Al Massera, Inc.

712 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Appendix B NO T I C E To ALL MEMBERS OF l\IILLWRIGIITS LOCAL UNION No. 102, UNITED BROTHERHOOD OF CARPENTERS & JOINERS OF AMERICA, AFL, AND To ALL EMPLOYEES OF, AND, APPLICANTS FOR EMPLOYMENT WITII, G. W. THOMAS DRAYAGE & RIGGING CO., INC. 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, as amended, we hereby notify you that : WE WILL NOT cause C. W. THOMAS DRAYAGE & RIGGING Co., INC., its officers, agents, successors, or assigns, to discharge or otherwise discriminate against its employees or applicants for employment in violation of Section 8 (a) (3) of the Act. WE WILL No,r in any like or related manner restrain or coerce employees of, or applicants for employment with, G. W. THOMAS DRAYAGE & RIGGING Co., INC., its successors or assigns, in the exercise of their rights to engage in, or to refrain from engaging in, any or all of the concerted activities. guaranteed in Section 7 of the Act. WE wrLr. make whole JOHN L. MYERs for any loss of pay suffered as a result of the discrimination against him. MILLWRIGHTS LOCAL UNION No. 102, UNITED BROTHERHOOD OF CARPENTERS & JOINERS of AMERICA, AFL, Labor Organization. By ---------------------------------------------- (Representative ) ( Title) Dated --------------------------- This notice must remain posted for 60 days from the date hereof, and must. not be altered, defaced, or covered by any other material. AL MASSERA, INC.; J. J. CROSETTI AND WARREN E. SCARBOROUGH, COPARTNERS, D/B/A J. J. CROSETTI Co.; E. J. RUSSELL, AN INDIVIDUAL, D/B/A INDEPENDENT GROWERS CO.; WALTER M. CHRISTENSEN, HAROLD, S. CHRISTENSEN, AND ANDREW H. CHRISTENSEN, JR., COPARTNERS, D/B/A CHRISTENSEN BROS.; PETER A. STOLICH, AN INDIVIDUAL, D/B/A PETER A. STOLICH Co.; R. T. ENGLUND, AN INDIVIDUAL, D/B/A R. T. ENGLUND CO.; AND H. E. CREAN, AN INDIVIDUAL, D/B/A GROWERS PRODUCE DISPATCH and LOCAL INDUSTRIAL UNION No. 78, CIO K. R. NUTTING, AN INDIVIDUAL, D/B/A K. R. NUTTING Co. and LORETTA HIGUERA FRESH FRUIT & VEGETABLE WORKERS' LOCAL No. 78 and LOCAL INDUSTRIAL UNION No. 78, CIO FRESH FRUIT & VEGETABLE WORKERS' LOCAL No. 78 and GROWERS- SHIPPER VEGETABLE ASSOCIATION OF CENTRAL CALIFORNIA. Cases Nos. .0-CA-436, 456, 461, 467, 490, 491, 495, 496, and 20-CB-150, 97 NLRB No. 111. AL MASSERA', INC., ET AL. 713 Decision and Order On May 28, 1951, Trial Examiner Wallace E. Royster issued his Intermediate Report in the above-entitled proceedings, finding that Respondents Local 78, Christensen, Stolich, and Englund had en- gaged in and were engaging in certain unfair labor practices, and recommending that they cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto. The Trial Examiner further found that Respondents Massera, Crosetti, Independent, Growers, and Nutting had not en- gaged in any unfair labor practices, and recommended that the com- plaint be dismissed with respect to them. Thereafter, Christensen, Stolich, Englund, and the General Counsel filed exceptions to the Intermediate Report and supporting briefs. Local 78 filed no ex- ceptions. The Board has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the In- termediate Report, the exceptions and briefs, and the entire record in the case. We adopt the findings, conclusions, and recommendations .of the Trial Examiner only to the extent that they are consistent with the Decision and Order herein. We agree with the Trial Examiner that Respondents Christensen, Stolich, and Englund violated Section 8 (a) (3) and 8 (a) (1) of the Act by discharging, respectively, Brubaker and Papangellin, Horton, and Brookover, and that Respondent Local 78 violated Section 8 (b) (2) and 8 (b) (1) (A) of the Act by causing these Respondent Employers to discriminate against the above-named employees in -violation of Section 8 (a) (3) of the Act. We also conclude, contrary to the Trial Examiner, that Respon- dents Massera, Crosetti, Independent, Growers, and Nutting violated Seciton 8 (a) (3) and 8 (a) (1) of the Act by discharging, respectively, Beatrice and Christine Gordon, Sims, Kimbriel, Thurman, and Higuera, for nonmembership in Local 78, and that the Respondent Local 78 violated Section 8 (b) (2) and 8 (b) (1) (A) of the Act by causing these Respondent Employers to discriminate against these employees in violation of Section 8 (a) (3) of the Act. In reaching these conclusions, we find it unnecessary to consider each alleged violation of the Act separately, for, unlike the Trial Examiner, we find that the Act does not sanction the union-security provisions of the contract between the Association and Respondent Local 78 alleged as a defense to the discrimination. The union-shop clause, which is quoted in the Intermediate Report, does not accord to those who were employed when the contract was executed, but who were not already members of Local 78, the statutory 714 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 30-day period to become members.' Thus, the agreement is not one sanctioned by the Act.2 Although the General Counsel, at the hear- ing, apparently conceded the validity of the union-security clause in this respect, the