson's visit to the Exeter Park on September 3, during the course of a union meeting and that the reason assigned for Rutledge's discharge on September 9, is not the real reason therefor but that William Earl Rutledge was discharged because of his membership in and activities on behalf of the Union and that by such discharge the Respondent has discriminated in regard to his hire and tenure of employment and has discouraged and is discouraging membership in a labor organization and has interfered with, restrained, and coerced its employees in the rights guaranteed in Section 7 of the Act and more particularly the Respondent has violated Section 8 ( a) (1) and (3) thereof. (f) Shelby Caddell (20-CA-16) Shelby Caddell joined the Union on August 22, 1947. He was active in its behalf among his fellow employees and attended its meetings. Caddell was at the meeting held by the Union on September 3, in the Exeter Park and saw Hittson there. On September 9, 1947, Caddell was not at work having last worked September 6, the preceding Saturday. As has been found herein, at the time of the discharges September 9, Hittson handed Caddell's check to John Maple, without any statement regarding the reason therefor. Maple is Caddell's stepfather and Caddell lives at Maple's home. Caddell returned to the Respondent's plant "about 2 weeks" after September 9 accompanied by John Maple. At this time he was refused reemployment. Perry testified that he selected Caddell for discharge on September 9, because he had complaints from the Government inspectors that Caddell mishandled boxes of fruit and he had decided to abolish "the department" which consisted of Caddell and John Rutledge herein found to have been discriminatorily dis- charged. Perry also testified that "about 2 weeks" prior to September 9, he observed Caddell mishandling fruit and that he then reprimanded him. The undersigned relies on evidence in the record that California laws do not permit filled boxes to be lifted by female employees. BARR PACKING COMPANY 27 Caddell testified that he had been criticized for rough handling of boxes of fruit but fixed the time "somewhere around the second week I worked, "3 and testified that the criticism was by Hittson but that a week later Hittson told him that "I was doing all right." On all the evidence in the record the undersigned is convinced that the Re- spondent had knowledge of Caddell's union affiliation through Hittson's espion- age of the Union's meeting of September 3; that Caddell was selected for dis- charge because of his union membership and that the delivery of Caddell's pay check to John Maple under the circumstances herein discussed was intended to constitute and did constitute Caddell's discharge. The undersigned so finds. The undersigned finds that the Respondent discharged Shelby Caddell on September 9, 1947, because of his membership in and activities on behalf of the Union thereby discriminating in regard to his hire and tenure of employ- ment and thereby discouraging membership in a labor organization and thereby the Respondent has interfered with, restrained, and coerced its employees in the rights guaranteed in Section 7 of the Act, and more particularly the Re- spondent has violated Section 8 (a) (1) and (3) thereof. (g) B. G. Grissom (20-CA-9) Billie Gene Grissom testified credibly that he joined the Union on July 14, 1947; that he attended the union meetings ; that his work was not criticized ; and that on September 9, he was discharged by Hittson who gave him his checks at the same time he handed checks to L. D. Beene, near whose car Grissom was at the time. Perry testified that Grissom threw grapes at various employees during work- ing hours. Perry had never seen Grissom throw grapes but testified that he had been told of grape throwing incidents prior to his conversation with Hittson on September 9, when the employees to be discharged were selected. Perry testified as follows : Then I asked him [Hittson] about the boys that was causing horseplay and throwing grapes. Q. What did you say to him about that? A. I wasn't sure who they were for sure. There were some other people on the pay roll by the name of Brinson-and he had been telling me their names-and I wasn't sure who it was. He said, "No, it is not Brinson. It is the Grissom boys." So I said, "Those are the boys we are going to lay off, those boys." Hittson testified that he had been told that certain employees were throwing grapes, and that he watched from "first one place then another in the shed" in an effort to catch the grape throwers but never "got on them about it." Hittson testified that he never saw anyone throwing grapes but did see employees "thump" grapes, meaning to "shoot" them as a boy does a marble. He did not reprimand or caution any employee for "thumping" grapes. Hittson named those whom he saw "thumping" grapes as being "the Grissom boys" and "Earl Rutledge, Shelby Caddell, and Johnnie Maple." The undersigned is mindful that Hittson objected to Rutledge's discharge because Rutledge was "a good man," and also that the throwing of grapes was not advanced by the Respondent as a reason for the discharge of either Caddell or Maple. 