John H. Barr Marketing Co.

JOHN H. BARR MARKETING COMPANY 875 visor within the meaning of the Act 7 and we shall exclude him from the unit. Labor construction foreman: The Employer likewise contends that the labor construction foreman should be excluded from the unit upon the ground that he is a supervisor. This individual is in charge of a working force of 29, employees and is directly responsible to the superintendent of construction. As part of his duties, the labor con- struction foreman plans the work of the labor force and assigns the employees in his charge to various jobs. The labor construction fore- man does very little manual labor and has an assistant to aid him in the direction of the employees in his group. Upon the basis of the foregoing, we find that the labor construction foreman responsibly directs the work of other employees." Accordingly, we find that he is a supervisor and we shall exclude him from the unit. We find that all production and maintenance employees at the Em- ployer's Tyrone, Pennsylvania, plant, including fire watchmen and the wood scaler, but excluding all office and clerical employees, profes- sional employees, gate watchmen, guards, tour foremen, boss beater- men, bleach plant foremen, the labor construction foreman, and all other supervisors as defined in the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Sec- tion 9 (b) of the Act. [Text of Direction of Election omitted from publication in this volume.] 'Connecticut Electrical Manufacturing Co., supra; Todd Shipyards Corporation, 87 NLRB 627. " Buckeye Rural Electric Cooperative, Inc., 88 NLRB 196, 197. JOHN H. BARR MARKETING COMPANY and LOCAL INDUSTRIAL UNION No. 78, CIO. Case No. !1-CA-993. October 17,1951 Decision and Order STATEMENT OF THE CASE Upon a charge filed January 2, 1951, and an amended charge filed February 12, 1951, by Local Industrial Union No. 78, affiliated with the Congress of Industrial Organizations, herein called the Union, the General Counsel of the National Labor Relations Board, by the Regional Director for the Twenty-first Region (Los Angeles, Cali- fornia), issued his complaint dated March 28, 1951, against John H. Barr Marketing Company, herein called the Respondent, alleging that the Respondent had engaged in and was engaging in unfair labor practices affecting commerce within the meaning of Section 8 (a) (1), 96 NLRB No. 118. 876 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (3), and (5) of the National Labor Relations Act, as amended (61 Stat. 136), herein called the Act, at its Tolleson, Arizona, packing shed. Copies of the charge, amended charge, complaint, and notice of hearing were served on the parties on March 28, 1951. With respect to the unfair labor practices, the complaint alleged', in substance, that the Respondent (1) refused to bargain with the Union, on or about December 29, 1950, although the Union was at that time and subsequently the duly designated collective bargaining represent- ative of the employees in an appropriate unit; (2) refused and failed to reinstate certain of its employees who went on strike on or about December 28, 1950, although they unconditionally applied for rein- statement; (3) discharged four named employees on or about De- cember 28, 1950, and thereafter refused and failed to reemploy them for the reason that they had engaged in union and concerted activities protected by the Act. . , The Respondent filed its answer to the complaint'on April 4, 1951, denying that it had engaged in any of the unfair labor practices alleged. Pursuant to notice a hearing was held in Phoenix, Arizona, on May 1, 2, and 3, 1951, before William E. Spencer, the Trial Exam- iner duly designated by ' the Chief Trial Examiner. The General Counsel was represented by counsel, the Respondent was represented by one of its officers, and the Union was represented by two repre- sentatives of the C. I. O. All parties participated in the hearing and were afforded full opportunity to be heard, to. examine and cross- examine witnesses, and to introduce evidence pertinent to the issues. After the evidence had been taken, counsel for the General Counsel and Mr. John H. Barr, an officer of the Respondent, presented oral argument before the Trial Examiner. The parties waived the filing of briefs and proposed findings of fact and conclusions of law with the Trial Examiner. On May 3,1951, the Trial Examiner issued his Intermediate Report, delivering such report orally to the parties before the close of the hearing. It is to be found at pages 245-280 of the transcript of hearing in this case and finds that the Respondent had engaged in violations of Section 8 (a) (1), (3), and (5), as alleged in the com- plaint, and recommends that it cease and desist therefrom and take certain affirmative action, as set forth in the Intermediate Report. Thereafter, the Respondent filed exceptions to the Intermediate Re- port and a brief in support thereof. Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its powers in connection with this case to a three-mem- 'ber panel [Chairman Herzog and Members Styles and Murdock]. The Board has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. JOHN H. BARR MARKETING COMPANY 877 The rulings are hereby affirmed. The Board has considered the Inter- mediate Report, the Respondent's exceptions and brief, and the entire record in the case, and makes its findings, conclusions, and order, as follows: 1 FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT The Respondent, John H. Barr Marketing Company, is an Arizona corporation, with its principal office and place of business in Phoenix, Arizona. It is engaged in the handling of fresh fruit and vegetables, including processing, packaging, shipment, and sale of these fruits and vegetables, conducting such operations in the States of Arizona and New Mexico. Respondent also engages in the brokerage of fruits and vegetables for other companies. During a portion of the calendar year 1950, in its brokerage business, the Respondent handled accounts valued in excess of $500,000, involving produce, approximately 95 per- cent of which was shipped to points outside the State of Arizona. From its packing shed at Tolleson, Arizona, the shed at which the unfair labor practices were alleged to have occurred in this case, the Respondent shipped carrots valued at approximately $30,000 to points outside the State of Arizona, the majority of this amount being shipped during a small portion of the calendar year 1951. The Re- spondent concedes and we find that it is engaged in commerce within the meaning of the Act, and that it will effectuate the policies of the Act to assert jurisdiction in this case. II. THE LABOR ORGANIZATION INVOLVED Local Industrial Union No. 78, affiliated with the Congress of Indus- trial Organizations, is a labor organization, admitting to membership employees of the Respondent. III. TIIE UNFAIR LABOR PRACTICES A. The background The Respondent opened its packing shed at Tolleson, Arizona, on or about December 18, 1950. At the time of their hiring most of the employees failed to determine their starting wages, assuming` that they would be paid the "union scale." However, because the Re- spondent was engaged in a somewhat different and untried type of operation from normal carrot packing, it had established its own 'The Board is largely in agreement with the Trial Examiner's ultimate findings. How- ever, because an oral Intermediate Report dictated into the record of the hearing neces- sarily lacks the precision of a written report, the Board cannot readily adopt the findings, conclusions , and recommended order-by attaching them hereto in the customary manner. 878 DECISIONS OF NATIONAL LABOR RELATIONS BOARD wages which were not as high as those expected by the employees. At the end of the first week a few employees drew pay checks but did not compute their hourly wages. However, by the end of the second week of operations, ending on December 28, 1950, most, if not all, of the 52 rank-and-file employees at the shed were paid, a number of them for the first time. At this time it became generally apparent to the employees that they were not being paid the wages they had as- sumed they were to receive, and they became dissatisfied and desired to change the situation. On the afternoon of December 28, employee Sid Goff spoke to Super- intendent Green in an attempt to convince Green that the employees should receive higher wages. Green agreed, but told Goff that he had no power to remedy the situation. After Goff's failure to obtain a wage increase, the employees decided that if necessary they would leave their jobs, whereupon all but three 2 of the rank-and-file em- ployees left their jobs and started to leave the shed. As they were leaving, employees Jones, Mattox, Sid Goff, and Sam Morgan, who led the walkout, spoke to Superintendent Green, telling him that the employees were leaving because they wanted more money. Super- intendent Green then ordered everyone "who wanted to work" back to his job and asked for the names of those who did not want to work for the wages the Respondent was currently paying, saying that he would have pay checks prepared for those employees by the following day. Employees Jones, Mattox, Sid Goff, Sam Morgan, and several others gave Green their names. Thereupon all of the employees who had stopped working left the shed, discussed the matter for a while out- side the shed, and then went to their homes for the evening. Following the dispersal of the employees, employee Sid Goff went