Respondents have put in issue the validity of the union-security agreement in all respects, by interposing it as a defense to the discharges. Thus, it is incumbent upon the Board to examine the clause in order to determine its validity .3 Accordingly, we conclude that the Respondent Local 78 violated Section 8 (b) (2) and 8 (b) (1) (A) of the Act by causing the Re- spondent Employers to discriminate against employees Brubaker, Papangellin, Horton, Brookover, Beatrice and Christine Gordon, Sims, Kimbriel, Thurlnan, and Higuera in violation of Section 8 (a) (3), and that Respondent Christensen with respect to Brubaker and Papangellin, Respondent Stolich with respect to Horton, Respondent Englund with respect to Brookover, Respondent Massera with respect to Beatrice and Christine Gordon, Respondent Crosetti with respect to Sims, Respondent Independent with respect to Kimbriel, Respon- dent Growers with respect to Thurman, and Respondent Nutting with respect to Higuera, violated Section 8 (a) (3) and 8 (a) (1) of the Act. The Remedy We have found, as did the Trial Examiner, that Respondent Em- ployers Christensen, Stolich, and Englund discriminated against, respectively, Brubaker and Papangellin, Horton, and Brookover, and that the Respondent Local 78 caused these Respondent Employers to discriminate against them. Therefore, as recommended by the Trial Examiner, we shall order the Respondent Employers to offer these employees immediate and full reinstatement to their former or substantially equivalent positions without prejudice to their seniority or other rights and privileges. We shall also order, as recommended by the Trial Examiner, that the Respondent Local 78, together with Respondent Christensen in the cases of Brubaker and Papangellin, Respondent Stolich in the case of Horton, and Respondent Englund in the case of Brookover, jointly and severally make whole these employees for the loss of pay suffered by reason of the discrimination against them, in the manner described in the section of the Intermediate Report entitled "The Remedy." The Respondent Local 78 may terminate its liability for further ac- crual of back pay by notifying the respective Employers that it has 1 The clause gives employees "30 days after commencing work " to apply for membership, but does not give any employee who was already working 30 days from the date of the union-security provision . In other words, employees who had commenced work before the execution of the contract were not accorded the required 30-day period. 2 Green Bay Drop Forge Co., 95 NLRB 399. Cf. Charles A Krause Mill-mg Co, 97 NLRB 5'S Green Bay Drop Forge Co., supra. AL MASSERA, INC., ET AL. 715 no objection to the reinstatement of the employee involved, and it shall not thereafter be liable for any back pay accruing after 5 days from the giving of such.notice.4 Unlike the Trial Examiner, we have found that Respondent Em- ployers Massera, Crosetti, Independent, Growers, and Nutting dis- criminated against, respectively, employees Beatrice and Christine Gordon, Sims, Kimbriel, Thurman, and Higuera, and that 'the Re- spondent Local 78 caused these Respondent Employers to discriminate against them. We shall, accordingly, order the Respondent Local 78 and the Respondent Employers to take certain affirmative action, in the manner prescribed above with respect to employees Brubaker, Papangellin, Horton, and Brookover, except that, in accordance with our usual practice,5 the period from the date of the Intermediate Report to the date of the Decision and Order herein is to be excluded in computing the amount of back pay awarded to Beatrice and Christine Gordon, Sims, Kimbriel, Thurman, and Higuera. Order Upon the entire record in the case, and pursuant to Section 10 (c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that : 1. Respondents Walter M. Christensen, Harold S. Christensen, and Andrew H. Christensen, Jr., copartners, d/b/a Christensen Bros. ; Peter A. Stolich, an individual d/b/a Peter A. Stolich Co.; R. T. Englund, an individual, d/b/a R. T. Englund Co.; Al Massera, Inc. ; J. J. Crosetti and Warren E. Scarborough, copartners, d/b/a J. J. Crosetti Co.; E. J. Russell, an individual, d/b/a Independent Growers Co.; H. E. Crean, an individual, d/b/a Growers Produce Dispatch; and K. R. Nutting, an individual, d/b/a K. R. Nutting Co., and their officers, agents, successors, and assigns, shall : 1. Cease and desist from : (a) Encouraging membership in Fresh Fruit & Vegetable Workers' Local No. 78, or in any other labor organization, by discharging or refusing to reinstate any of their employees. (b) In like or related manner interfering with, restraining, or coercing their employees in the exercise of the rights guaranteed in Section 7 of the Act, except to the extent permitted by Section 8 (a) (3) of the Act. 2. Take the following affirmative action, which the Board finds will effectuate the policies of the Act : (a) Offer immediate and full reinstatement to his former or a sub- stantially equivalent position without prejudice to his senority or other ' Psnkerton's National Detective Agency, Inc., 90 NLRB 205. 