'a Caddell began the 1947 season on July 224 He had worked for the Respondent since the 1945 season. 28 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Grissom freely admitted that he threw grapes at employees while at work. He testified that "about any time of day somebody might throw a grape" and further "about all I ever throwed it seems that they would throw back ." Gris- som further testified that he threw grapes at Hittson and that Hittson "would return one back to me sometimes." Hittson denied throwing grapes at Grissom , and denied throwing any grapes since he became foreman but admitted doing so before he was made foreman. There is of course no doubt that Grissom threw grapes at various employees during working hours, however, it is clear in the record that throwing grapes was not an uncommon practice on the part of the Respondent 's employees and apparently was not considered a serious offense prior to September 9, 1947. The undersigned is not persuaded that Billie Gene Grissom was selected for discharge on September 9, because he threw grapes at fellow employees. The undersigned is convinced from all the circumstances and on all the evidence in the case that Grissom was discharged because of his union membership. The undersigned therefore finds that the Respondent on September 9, 1947, discharged Billie Gene Grissom because of his membership in and activities on behalf of the Union thereby discriminating in regard to his hire and tenure of employment ; discouraging membership in a labor organization and interfering , restraining and coercing its employees in rights guaranteed in Section 7 of the Act, and more particularly Section 8 (a) (1) and (3) thereof. (h) Nadine Rutledge (20-CA-12), Myrtle Maple (20-CA-15) and Bernice Beene (20-CA-10) Nadine Rutledge It has been found herein that on September 10, 1947, the Respondent discharged certain of its female employees and the circumstances surrounding these dis- charges have been discussed. Among those discharged on September 10 was employee Lillian Nadine Rutledge, employed by the Respondent as a packer. Lillian Nadine Rutledge is the wife of Earl Rutledge, found herein to have been discriminatorily discharged. Mrs. Rutledge joined the Union on July 25, 1947. Mrs. Rutledge testified credibly that some 3 or 4 days before her discharge she was asked by Forelady Callison whether or not she "believed" in the Union and upon giving an affirmative reply coupled with a question as to whether or not Callison also "believed" in the Union, Callison replied that she did not and remarked "there would be some changes made." Mrs. Rutledge was present at the September 3, union meeting, held in the Exeter Park and saw Hittson there. Mrs. Rutledge testified without contradiction that her work was never criticized and that sometime in August of 1947, Callison asked her if she would "like to be" assistant forelady and that Rutledge replied that the position carried too much responsbility and that she did not want it. On September 10, Mrs. Rutledge was discharged together with a group of employees as hereinbefore set out. Myrtle Maple Myrtle Maple is the wife of John Maple, found herein to have been discrimina- torily discharged. She joined the Union on August 22, 1947, and was present at the union meeting on September 3. Foreman Hittson admitted seeing Mrs. Maple at this meeting. Mrs. Maple testified that her work was not criticized but that on the contrary, Forelady Callison "always bragged on my work, every year I worked there." Mrs. Maple had worked at the Respondent's plant for BARR PACKING COMPANY 29 five successive packing seasons." Mrs. Maple was discharged on September 10, under the circumstances hereinbefore described. Bp-,nice Beene Bernice L. Beene is the wife of L. D. Beene, who has been found to have been discriminatorily discharged by the Respondent on September 9, 1947. Mrs. Beene joined the Union on July 22, and was at the September 3 meeting where she observed Foreman Hittson ; she testified that Hittson was in the vicinity of the meeting when she arrived and was there when she left, and that this covered a period of "about 2 hours." Mrs. Beene testified that her work at the Respond- ent's plant was not criticized. She was discharged on September 10. On Octo- ber 1, 1947, she was reemployed by the Respondent and remained at work until the end of the season. Beene's above related testimony was not contradicted and is credited by the undersigned. Concluding findings on the discriminatory discharges of Lillian Nadine Rutledge, Myrtle Maple and Bernice L. Beene As has been found herein, Barr testified that he instructed Perry to dis- charge the wives of the men being discharged "because they are apt to be a little sore, get a little angry, and you can't depend on them to put out a pack of grapes." Perry testified that he passed on Barr's order to Callison on the morning of September 10. Mesdames Rutledge, Maple and Beene are the wives of Earl Rutledge, John Maple and L. D. Beene, respectively, whom the undersigned has found to have been discriminatorily discharged on September 9. The undersigned believes it reasonable to infer that the selection of these women for discharge by