to the local union hall and spoke to C. I. O. Regional Director Dragon and C. I. O. Representative McNamara concerning the situation at the Respondent's shed. The union agents then went to Tolleson and spoke to President Barr,. Vice-President Barr, and Superintendent Green who explained to them the type of operations the Respondent was conducting and why the Respondent was paying the particular wages which were currently in effect at the shed. The union agents agreed that there might be some question as to what the wages should be for such an operation, and promised to discuss the matter further with the employees when they gathered the next day. B. The discriminatory discharge of 8 employees and the discrimina- tory refusal to reinstate 41 employees The following morning, December 29, 1950, the striking employees gathered in front of the plant around a fire someone had built. Shortly 2 Charles Goodwin, Christine Goodwin, and John Hounshell. JOHN H. BARR MARKETING COMPANY 879 after 8 a. m. C. I. 0. Director Dragon and Representative McNamara arrived to meet with the employees. Before addressing the employees Director Dragon asked all of them to sign authorization cards for the Union, so that even though a number of them might have already been members of the Union, Dragon would be sure that he had cards ,on file for all of them. A majority of the employees signed cards which were introduced at the hearing, as discussed below. After obtaining the cards Director Dragon told the employees of the con- versation the previous evening with the Respondent's representatives and requested that they return to work for the same wages, giving the Respondent more time to see how the operation progressed. Dragon explained that the employees could discuss a new wage scale after a few more weeks at the same scale. After Dragon had spoken, a discussion ensued among the employees who finally voted almost unanimously to follow Dragon's advice and return to work. After the vote one of the leaders of the group, employee Mattox, still pro- tested that they should stay out for their original objectives. How- dever, after being admonished that the employees had "voted as a unit" and that they should "remain as a unit," Mattox agreed to go along with the others.3 Having settled the issue among themselves, the union agents and several of the leaders of the employees approached President Barr and Superintendent Green who were standing nearby. Director Dragon told Barr and Green that the employees had voted to return to work pending discussion of possible wage increases in the future, to which Barr replied that the Respondent could make no promises. However, Dragon told Barr that it made no difference, the employees had all voted to return. At this point Superintendent Green spoke up, stating that he would allow all of the employees to return to their jobs except those who had given him their names on the previous day. Green stated that by giving him their names as not being willing to work for the current wages, they had quit their jobs and were no longer on the pay roll 4 Upon Green's refusal to reinstate those employees who had given him their names on the previous day, at least half of whom Green considered the leaders of the work stoppage, the employees again dis- 3 Superintendent Green indicated that this event may have occurred at a later time. However, we credit , as did the Trial Examiner , McNamara 's clear and unequivocal testimony which placed this occurrence during the discussion among the employees regarding their decision to return to work. * Some of the testimony at the hearing indicated that Green had pointed at four of the employees who were the leaders of the group , Mattov, Morgan , Goff, and Jones, and had agreed to reinstate all other employees . The Trial Examiner found that only these four were discharged at this time . However, in view of Green's testimony that he also con- sidered employees Free, Bell, H. C. Potter , and Claudia Potter, whose names he had also taken, as having terminated their employment and that he was unwilling to reinstate them with the others, we find that Superintendent Gieen discharged all eight employees at this time. 880 DECISIONS OF NATIONAL LABOR RELATIONS BOARD) cussed their plans and finally voted to return to work only as a group. Another conference was held with Green, during which he, steadfastly refused to reinstate the leaders, stating to employee Morgan at one point, "If it wasn't for you we would all have been working, and I am not going to take you back." Because of Green's refusal to accept them as a group, the strikers did not return to work at that time, and the Respondent has, at all times since, refused to change its position.5 After its refusal to accept the strikers' offer