5 Green Bay Drop Forge Co , supra. 716 DECISIONS OF NATIONAL LABOR RELATIONS BOARD rights and privileges to, and make whole in the manner described in the section herein entitled "The Remedy," in the case of Christensen Bros., Velma Brubaker and Virginia Papangellin;' in the case of R. T. Englund, Louise Brookover; in the case of Peter A. Stolich, Clar- ence M. Horton; in the case of Al Massera, Inc., Beatrice and Christine Gordon ; in the case of J. J. Crosetti Co., Margaret Sims ; in the case of Independent Growers Co., Floyd Kimbriel; in the case of Growers Produce Dispatch, Grace Thurman; and in the case of K. R. Nutting Co., Loretta Higuera. (b) Upon request, make available to the National Labor Relations Rop,rd, or its agents, for examination and copying, all payroll records, social security payment records, time cards, personnel records and re- ports and all other records necessary,for a determination of the a,moupt:: of back pay due under the terms of this Order. (c) E,ich post at its plant in Salinas, California, copies of the ap- propriate notice attached hereto as an appendix .6 Copies of such notice, to be furnished by the Regional Director for the Twentieth Region, shall, after being duly signed by an authorized representative, lie posted immediately upon receipt thereof, and maintained for sixty (60) consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken to insure that such notices are not altered, defaced, or covered by any other material. II. Respondent Fresh Fruit & Vegetable Workers' Local No. 78, its officers, agents, representatives, successors, and assigns, shall: 1. Cease and desist from : (a) Causing or attempting to cause Christensen Bros., R. T. Eng- lund, Peter A. Stolich, Al Massera, Inc., J. J. Crosetti Co., Independ- ent Growers Co., Growers Produce Dispatch, and K. R. Nutting Co., .their officers, agents, successors, or assigns, to discharge or otherwise discriminate against their employees in violation of Section 8 (a) (3) of the Act. (b) In any like or related manner restraining or coercing employees of the above-named Employers in the exercise of the rights guaranteed in Section 7 of the Act, except to the extent permitted by Section 8 (a) (3) of the Act. 2. Take the following affirmative action, which the Board finds will effectuate the policies of the Act : (a) Notify Respondent Employers Christensen Bros., R. T. Eng- lund, Peter A. Stolich, Al Massera, Inc., J. J. Crosetti Co., Independ- ent Growers Co., Growers Produce Dispatch, and K. R. Nutting Co., that it withdraws its objection to the employment respectively of d In the event this Order is enforced by decree of a United States Court of Appeals, there shall be inserted before the words "A Decision and Order" in each notice the words "A Decree of the United States Court of Appeals Enforcing." AL MASSERA, INC'., ET AL. 717 Velma Brubaker and Virginia Papangellin, Louise Brookover, Clar- ence M. Horton, Beatrice and Christine Gordon, Margaret Sims, Floyd Kimbriel, Grace Thurman, and Loretta Higuera. (b) Notify each of the above-named employees in writing that it has withdrawn its objections to his employment with his employer. (c) Make whole, in the manner described in the section herein en- titled "The Remedy," Velma Brubaker, Virginia Papangellin, Louise Brookover, Clarence M. Horton, Beatrice and Christine Gordon, Mar- garet Sims, Floyd Kimbriel, Grace Thurman, and Loretta Higuera. (d) Post at its branch or business offices in the Salinas-Watson- ville-Hollister area in conspicuous places, including all places where notices to members are customarily posted, copies of the appropriate notice attached hereto.7 Copies of said notice, to be furnished by the Regional Director for the Twentieth Region, shall, after being duly signed by a representative of the Respondent Local 78, be posted by it immediately upon receipt thereof, and maintained for sixty (60) days thereafter. Reasonable steps shall be taken to insure that such notices are not altered, defaced, or covered by any other material. (e) Mail to the Regional Director for the Twentieth Region signed copies of the notice for posting, the Respondent Employers willing, at their places of business where notices to employees are customarily posted. III. Each Respondent herein shall notify the Regional Director for the Twentieth Region, in writing, within ten (10) days from the date of this Order, what steps it has taken to comply herewith. MEMBER STYLES took no part in the consideration of the above Decision and Order. Appendix NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify you that : WE WILL NOT encourage membership in FRESH FRUIT & VEG- ETABLE WORKElls' LOCAL No. 78 or in any other labor organization of our employees by discriminating against our employees in any manner in regard to their hire and tenure of employment, except to the extent permitted by Section 8 (a) (3) of the Act. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of rights guar- anteed in Section 7 of the Act. WE WILL offer to LoulsE BROOKOVER immediate and full rein- statement to her former or substantially equivalent position '+ See footnote 6. 