the Re- spondent was also discriminatorily made because it would reasonably follow that if a husband were an adherent of the Union, his wife who worked with him in the same plant, would also belong. The fact that the three women were all at the September 3 meeting, where they could have' been seen by Foreman Hittson, coupled with the statement of Forelady Callison to Mrs. Rutledge that "there would be some changes made" and Callison's other remarks and conduct as herein found, in the opinion of the undersigned, strongly supports the above findings of discrimination. The undersigned therefore finds on the entire record that the Respondent did not discharge Lillian Nadine Rutledge, Mrytle Maple, and Bernice Beene, in order to reduce its force for legitimate business reasons, but finds on all the circum- stances in this case, and on the entire record, that the Respondent on September 10, 1947, did discharge them because of their membership in and activities on behalf of the Union, thereby discriminating in regard to their hire and tenure of employment and thereby discouraging membership in a labor organization, and the Respondent has in each and all instances interfered with, restrained, and coerced its employees in the rights guaranteed in Section 7 of the Act, and more particularly the Respondent has violated Section 8 (a) (1) and (3) thereof. (i) Flossie Mae Baty (20-CA-8) Flossie Mae Baty is the wife of Simon Peter Baty, who has been found herein to have been discriminatorily discharged on September 9. Mrs. Baty was em- ployed as "stamp girl." Her work consisted of stamping certain information on 1* The above findings are made on undented testimony which the undersigned credits. 30 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the packed boxes with a rubber stamp, just before the boxes left the conveyor belt and moved into the railroad car. It has been found that in a conversation with Forelady Callison on the evening of September 9, Callison told Mrs. Baty that the men who had just been discharged "were fired" because of "the Union." The undersigned has also found that on September 10, Callison told Mrs Baty that she was being discharged "over the Union," and that when Baty then stated that she was not a member of the Union , Callison replied, "It's on account of Mr. Baty joining it." Mrs. Baty was discharged as herein found, on September 10, 1947 . She joined the Union that night, after her discharge. Mrs. Baty testified that her work at the Respondent's plant was not criticized by any supervisory official. Perry testified that he selected Mrs. Baty for discharge not only because her husband had been discharged , but for the additional reason that she sat while at work, and told Callison to discharge her because "she cannot do it later on, ;hat is a cinch, when we get into faster production." Forelady Callison testified that it was the lidder 's habit to let the conveyor belt fill up with boxes before he started the lidding machine. The operation of the lidding machine controlled the stamp girl's work . Callison testified as follows: Well, in doing that, [stopping the belt] why that would make it 10, 15, or maybe 20 minutes, in between lidding. Well, he let the belt fill up and then he would lid fast and catch up. Then he would quit lidding for another 15 or 20 minutes. Well, at that time I didn 't see any reason for Mrs. Baty standing on her feet , when she could be sitting down, as there was nothing for her to do when she stood . She asked me if she could sit down. I gave her my permission. Perry also testified on cross-examination that Forelady Callison had never complained of Mrs. Baty's work and that he had no knowledge that Baty's work was not satisfactory. The undersigned is not convinced that the fact that Mrs. Baty sat down while on duty was a factor in her discharge , but is convinced that the sole reason for her discharge by the Respondent was the fact that her husband was discrimina- torily discharged and the undersigned further infers that the Respondent be- lieved that Mrs. Baty, as well as her husband, was a member of the Union. The undersigned therefore finds, on consideration of all the evidence in the case, that the Respondent, on September 10, 1947, discharged Flossie Mae Baty because of her supposed membership in the Union thereby discriminating in regard to her hire and tenure of employment , discouraging membership in a labor organization , and interfering, restraining, and coercing its employees in the rights guaranteed in Section 7 of the Act, and more particularly Sec- tion 8 (a) (1) and (3) thereof. (j) Vera Claudine Linton (20-CA-14) Vera Claudine Linton was employed as a packer ; she joined the Union Septem- ber 3, 1947; was present at the Union's meeting in the Exeter Park on Septem- ber 3 ; and observed Foreman Hittson in the vicinity of-the meeting. Linton testified that she sat with Mrs. Maple and Velma Wilson during the meeting. Foreman Hittson testified that on September 3, in the Exeter Park he observed Mrs. Maple and Velma Wilson "walking up to the benches that was out in front of the bandstand ." Linton further testified that she was discharged with the BARR PACKING COMPANY 31 