to return as a group, the Respondent reopened its operations with replacements, and operated until approximately March 8, 1951. The employees peacefully picketed the Respondent's shed.6 C. The Respondent's refusal to bargain with the Union 1. The appropriate unit and the Union's majority status therein The complaint alleges that all employees of the Respondent at its Tolleson, Arizona, packing shed, excluding supervisors as defined in the Act, constitute a unit appropriate for the purposes of collective bargaining. The Respondent offered no evidence at the hearing con- cerning the appropriateness of such a unit and at no time has con- tended that such a unit is inappropriate. Respondent's representative at the hearing, Vice-President Barr, testified that the Respondent's employees were not hired to perform specific work but were to per- form any work for which they were needed. C. I. O. Representative McNamara gave, in Vice-President Barr's words, "a reasonably good description of [the Respondent's] operation" as a shed or plant into which carrots are brought in large bags, dumped into a rotary washer from which they go onto a sorting belt. The carrots are sorted on the belt and then bagged in an appropriate bag depending on the grade of carrot. Besides the employees working on the washing, sorting, and bagging of carrots, there are maintenance men who keep the machinery in repair, loaders who unload trucks coming from the field and load bags of carrots which are ready for sale, truck drivers, and bag sewers. On the basis of the facts given above we find that all employees at the 'Respondent's Tolleson, Arizona, packing shed excluding super- visors as defined in the Act, constitute a unit appropriate for the 5 Employee Goff testified that Superintendent Green had told him that he could get the others to return to work and that Goff had replied that he would not go back . The Re- spondent did not contend that it had ever changed its position with regard to the strike leaders. We find that Green 's statement to Goff was not an acceptance of the strikers' unconditional offer to return as a group and that the Respondent at no time has been willing to accept that offer. 6 Superintendent Green testified that there was no disorder on the picket line. He also testified generally that once or twice the marching on the line and "accusations and some slanderous remarks" excited the replacements. JOHN H. BARR MARKETING COMPANY 881 purposes of collective bargaining within the meaning of Section 9 (b) of the Act. On December 28, 1950, at the time of the strike, the Respondent had 52 nonsupervisory employees in the appropriate unit.' As noted above, at the start of the meeting of the strikers the morning follow- ing the beginning of the strike, the Union requested that all of the employees sign union authorization cards. A number of the em- ployees signed cards at this time and some signed them at later dates. At the hearing in this case the General Counsel introduced into evi- ,dence 28 cards signed by striking employees on the morning'of De- cember 29.8 The Respondent does not challenge the authenticity of any of the cards. It huLs been held by the Board and the courts in a long line of deci- sions that the majority status of a labor organization may be predi- cated on union authorization cards-9 Having found that the Union, on the morning of December 29, 1950, represented 28 of the 52 employees in the unit found appropriate .above, we find that the Union, as of December 29, 1950, and at all times thereafter represented a majority of the Respondent's employees in that unit. 2. The Respondent's refusal to bargain upon request with the union During the discussion regarding the employees' request to return to work, C. I. O. Representative McNamara, in an effort to demon- strate to Superintendent Green that he was speaking on behalf of all the workers who wanted to return, slapped the authorization cards .against his hand, stating, "Here are the cards, you can look them over." After sending the Respondent a telegram later in the day stating that a committee of the Respondent's employees was willing to meet with it to discuss the wage rates which should be in effect at its packing shed, the Union formalized its request on the following day, stating that it represented a majority of the Respondent's employees and re- questing that the Respondent recognize and bargain with the Union as the majority representative of its employees. The Respondent has at all times since failed to answer any of the Union's requests for bargaining. ' A fifty-third employee, Claudell Smith testified that his employment was terminated on December 28, prior to the strike 8 After a number of these cards had been identified by their signers as