718 DECISIONS OF NATIONAL LABOR RELATIONS BOARD - without prejudice to her seniority or any other rights and priv- ileges previously enjoyed, and make her whole for any loss of pay suffered as a result of the discrimination against her. R. T. ENGLUND CO., Employer. Dated -------------------- - By ---------------------- (Title) This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. Appendix NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify you that : WE WILL NOT encourage membership in FRESH FRUIT & VEGE- TABLE WORKERS' LOCAL No. 78 or in any other labor organization of our employees by discriminating against our employees in any manner in regard to their hire and tenure of employment, except to the extent permitted by Section 8 (a) (3) of the Act. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of rights guaran- teed in Section 7 of the Act, WE WILL offer to CLARENCE M. HORTON immediate and full reinstatement to his former or substantially equivalent position without prejudice to his seniority or any other rights and privi- leges previously enjoyed,- and make him whole for any loss of pay suffered as a result of the discrimination against him. PETER A. STOLICH Co., Employer. Dated -------------------- By ---------------------- (Title) This notice must remain posted for 60 days from the date thereof, and must not be altered, defaced, or covered by any other material. Appendix NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify you that : WE WILL NOT encourage membership in FRESH FRUIT & VEGE- TABLE WORKERS' LOCAL No. 78 or in any other labor organization AL MASSERA, INC., ET AL. 719 of our employees by discriminating against our employees in any manner in regard to their hire and tenure of employment, except to the extent permitted by Section 8 (a) (3) of the Act. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of rights guaran- teed in Section 7 of the Act. WE WILL offer to BEATRICE AND CHRISTINE GORDON immediate and full reinstatement to their former or substantially equivalent positions without prejudice to their seniority or any other rights and privileges previously enjoyed, and make them whole for any loss of pay suffered as a result of the descrimination against them. AL MASSERA, INC., Employer. Dated -------------------- By ---------------------- (Title) This notice must remain posted for 60 days from the date thereof, and must not be altered, defaced, or covered by any other material. Appendix NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify you that : WE WILL NOT encourage membership in FRESH FRIIIT & VEGETABLE WORKERS' LOCAL No. 78 or in any other labor organiza- tion of our employees by discriminating against our employees in any manner in regard to their hire and tenure of employment, except to the extent permitted by Section 8 (a) (3) of the Act. WE WILL NOT in any like or related manner interfere with, re- strain, or coerce our employees in the exercise of rights guaranteed in Section 7 of the Act. WE WILL offer to MARGARET Sims immediate and full reinstate- ment to her former or substantially equivalent position without prejudice to her seniority or any other rights and privileges pre- viously enjoyed, and make her whole for any loss of pay suffered as a result of the discrimination against her. J. J. CROSETTI CO., Employer. Dated -------------------- By ---------------------- (Title) This notice must remain posted for 60 days from the date hereof, or and must not be altered, defaced, covered by any other material. 720 DECISIONS 'OF NATIONAL LABOR RELATIONS BOARD Appendix NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify you that : AVE WILL NOT encourage membership in FRESH FRUIT & VEGE- TABLE WORKERS' LOCAL No. 78 or in any other labor organization of our employees by discriminating against our employees in any manner in regard to their hire and tenure of employment, except to the extent permitted by Section 8 (a) (3) of the Act. WE WILL NOT in any like or related manner interfere with, re- strain, or coerce our employees in the exercise of rights guaranteed in Section 7 of the Act. WE WILL offer to FLOYD KmniRIEL immediate and full reinstate- ment to his former or-substantially equivalent position without prejudice to his seniority or any other rights and privileges pre- viously enjoyed, and make him whole for any loss of pay suffered as a result of the discrimination against him. INDEPENDENT GROWERS CO., Employer. Dated -------------------- By ---------------------- (Title) This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. 'Appendix NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board, and in orders to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify you that : WE WILL NOT encourage membership in FRESH FRUIT & VEGE- TABLE WORKERS' LOCAL No. 78 or in any other labor organization of our employees by discriminating against our employees in any manner in regard to their hire and tenure of employment, except to the extent permitted by Section 8 (a) (3) of the Act. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of rights guaran- teed in Section 7 of the Act. WE WILL offer to GRACE THURMAN immediate and full reinstate- ment to her former or substantially equivalent position without prejudice to her seniority or any other rights and privileges AL MASSERA, INC., ET AL. 721 previously enjoyed, and make her whole for any loss of pay suf- fered as a result of the discrimination against her. GROWERS PRODUCE DISPATCH, Employer. Dated -- ------------------ By ---------------------- (Title) This notice must remain posted for 60 days from the date hereof, and must not be altered , defaced, or covered by any other material. Appendix NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify you that : WE WILL NOT encourage membership in FRESH FRUIT & VEGE- TABLE WORKERS' LOCAL No. 78 or in any other labor organization of our employees by discriminating against our employees in any manner in regard to their hire and tenure of employment, except to the extent permitted by Section 8 (a) (3) of the Act. WE WILL NOT in any like or related manner interfere with, re- strain, or coerce our employees in the exercise of rights guaranteed in Section 7 of the Act. WE WILL offer to LORETTA HIGUERA immediate and full rein- statement to her former or substantially equivalent position with- out prejudice to her seniority or any other rights and privileges previously enjoyed, and make her whole for any loss of pay suf- fered as a result of the discrimination against her. K. R. NUTTING Co., Employer. Dated -------------------- By ---------------------- (Title) This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. Appendix NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify you that : WE WILL NOT encourage membership in FRESH FRUIT & VEGE- TABLE WORKERS' LOCAL No. 78 or in any other labor organization 722 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of our employees by discriminating against our employees in any manner in regard to their hire and tenure of employment, except to the extent permitted by Section 8 (a) (3) of the Act. WE WILL NOT in any like or related manner interfere with, re- strain, or coerce our employees in the exercise of rights guaranteed in Section 7 of the Act. WE WILL offer to VELMA BRUBAKER and VIRGINIA PAPANGELLIN immediate and full reinstatement to their former or substan- tially equivalent positions without prejudice to their seniority or any other rights and privileges previously enjoyed, and make them whole for any loss of pay suffered as a result of the discrimi- nation against them. CHRISTENSEN BROS., Employer. 'Dated-------------------- By ------------------------ ( Title) This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. Appendix NOTICE TO ALL MEMBERS OF FRESH FRUIT & VEGETABLE WORKERS' LOCAL No. 78 AND TO ALL EMPLOYEES OF CHRISTENSEN BROS., PETER A. STOLICH CO., R. T. ENGLUND CO., AL MASSERA, INC., J. J. CROSETTI CO., INDEPENDENT GROWERS Co., GROWERS PRODUCE DISPATCH,. K. R. NUTTING Co. Pursuant to a Decision and Order of the National Labor Relations. Board, and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify you that WE WILL NOT cause or attempt to cause CHRISTENSEN BROS., PETER A. STOLICH Co., R. T. ENGLUND Co., AL MASSERA, INC., J. J. CROSETTI CO., INDEPENDENT GROWERS CO., GROWERS PRODUCE DIS- PATCH, and K. R. NUTTING Co., their officers, agents, successors, or assigns, to discharge any employees or otherwise discriminate, against their employees in violation of Section 8 (a) (3) of the Act. WE WILL NOT restrain or coerce employees of the said companies, their successors or assigns , in the exercise of rights guaranteed in Section 7 of the Act, except to the extent that such rights may be affected by an agreement requiring membership in a labor or- ganization as a condition of employment , as authorized by Section 8 (a) (3) of the Act. _ WE WILL make VELMA BRUBAKER, VIRGINIA PAPANGELLII, LOUISE BROOKOVER , CLARENCE M. MORTON , BEATRICE and CHRIS- AL MASSERA, INC., ET AL. 723 TINE GORDON, MARGARET SIMS, FLOYD KIMBRIEL, GRACE THURMAN, and LORETrA HIGUERA whole for any loss 'of pay they may have suiTered because of the discrimination against them. FRESH FRUIT & VEGETABLE WORKERS' LOCAL No. 78, Labor Organization. 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. Intermediate Report and Recommended Order Upon a charge filed by Loretta Higuera against K. R. Nutting Co., in Case No. 20-CA-496, upon charges filed by Local Industrial Union No. 78, CIO, herein called the CIO against the other Employer Respondents named in the caption in Cases Nos. 20-CA-436, 456, 461, 467, 490, 491, and 495, and against Fresh Fruit & Vegetable Workers' Local No. 78; herein called Local 78, in Cases Nos. 20-CB-150 and 158, and upon a charge filed by Grower-Shipper Vegetable Asso- ciation of Central California, herein called the Association, against Local 78 in Case No. 20-CB-161, the General Counsel of the National Labor Relations Board caused the cases to be consolidated and his complaint to be issued on or about November 24, 1950, against the Respondent Employers and Local 78, alleging violations of Section 8 (a) (1) and (3) and 8 (b) (1) (A) and 8 (b) (2) of the National Labor Relations Act. Copies