group on September 10 and that as Callison handed her the checks Callison remarked "I am sorry, but this is the way it has to be." 15 Perry testified that on September 10, after he instructed Callison to terminate the wives of the men discharged the preceding day and gave her their names, be suggested that "she name a person, somebody that she could dispense with her services." Callison named, "Vera Claudine Linton." Perry then added her name to those he had selected for discharge. Forelady Callison testified that she selected Linton for discharge : For the simple reason that every time I passed her she had some complaint about the grapes. She was always quarreling, complaining that she was the only one in the shed that was being sent bad fruit. Day after day that gets tiresome. On cross-examination Forelady Callison testified as follows : Q. Do you remember for how long she (Linton) had been making such complaints to you? A. Oh, off and on all the time she worked that season. Q. Would you say it was a daily affair, that you had such complaints? A. Yes, I would, Q. Did you have any discussion with her in an attempt to cause her to quit making such complaints? A. No, I didn't. Q. Did you ever tell her you didn't like her making complaints? A. No. Linton had been employed by the Respondent during the 1946 season and began the 1947 season on July 22, during the first week the Respondent's shed operated in 1947. She denied that she ever complained to Callison regarding the quality of the fruit she packed. Linton impressed the undersigned as an honest, and truthful witness. Callison did not. From his observation of the witnesses and upon all the evidence in the case, the undersigned does not believe that the Respondent discharged Vera Claudine Linton because she complained to her supervisor about the quality of the grapes she was packing, but is convinced and finds that this excuse for Linton's discharge is a mere pretext, concocted after the event. The undersigned therefore finds that the Respondent had knowledge of Linton's union membership from Foreman Hittson and Assistant Forelady Moser and further finds that the Respondent discharged Vera Claudine Linton on September 10, 1947, because of her membership in and activities on behalf of the Union, thereby discriminating in regard to her hire and tenure of employment, and discouraging membership in a labor organization and has thereby interfered with, restrained, and coerced its employees in rights guaranteed in Section 7 of the Act, and more particularly has violated Section 8 (a) (1) and (3) thereof. (k) Velma Wilson (20-CA-17) and Edith Morgan (20-CA-6) Velma Wilson Velma Wilson began the 1947 season in the Respondent's plant on July 22, when the operations first began. She had been employed by the Respondent during I6 Linton testified that some time during the working day of September 9, Emma Moser, who was an assistant foielady, asked her if she belonged to the Union. Linton replied, "yes" and asked Moser "why," to which Moser merely replied, "I just wondered." The undersigned makes no finding of 8 (a ) (1) on the above but does infer therefrom that the Respondent obtained knowledge of Linton' s union membership from Moser. 32 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the previous season. Wilson joined the Union August 22 and saw Hittson at the September 3 union meeting . Wilson testified without contradiction that her work at the Respondent's plant had never been criticized by her supervisors. On September 8, all the packers were given a raise in pay bringing their rate up to 85 cents per hour . Wilson was among those whose pay was raised. Wilson testified that at the time Callison was distributing the checks to the packers being discharged on September 10, Callison did not give her a check and that Wilson then told Callison that she too belonged to the Union whereupon Callison then went to the office and returned with her checks. Callison testified that Wilson said to her, "I belong to the Union too. You can get my check" and that making no reply she went to the office and asked Perry for Wilson's check. The undersigned has found herein that Wilson's account of the conversa- tion and the acts surrounding her discharge are correct. The Respondent contends in its brief that Wilson voluntarily quit because she depended on two other employees who were discharged the previous day for her transportation to and from work. The undersigned finds no merit in this contention. Upon the entire record the undersigned finds that Velma Wilson did not voluntarily quit her employment with the Respondent and finds that the Respond- ent discharged Velma Wilson on September 10, 1947 , because of her membership in and activities on behalf of the Union , the Respondent having obtained knowl- edge of such affiliation through Wilson 's statement to Callison. Edith Morgan Edith Pearl Morgan testified that she joined the Union on September 3, and that she saw Hittson at the September 3, meeting . It has been found herein that Morgan informed Callison on September 10, that she was a member of the Union and that Callison thereupon discharged her. The Respondent contends that Mrs. Morgan