having been signed by them at the meeting of employees on the morning of December 29, in order to avoid the delay entailed by calling each employee who had signed a card to identify his card, with the agreement of the Respondent , C. I. O. Representative McNamara was permitted to identify General 'Counsel's Exhibits 17-41 , inclusive, as union cards which he had collected from the employees after they had signed them at the December 29 meeting. The cards were then admitted into evidence without objection. See e g N L R B v. Morris P Kirk & Son, 151 P. 2d 490, 492 (C. A. 9) ; N. L. R. B. v. Van KZeck d Company, Inc, 189 F. 2d 516 (C. A. 2). ' 882 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Conclusions From the evidence discussed above we find that the Respondent dis- criminatorily discharged the eight employees whose names Superin- tendent Green took on December 28, and whom he refused to reinstate the following day. The Respondent contended that these eight em- ployees had severed their employment status by stating that they would not work for the current wages. However, we find, as did the Trial Examiner, that these employees, like all of the employees, were engaging in a concerted activity protected by the Act by leaving the plant in an effort to force the Respondent to grant a wage increase?o We further find that those of the strikers )vho were willing to reveal themselves as the leaders of the other employees by volunteering their names to Superintendent Green upon his request, did not thereby sever their employment relationship. This finding is supported by the later actions of these employees in attempting to organize the employees for effective action in order to win the increase, particularly the action of employee Goff in arranging for the Union to act as the spokesman for the strikers. In refusing to permit these eight employees to return to work because of their concerted and union activities, we find that ,the Respondent discriminatorily discharged them in violation of both Section 8 (a) (1) and Section 8 (a) (3) of the Act?1 We further find that the Respondent's refusal to reinstate all of the strikers as a group, none of whom had thus been replaced, constituted a discriminatory refusal to reinstate the 41 strikers who refused to return to work until the employer would accept them and the eight other employees whom the Respondent discriminatorily discharged .ml As the Board stated in the Draper case : To permit the respondent to single out a select number of a group of employees for reinstatement and unlawfully to deny reinstatement to others in the same group, acting in concert with them, is discrimination in its purest form against the entire group, for it denies to each member of the group the very protec- tion the Act seeks to afford. And it deprives them of such col- lective protection at a time when they require it most, namely at the abandonment of what is to them an unsuccessful strike. 10 Cf. Gullett Clan Company v. N. L. It. B., 179 F. 2d 499 (C. A. 5) ; reversed on other grounds 340 U. S. 361. 11 The Respondent contended that these employees did not request reinstatement. We find, however, from an overwhelming preponderance of testimony , that the request for reinstatement was made on behalf of all the striking employees and that no individual application for reinstatement was necessary . Cf. Sifers Candy Company, 75 NLRB 296, enforced, 171 F. 2d 63 (C. A. 10) ; The M. H. Ritzwoller Company, 15 NLRB 15, enforced as modified on other grounds , 114 F. 2d 432, 438 (C. A. 7). 12 Draper Corporation, 52 NLRB 1477 , enforcement denied on other grounds, 145 F. 2d 199 (C. A. 4) ; see also Houston and North Texas Motor Freight Lines, Inc., 88 NLRB 1462 ; Rapid Roller Co. v. N. L. R. B., 126 F. 2d 452, 461 (C. A. 7) ; N. L. R B. v. Poultrymen's Service Corporation, 138 F. 2d 204 (C. A. 8). JOHN H. BARR MARKETING COMPANY 883 We find that in penalizing the group of strikers who unconditionally offered to return to work because of their concerted and union activi: ties, the Respondent violated independently Section 8 (a) (1) and Section 8 (a) (3) of the Act. Finally, we find, in agreement with the Trial Examiner, that the Respondent violated Section 8 (a) (5) of the Act by refusing to bargain with the Union as the majority representative of its employees on and after December 29, 1950. The Union's request in its telegram on December 29, that the Respondent meet with it concerning the wages at the Respondent's packing shed, after it had notified the Respondent that it represented a majority of the employees at the shed only that morning, placed upon the Respondent the duty to meet and bargain with the Union which represented at least 28 of the 52 em- ployees in the appropriate unit. The