of the complaint, the order of consolidation, and notice of hearing were duly served upon the Employer Respondents, Local 78, the CIO, Higuera, and the Association. With respect to unfair labor practices, the complaint alleged, in substance, that on various dates between May 23 and August 14, 1950, Local 78 attempted to cause and did cause the Respondent Employers to discharge employees because such employees were not members in good standing of Local 78, that on various dates from May 29 to August 18, 1950, the Respondent Employers acceded to the requests for discharges made by Local 78 and that on or about July 10, 1950, Respondent K. R. Nutting refused to reemploy Loretta Higuera because she was not a member in good standing of Local 78. The answer of the Respondent Employers, verified December 15, 1950, admits certain of the jurisdictional allegations in the complaint, asserts that certain of the individuals concerning whom an allegation of discriminatory discharge is made in the complaint, were, in fact, laid off for lack of work or voluntarily quit. With respect to other discharges, the answer asserts that they were made pursuant to a valid agreement existing between the Employers and Local 78. Local 78 also filed an answer, adopting the defenses offered by the Employers. Upon ,due notice, a hearing was held in Salinas, California, on February 15, 16, and 20, 1951, and in San Francisco, California, on April 10, 1951, before the undersigned Trial Examiner, The General Counsel, the Employer Respondents, and the CIO were represented by counsel, participated in the hearing and were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing on the issues. On May 14 a motion to reopen the record (joined in by all parties) to receive a stipulation relating to the period 1 Counsel for Local 78 appeared briefly at the opening of the hearing to announce that Local 78 would not participate in any way in this proceeding and then withdrew. 724 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of employment of Beatrice and Christine Gordon at Massera was submitted by counsel for the Employer Respondents. The motion is hereby granted and the stipulation is received in evidence as Employer Respondent's Exhibit No. 23. The General Counsel took the opportunity, afforded all parties, to argue orally upon the record. A brief has been received from counsel for the! Employer Respondents. Upon the entire record in the case and from my observation of the witnesses, I make the following : FINDINGS OF FACT I. THE BUSINESS OF THE EMPLOYER RESPONDENTS The Respondent Employers operate packing sheds in the Salinas-Watsonville- Hollister area in California, where they are engaged in the packing and shipping of fresh produce, principally lettuce. Location and annual out-of-State ship- ments of produce are indicated in tabular form below : Name of employer Location Herein called Annual out- of-State shipments (in excess of) Walter M. Christensen, Harold S. Salinas------- Christensen__ _ $1,000,000 Christensen, and Andrew H. Christensen, Jr., copartners, d/b/a Christensen Bros. J. J. Crosetti and Warren E. atsonville--- rosetti ------ 00, 000 Scarborough, copartners, d/b/a J. J. Crosetti Co. R. T. Englund, an individual, d/b/a Salinas ------- Englund --_ _ _ _ 150, 000 R. T. Englund Co. H. E. Crean, an individual, d/b/a Salinas------- Growers------ 500, 000 Growers Produce Dispatch. E. J. Russell, an individual, d/b/a Salinas-______ Independent_ 50, 000 Independent Growers Co. Al Massera, Inc., a California Watsonville___ Massera______ 200, 000 Corporation. K. R. Nutting, an individual, d/b/a Salinas------- Nutting------ 1,000,000 K. R. Nutting Co. Peter A. Stolich, an individual, Salinas -_ _ _ _ _ _ Stolich_______ 1,000,000 d/b/a Peter A. Stolich Co. II. THE RESPONDENT LABOR ORGANIZATION Fresh Fruit & Vegetable Workers' Local No. 78, Distributive Processing and Office Workers of America (formerly Food, Tobacco, Agricultural & Allied Workers Union) is a labor organization admitting to membership employees of the Respondent Employers. III. THE UNFAIR LABOR PRACTICES A. The background Grower-Shipper Vegetable Association of Central California is a nonprofit corporation existing in part at least for the purpose of handling labor rela- tions for its members. All of the Employer Respondents parties to this pro- ceeding are members of the Association. In 1947, 1948, 1949, and 1950, the Association, acting on behalf of its members, entered into collective bargain- ing agreements with Local 78. On November 10, 1949, following the conduct of an election, Local' 78 was certified by the Regional Director for the Board's Twentieth Region as having been authorized to enter into a union-shop agree- AL MASSERA, INC., ET AL. 725 ment with the Respondent Employers. Negotiations followed for a 1950 contract which findily was signed by Local 78 and by the Association on behalf of its ,members on April 8, 1950. Paragraph 2 of this agreement provides : UNION SECURITY 2. If any person who is not a member of the union be employed, such person shall, within 30 days after commencing work for Company, make