voluntarily quit her employment with the Respondent to follow her means of transportation and family, she being the mother of Nadine Rutledge. The undersigned was favorably impressed by Morgan on the witness stand 1nd credits her following quoted testimony : Q. How. did you get to the plant? A. Well, I had two sons out there, and two daughter -in-laws. One would bring me one time, one would bring me another time. Sometimes I'd just ride with the people out there. Mostly I walked. The undersigned finds no merit in the Respondent 's contention that Morgan quit her employment voluntarily in order to follow her family and/or her trans- portation. The undersigned finds on all the evidence in the record that the Respondent on September 10, 1947, discharged Edith Pearl Morgan because of her member- ship in and activities on behalf of the Union. The undersigned further finds that by discharging Velma Wilson and Edith Pearl Morgan the Respondent has discriminated with respect to their hire and tenure of employment , discouraged membership in a labor organization and has in both instances interfered with, restrained , and coerced its employees in the rights guaranteed in Section 7 of the Act, and more particularly the Respondent has violated Section 8 (a) (1) and (3) thereof. BARR PACKING COMPANY 33 (1) A. C. Hackney (20-CA-18), Bobby Grissom (20-CA-28) and Velma Hackney (20-CA1 ° ) Neither A. C. Hackney, his wife Velma Hackney, nor Bobby Grissom testified. There is evidence in the record that Grissom is now in the U. S. Navy and the Hackneys are employed away from Exeter. There is evidence in the record that all three of the above-named individuals were present at the Union's meeting in the Exeter Park on September 3. A. C. Hackney and Bobby Grissom were given their checks, by Hittson on September 9, at the same time as the other employees found to have been dis- charged by the Respondent on that date. Mrs. Hackney was given her check by Forelady Callison on September 10, at the time Callison discharged the other employees as herein found. Regarding the discharge of A. C. Hackney, Manager Perry testified as follows Because as far as Hackney was concerned, he was a fairly new man in the shed, and we eliminated the job he was on. He was setting up fruit. The Respondent contends that Bobby Grissom was discharged because he engaged in "throwing grapes and general horse play." Mrs. Hackney admittedly was selected for discharge because she was the wife of A. C. Hackney. A. C. Hackney was reemployed by the Respondent on October 16, 1947. Bobby Grissom was reemployed during the last week of the 1947 season. Mrs. Hackney had not been reemployed by the Respondent at the time of the hearing. The undersigned has found that Foreman Hittson engaged in espionage of a union meeting on September 3. On September 9, the Respondent selected certain employees for discharge. The undersigned has found that the reasons advanced by the Respondent for the discharge of the employees selected were not the real reasons but that the discharges were discriminatory. They were in fact a "package" discharge. Ad- mittedly the Hackneys and Bobby Grissom were included in the same category as the employees found to have been discriminatorily discharged. There is nothing in the record which persuades the undersigned that the reasons advanced by the Respondent for their discharge are any different or more valid than those advanced for the discharge of those employees found herein to have been dis- criminatorily discharged 1° The undersigned is convinced from all the evidence that the Respondent be- lieved the Hackneys and Bobby Grissom to be adherents of the Union, and that A. C. Hackney was not discharged, because his job was abolished ; that Bobby Grissom was not discharged because he engaged in horse play and threw grapes at employees during working hours ; neither was given these reasons at the time of his discharge and the undersigned believes them to be a mere pretext and not the real reason for their discharge. The record is clear that Mrs. Hackney was discharged for the same reason as her husband which was discriminatory. The undersigned finds on all the evidence that on September 9, the Respondent discharged A. C. Hackney and Bobby Grissom and on September 10, 1917, the Respondent discharged Velma Hackney because of their supposed membership in the Union and the Respondent has thereby discriminated in regard to their hire and tenure of employment and discouraged membership in a labor organization "For a similar situation see Matter of Morrison Turning Co . Inc. (10-C-2125 ), 77 N L. R. B. 670. 34 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and has thereby interfered with, restrained, and coerced its employees in the exercise of rights guaranteed in Section 7 of the Act, and more particularly the Respondent has violated Section 8 (a) (1) and (3) thereof. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in Section III above, occurring in connection with the operation of the Respondent described in Section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes, burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that the Respondent has engaged in certain unfair labor prac- tices, the undersigned will therefore recommend that it cease and desist there- from and take certain affirmative action designed to effectuate the policies of the Act. Having found that the Respondent discriminated in regard to the hire and tenure of employment of Simon Peter Baty, William Flud, Joe Grimes, John Maple, L. D. Beene, Earl Rutledge, Shelby Caddell, Billie Gene Grissom, Nadine Rutledge, Myrtle Maple, Bernice Beene, Flossie Mae Baty, Vera Claudine Linton, Velma Wilson, Edith 'Morgan, A. C. Hackney, Bobby Grissom and Velma Hack- ney, the undersigned will recommend that the Respondent offer to each immediate and full reinstatement to his or her former or substantially equivalent position " without prejudice to his or her seniority or other rights and privileges and make each whole for any loss of pay he or she may have suffered by reason of such discrimination by payment to each of a sum of money equal to that which each would have earned as wages from the date of the discriminatory discharge to the date of the offer of reinstatement, less his or her net earnings " during such period.18 The violations herein found clearly indicate that the Respondent's purpose was to defeat the exercise by its employees of their right to self-organization Be- cause of the Respondent's unlawful conduct and its underlying purpose, the undersigned is convinced that the unfair labor practices found are persuasively related to the other unfair labor practices proselibed in the Act, and danger of their commission in the future is to be anticipated from the Respondent's con- duct in the past.R° The preventive purposes of the Act will be thwarted unless the recommendations are coextensive with the threat. In order, therefore, to make effective the interdependent guarantees of Section 7, to prevent a recur- rence of unfair labor practices and thereby minimize industrial strife which burdens and obstructs commerce and thus effectuates the policies of the Act, 17 In accordance with the Board's consistent interpretation of the term, the expression "former or substantially equivalent position" is intended to mean "former position wherever possible, but if such position is no longer in existence than to a substantially equivalent position " See Matter of The Chase National Bank of the City of New York, San Juan, Puerto Rico, Branch, 65 N. L. R. B. 827. 18 See Matter of Crossett Lumber Company, 8 N. L. R. B. 440, 492-498. 1B Since certain of the above-named employees have been found herein to have been reinstated or have been offered reinstatement by the Respondent it is recommended that no further offer of reinstatement need be made, nor shall back pay run beyond such reinstatement or offer, in any such case. 201See N. L. R. B. v. Express Publishing Company, 312 U. S. 426 and May Department ,Stores Company v. N. L. R. B., 326 U. S. 376. BARR PACKING COMPANY 35 the undersigned will recommend that the Respondent cease and desist from in any manner infringing on the rights guaranteed in Section 7 of the Act. Upon the basis of the foregoing findings of fact and upon the entire record in the case, the undersigned makes the following : CONCLUSIONS OF LAW 1. The operations of E. L. Barr and Merle Barr, a co-partnership d/b/a Barr Packing Company (Exeter, California), constitute trade, traffic, and commerce among the several States, within the meaning of Section 2 (6) and (7) of the Act. 2. National Farm Labor Union, A. F. L., is a labor organization within the meaning of Section 2 (5) of the Act. 3. By discriminating in regard to the hire and tenure of employment of those individuals named above, thereby discouraging membership in a labor organiza- tion, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (3) of the Act. 4. By interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act and amended Act, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2 (6) and (7) of the Act. RECOMMENDATIONS Upon the basis of the above findings of fact and conclusions of law, the under- signed recommends that the Respondent, E L. Barr and Merle Barr, a co-partner- ship, d/b/a Barr Packing Company (Exeter, California), its officers, agents, successors, and assigns, shall : 1. Cease and desist from : (a) Discouraging membership in National Farm Labor Union, affiliated with the American Federation of Labor, or any other labor organization of its em- ployees by in any mannerd iscriminating in regard to their hire and tenure of employment or any term or condition of employment ; (b) In any other manner interfering with, restraining, or coercing its em- ployees in the exercise of the right to self-organization, to join or form labor organizations, to - bargain collectively through representatives of their own choosing and to engage in concerted activities for the purposes of collective bargaining or other mutual aid or protection as guaranteed in Section 7 of the Act. 2 Take the following affirmative action which the undersigned finds will effectuate the policies of the Act: (a) Offer to Simon Peter Baty, William Flud, Joe Grimes, John Maple, L. D. Beene, Earl Rutledge, Shelby Caddell, Billie Gene Grissom, Nadine Rutledge, Myrtle