Union's formal request to bar- gain presented to the Respondent on the following day removes any doubt as to the sufficiency of its request. The Respondent admittedly failed to answer the Union's requests, but seeks to avoid its statutory duty to bargain with the Repre- sentative of its employees by contending that all of the employees had quit their jobs on December 28, and were not employees when the Union made its requests, or in the alternative, that the employees were mere economic strikers whom the Respondent replaced on December 30, 1950, thus ending any duty to bargain with the Union after that date. It is clear from the facts found above that the employees did not quit their jobs, but went on strike in an effort to obtain a wage increase and retained their status as employees after that date Y3 It is also clear, as found above, that when the Respondent refused to accept the employees' unconditional offer to return as a group to their jobs on December 29, it changed their status from that of economic strikers to that of employees discriminated against in violation of Section 8 (a) (3) of the Act. Their status as employees was therefore fixed at this point and could not be affected by Respondents' hiring of replacements at a later date 1' We therefore reject the Respondent's contention that the Union was not the majority representative of its employees when it admittedly failed to answer the Union's requests to bargain, thereby violating Section 8 (a) (5) and (1) of the Act. 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 operations 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 In Section 2 (3) of the Act ; N. L. R. B. v. Mackay Radio & 'Telegraph Co., 304 U. S. 333. 14 Section 2 (3) of the Act ; N. L. R. B. v. Mackay Radio & Telegraph Co., supra; Phelps Dodge Corp. v. N. L. R. B., 313 U. S. 177 , 189-196. 884 DECISIONS OF NATIONAL LABOR RELATIONS BOARD • 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 practices, we shall order it to cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. We have found that the Respondent discriminated against the employees whose names appear in Appendix A, attached hereto, by discharging 8 of them and refusing to accept the unconditional offer to return to their jobs of those 8 and 41 others as a group. We shall, therefore, order the Respondent, when it resumes operations at its Tolleson, Arizona, packing shed, to offer each of the employees in Appendix A immediate and full reinstatement to his former or sub- stantially equivalent position,-15 without prejudice to his seniority or other rights and privileges, dismissing if necessary ' any employees hired in his place. We shall also order the Respondent to make whole each of them for any loss of pay he may have suffered as a result of the discrimination against him, by payment to each of them of a sum of money equal to the amounts which he would have earned between December 29, 1950, and the date on which lie is offered reinstatement, less (1) any amounts which he would not have earned because of the cessation of operations of the Tolleson, Arizona, shed on or about March 8, 1951, or any other nondiscriminatory shutdown of the Tolleson shed, and (2) his net earnings during that period 16 Loss of pay shall be computed in accordance with the formula enunciated by the Board in F. W. Woolworth Co., 90 NLRB 289. We shall also order the Respondent to make available to the Board upon request, payroll and other records to facilitate the checking of the amount of back pay due 17 We have also found that the Respondent has refused to bargain collectively with the Union as the exclusive representative of its employees in an appropriate unit. We shall therefore order that the Respondent upon request bargain collectively with the Union. Because of the Respondent's unlawful conduct and its underly- ing purpose we are convinced that the unfair labor practices found are persuasively related to other unfair labor practices proscribed by the Act and that a danger of their commission in the future is to is In accordance with the Board's consistent interpretation of the term , the expression "former or substantially equivalent position " is intended to mean "former position wher- ever possible, but if such position is no longer in existence then to a substantially equivalent position " See The Chase National Bank of the City of New York, San Juan, Puerto Rico, Branch, 65 NLRB 827, 829. l" See Crossett Lumber Co., 8 NLRB 440. 