application to become a member of the union, and union agrees that it will not discriminate against such applicant ; an employee to whom mem- bership is made available on the same terms and conditions generally ap- plicable to other union members and who fails to become a member of the union, or whose membership in the union is terminated because of failure to tender the periodic dues and initiation fees uniformly required by union, shall, upon written request by the union to the company, be discharged and shall not be re-employed until the union indicates in writing that he has paid such dues and initiation fee. The above condition of employment shall not apply to : (a) School students, under 18 years of age, working on a permit issued by the Superintendent of Schools, who do not desire to become members of the union. (b) Not to exceed 3 persons in employment at any one-time in each packing shed who are placed thereon as a part of an educational program. On April 3, 5 days before this agreement was signed, counsel for Local 78 wrote to the Association, saying in part : Heretofore, Local 78 FTA has demanded that certain employees be dis- charged pursuant to Section 2 '(the union shop provision) of the 1950 Packing Shed Agreement. In the course of the negotiations upon this demand, the employers and the Union have taken cognizance of the filing of petitions for investigation and certification of the collective bargaining representatives under Section 9c of the National Labor Relations Act as amended by a local industrial union of the CIO and of the further fact that the enforcement of the union shop clause in the face of a claim by a rival union might well disrupt the relations of the parties to the 1950 Packing Shed Agreement and cause interruptions of production. After full consideration of this problem, the union has decided not to press its demand for the enforcement of the union shop clause at any pack- ing shed covered by the 1950 Packing Shed Agreement, whether in the Imperial Valley, San Joaquin Valley or the Salinas-Watsonville-Hollister area until such time as the aforesaid petitions under Section 9c have been finally disposed of by the National Labor Relations Board ... . Jack E. Bias, manager of the Association, testified that when the 1950 agree- ment was signed, the parties agreed not to put the union-shop clause into effect until there was a disposition of the petitions. There is no evidence that the letter of April 3 or the agreement of April 8 was or was not given publicity among the employees of the Employer Respond- ents. In the belief that principals are ordinarily aware of the commitments and agreements made by their agents, I find that the employees of the Employer Respondents were aware of the terms of the collective bargaining agreement of April 8 and of the statement of counsel for Local 78, that no demand for the 986209-52-vol. 97-47 726 DECISIONS OF NATIONAL LABOR RELATIONS BOARD enforcement of the union-shop provision would be made immediately = I further. find that by virtue of this information employees of the Employer Respondents were aware that a collective bargaining agreement existed on and after April. 8, 1950, which required them within a period of 30 days of that date. or within 30 days of their employment with any one of the Employers party to the agree- ment to make application for membership in Local 78, and that they were also aware that for an indeterminate period no sanctions would be imposed upon them for failure to make such application. B. The discharges On May 21, 1950, the employees of_Massera refused to continue work because two of the crew, Beatrice and Christine Gordon, refused to pay dues to Local 78. Both had been employed by Massera on April 19. The crew was persuaded to return to work after 2 days of idleness, when at the direction of Local 78, Massera posted a notice at the plant reading : . . . Al Massera, Inc., is operating under a Union Shop Contract with Local 78 F. T. A. Any employee not in good standing with the Union by Monday, May 29, 1950, will be discharged ... . On the same day, Local 78 formally requested in writing that Beatrice Gordon and Christine Gordon be discharged for lack of good standing in Local 78. On May 29, not having offered dues to Local 78, both Gordons were discharged. -- ' On June 3, the Association mailed a notice to all its members with the request that it be prominently posted, reading: UNION SHOP 1. The Union Shop Provisions in the 1950 agreement have now become effective. 