Maple, Bernice Beene, Flossie Mae Baty, Vera Claudine Linton, Velma Wilson, Edith Morgan, A. C. Hackney, Bobby Grissom and Velma Hackney im- mediate and full reinstatement each to his or her former or substantially equiva- lent position, without prejudice to his or her seniority or other rights and privileges; (b) Make whole the above-named employees for any loss of pay they may have suffered by reason of the Respondent's discrimination against them, in the manner provided herein the section entitled "The remedy" ; (c) Post immediately at its plant in Exeter, California, copies of the notice attached hereto and marked "Appendix A." Copies of such notice, to be fur- 36 DECISIONS OF NATIONAL LABOR RELATIONS BOARD nished by the Regional Director for the Twentieth Region (San Francisco, Cali- fornia), shall, after being duly signed by the Respondent's representative, be posted by the Respondent immediately upon receipt thereof and maintained by it for sixty (60) consecutive days thereafter in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material ; (d) Notify the Regional Director for the Twentieth Region (San Francisco, California), in writing within twenty (20) days from the date of the receipt of this Intermediate Report what steps the Respondent has taken to comply herewith. It is further recommended that unless on or before twenty (20) days from the date of the receipt of this Intermediate Report the Respondent notifies the said Regional Director in writing that it will comply with the foregoing recom- mendations, the National Labor Relations Board issued an order requiring the Respondent to take the action aforesaid. As provided in Section 203.46 of the Rules and Regulations of the National Labor Relations Board, Series 5, effective August 22, 1947, any party may, within twenty (20) days from the date of service of the order transferring the case to the Board, pursuant to Section 203.45 of said Rules and Regulations file with the Board, Rochambeau Building, Washington 25, D. C., an original and six copies of a statement in writing setting forth such exceptions to the Intermediate Report or to any other part of the record or proceeding (including rulings upon all motions or objections) as he relies upon, together with the original and six copies of a brief in support thereof ; and any party may, within the same period file an original and six copies of a brief in support of the Intermediate Report. Immediately upon the filing of such statements of exceptions and/or briefs, the party filing the same shall serve a copy thereof upon each of the other parties. Proof of service on the other parties of all papers filed with the Board shall be promptly made as required by Section 203.85. As further provided in said Section 203.46, should any party desire permission to argue orally before the Board, request therefor must be made in writing to the Board within ten (10) days from the date of service of the order transferring the case to the Board. In the event no Statement of Exceptions is filed as provided by the aforesaid Rules and Regulations, the findings, conclusions, recommendations, and recom- mended order herein contained, shall, as provided in Section 203.48 of said Rules and Regulations be adopted by the Board and become its findings, conclusions, and order, and all objections and exceptions thereto shall be deemed waived for all purposes. Louis PLoST, Trial Examiner. Dated August 5, 1948. APPENDIX A NOTICE TO ALL EMPLOYEES Pursuant to the recommendations of a Trial Examiner 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 in any manner interfere with, restrain, or coerce our em- ployees in the exercise of their right to self-organization, to form labor organizations, to join or assist NATIONAL FARM LABOR UNION, A. F. L., or any BARR PACKING COMPANY 37 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. WE WILL OFFER to the employees named below immediate and full rein- statement to their former or substantially equivalent positions without prejudice to any seniority or other rights and privileges previously enjoyed, and make them whole for any loss of pay suffered as a result of the discrimination. Simon Peter Baty William Flud Joe Grimes John Maple L. D. Beene A. C. Hackney William Earl Rutledge Shelby Caddell Billie Gene Grissom Nadine Rutledge Myrtle Maple Bobby Grissom Bernice Beene Flossie Mae Baty Vera Claudine Linton Velma Wilson Edith Morgan Velma Hackney All our employees are free to become or remain members of the above-named union or any other labor organization. We will not discriminate in regard to hire or tenure of employment or any term or condition of employment against any employee because of membership in or activity on behalf of any such labor organization. BARR PACKING COMPANY, Employer. Dated -------------------------- By ----------------------------------- (Representative) (Title) NOTE : Any of the above-named employees presently serving in the Armed Forces of the United States will be offered full reinstatement upon application in accordnace with the Selective Service Act after discharge from the Armed Forces. This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. 838914-50--vol. 82-4