14 F. W Woolworth Co., supra. JOHN H. BARR MARKETING COMPANY 885 be anticipated from the course of the Respondent's conduct in the past. The preventive purpose of the Act will be thwarted unless our order is coextensive with the threat. In order, therefore, to make effective the interdependent guarantees of Section 7, to prevent a recurrence of unfair labor practices, and to minimize strife which burdens and obstructs commerce and thus to effectuate the policies of the Act, we will order that the Respondent cease and desist from infringing in any manner upon the rights guaranteed by Section 7 of the Act. Upon the basis of the foregoing findings of fact and upon the entire record in the case, the Board makes the following : CONCLUSIONS OF LAw 1. Local Industrial Union No. 78, C. I. 0., is a labor organization within the meaning of Section 2 (5) of the Act. 2. By discriminating in regard to the hire and tenure of employ- ment of the individuals named in Appendix A, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (3) of the Act. 3. All employees of the Respondent at its packing shed operations, excluding the supervisors as defined by the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act. 4. Local Industrial Union No. 78, CIO, was on December 29, 1950, and at all times since has been the exclusive representative within the meaning of Section 9 (a) of the Act of all employees in the aforesaid unit for the purposes of collective bargaining. By refusing on and after December 29, 1950, to bargain collec- tively with Local Industrial Union No. 78, CIO, as the exclusive bargaining representative of its employees in an appropriate unit, the Respondent has engaged in and is engaging in unfair labor prac- tices within the meaning of Section 8 (a) (5) of the Act. 6. By interfering with, restraining, and coercing its employees in the exercise of rights guaranteed in Section 7 of the Act, the Re- spondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act. 7. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2 (6) and (7) of the Act. Order Upon the entire record in the case, and pursuant to Section 10 (c) of the National Labor Relations Act, the National Labor Relations Board hereby orders that the Respondent, John H. Barr Marketing 974176-52-vol. 96-57 886 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Company, Phoenix, Arizona, its officers, agents, successors, and as- signs shall: 1. Cease and desist from : (a) Discouraging membership in Local Industrial Union No. 78, CIO, or in any other labor organization of its employees, by dis- criminatorily discharging or refusing to reinstate any of them, or by discriminating in any other manner in regard to their hire or- tenure of employment, or any term or condition of employment. (b) Refusing to bargain collectively with Local Industrial Union No. 78, CIO, as the exclusive representative of all its employees in the appropriate unit with respect to rates of pay, wages, hours of employment, or other conditions of employment. (c) 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 Local Industrial Union No. 78, CIO, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in col- lective bargaining or other mutual aid or protection, or to refrain from any or all such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organiza- tion as a condition of employment, as authorized in Section 8 (a) (3) of the Act, as guaranteed in Section 7 thereof. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Offer to the individuals listed in Appendix A immediate and full reinstatement to their former or substantially equivalent positions without prejudice to their seniority and other rights and privileges in the manner set forth in the section entitled "The Remedy," above. (b) Make whole the same individuals in the manner set forth in in the section above, entitled "The Remedy" ; (c) Upon request, make available to the Board or its agents for examination and copying all payroll records, social security payment records, time cards, personnel records and reports, and all other rec- ords necessary to analyze the amounts of back pay due. (d) Upon request, bargain collectively with Local Industrial Union No. 78, CIO, as the exclusive representative of all the employees in the appropriate unit described above, and embody any understanding reached in a signed contract. (e) Upon resumption of its packing shed operations at or in the vicinity of Tolleson, Arizona, post copies of the notice attached hereto and marked "Appendix B." 18 Copies of said notice, to be furnished by the Regional Director for the Twenty-first Region, shall,'after being 18 In the event that this Order is enforced by decree of a United States Court of Appealti, there shall be inserted in the notice before the words "Decision and Order" the words : "Decree of the United States Court of Appeals Enforcing." JOHN H. BARR MARKETING COMPANY 887, duly signed by the Respondent's authorized representative, be posted by the Respondent 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. (f) Notify the Regional Director for the Twenty-first Region, Los Angeles, California, in writing, within ten (10) days from the date of this Order, what steps the Respondent has taken to comply herewith. Appendix B. Baca Bill Dowden Jack Radford Mabel Dowden Omega Southerland J. E. Walker Harve Mattox Fount Barksdale H. C. Potter Sam Morgan Sid Goff Jack Jones Marie Yaben Eunice Reams J. Powell Doris Walker E. Brewer Dora Free Evelyn Walker J. Denton Shirley Goff Lois Morgan Edythe Ellis Pearl Terry A. Smith A Appendix B K. Page Mary Swetman Syble White Edith Philips Jerry Watkins Peggy Martin May Sandstrum Ruth Elder Helen Smith Bernice Rinks Maude Heintz Frances Brewer Beulah Brashear Claudia Potter Trilie Justice Dorothy Bell Roxie Tyree Rillie Smith Virgie Bryant M. Walker Mrs. Barksdale Virgie Kitchen Mrs. Ryan Lucille Marriot 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 in any manner interfere with, restrain, or coerce our employees in the exercise of their right to self-organization, 888 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to form labor organizations, to join or assist LocAL INDUSTRIAL, UNION No. 78, C.I. 0., or any other labor organization, to bar- gain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection or to refrain from any or all such activities, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment, as authorized in Section 8 (a) (3) of the Act, as guaranteed in Section 7 thereof. WE wILL offer to the employees listed below full reinstatement to their former or substantially equivalent positions without prejudice to any seniority or any other rights or privileges previ- ously enjoyed, if and when we resume packing shed operations at .or in the vicinity of Tolleson, Arizona, to the extent that there are positions available for them, and we will make them whole for any loss of pay suffered as a result of discrimination. B. Baca Bill Dowden Jack Radford Mabel Dowden Omega Southerland J. E. Walker Harve Mattox Fount Barksdale H. C. Potter Jerry Watkins Ruth Elder Maude Heintz Claudia Potter Roxie Tyree M. Walker Sam Morgan Sid Goff Jack Jones Marie Yaben Eunice Reams J. Powell Doris Walker E. Brewer Dora Free Peggy Martin Helen Smith Frances Brewer Trilie Justice Rillie Smith Mrs. Barksdale Evelyn -Walker J. Denton Shirley Goff Lois Morgan A. Smith K. Page Mary Swetman Syble White Edith Philips May Sandstrum Bernice Rinks Beulah Brashear Dorothy Bell Virgie Bryant Virgie Kitchen Mrs. Ryan Edythe Ellis Pearl Terry Lucille Marriot WE WILL bargain collectively upon request with the above-- mamed union as the exclusive representative of all employees in the bargaining unit described below with respect to rates of pay, hours of employment, or other conditions of employment, RADIO CORPORATION OF AMERICA 889 and if an understanding is reached, embody such understanding in a signed agreement. The bargaining unit is: All of our employees at our packing shed operations at or in the vicinity of Tolleson, Arizona, with the exception of supervisors as defined in the Act. All our employees are free to become or remain members of the above-named union or any other labor organization, or to refrain from such affiliation, except to the extent that such right may be affected by an agreement requiring membership in a labor organiza- tion as a condition of employment as authorized in Section 8 (a) (3) of the Act as guaranteed in Section 7 thereof. We will not dis- criminate in regard to hire or tenure of employment or any term or condition of employment against any employee because of his membership in or activity on behalf of such labor organization -------------------------------- (Employer) Date -------------------- 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. RADIO CORPORATION OF AMERICA, RCA VICTOR DIVISION, C AMDEN, NEW JERSEY, PLANT and LOCAL 241, INTERNATIONAL FEDERATION OF TECH- NICAL ENGINEERS , ARCHITECTS AND DRAFTSMEN 'S UNIONS, A. F. L.,1 PETITIONER . Case No. 4-RC-1098. October 17,1951 Decision and Order Upon a petition duly filed, a hearing was held before Harold Kowal, hearing officer. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed. Upon the entire record in this case, the Board finds : 1. The Employer is engaged in commerce within the meaning of the National Labor Relations Act. 2. The labor organizations involved claim to represent employees of the Employer. 3. No question affecting commerce exists concerning the representa- tion of employees of the Employer within the meaning of Section 9 (c) (1) and Section 2 (6) and (7) of the Act, for the following reasons: The Petitioner seeks a unit consisting of all the employees at the Employer's plant who are classified as timekeepers. The Employer 1 The names of the parties appear as amended at the hearing. 96 NLRB No. 130. ..