2. Employees will be required under the terms of the contract to pay periodic dues and initiation fees to Local 78 FTA. Local 78 FTA and Grower-Shipper Vegetable Association agree that June 26, 1950 is the first date upon which requests for discharges for failure to pay periodic dues and initiation fees will be acted upon by the Grower- Shipper Vegetable Association. I find that this notice was received by the Employer Respondents in due course of mail and that it was posted by each of them in such places as to come to the attention of the employees. Grace Thurman had worked as a trimmer for Growers for 3 years and re- turned to her employment with the opening of the 1950 season in April. She had been a member of Local 78 in 1948 and, she testified, was permitted to withdraw from that organization in July of that year. The bylaws of Local 78 state that a withdrawal stamp may be placed in the membership book of any member whose work takes him outside the jurisdiction of Local 78, but upon returning to work within such jurisdiction a member must present his member- ship book to the shop steward and resume the payment of dues. In 1949, Thurman again worked for Growers, but did not pay dues to Local 78. She made no tender of dues before July 1, 1950, although she had by that date worked more than 2 months in the industry during that season. On July 1,' 2I find this to be the purpose and effect of the agreement attending the signing of the contract. 3 Thurman and Carrie Lee Powell both testified that the incidents about to he related took place on June 26. Considering the testimony of Carl Persson and Michael Shapiro and the documentary evidence beating on the date, I conclude and find-that Thurman and Powell were mistaken, that the date to which their testimony refers is July 1 AL MASSERA, INC., ET AL. 727 a representative of Local 78, Michael Shapiro, told Thurman that he had in his possession a letter from Local 78 requesting that she be discharged. Learn- ing from her foreman, Carl Persson, that such a letter had been served upon her employer, Thurman and Carrie Lee Powell, another employee who had re- ceived similar advice with respect to her standing with Local 78, went to the office of that organization. Thurman there offered to pay her dues but was told that since a letter requesting her discharge had been sent to her employer, her dues were not now acceptable. On the following day, Thurman told her em-' ployer of her experience. A' few days later, Thurman again attempted to pay her dues and again the offer was rejected. In early August, a notice was posted in the plants of the Employers, reading : Any employee who is not in good standing with the Union by 5 p. in. Satur- day, August 12, 1950 by tender of third quarter dues, or in the case of non- member employees for 30 days, initiation fees and dues owing on com- pletion of 30 days' employment and thereafter, will be immediately dis-. charged on request of the Union. Local 78 assessed dues in the amount of $6 for each calendar quarter and required the payment of a $25 initiation fee and quarterly dues from each new member. On August 11, Thurman again went to Local 78's office, where, according to her testimony, she offered to pay $12, representing dues for the second and third quarters of 1950 and promised to pay the balance on August 15. Her offer was refused. Shapiro testified that he told Thurman on August 10 that she must pay her delinquent dues and that she replied that she would pay no dues to "a commre outfit." On August 11, according to Shapiro, Thurman came to the office and offered to pay $6. When Shapiro told her that she owed $37,° Thurman an- swered, according to Shapiro, that Local 78 could take the $6 or leave it. On August 14, Local 78 served a written demand upon Growers for the discharge of Thurman, asserting that she had failed to make application to become a member and on August 11 had attempted to pay $6, but had refused to pay the initiation fees and second quarter dues On August 18, Thurman was informed by her foreman that she was discharged Velma Brubaker and Virginia Papangelltn, worked for Christensen. Brubaker had been a member of Local 78 and was given a withdrawal in 1948. Papangel- lin had never joined that organization. Neither offered- to pay dues in 1950 except in the circumstances now to be related ' On July 8, according to the credited and uncontradicted testimony of Brubaker, she filled out an appli- cation card and gave it to Shapiro. That afternoon she went to the office of Local 78 to complete the transaction but learned there that Shapiro had not turned in her card and that she should return on Monday, July 10. Brubaker did so but again was unable to find Shapiro. On the next day, her foreman, Robert Wasson, told her that a letter from Local 78 had been received demanding her discharge and that, in consequence, she was no longer permitted to work. Bru- baker returned to the office of the Local and on this occasion spoke with Shapiro who told her, she testified credibly, that he would have to consult her shop steward about her but that everything would be "straightened out." Brubaker returned to work the next day and, at the suggestion of her foreman, filled out another application card which the shop steward refused to 'validate. When Brubaker appeared for work on July 13 the other employees, at the instruction of the shop steward, refused to work. As a result Brubaker was called to the Dues for two quarters plus the initiation fee of $25. 728 DECISIONS OF' NATIONAL' LABOR • RELATIONS BOARD plant office where she talked to Jack Bias who told her that he would try to "straighten it out" and would let her know what happened. Later, Bias told, Brubaker that he could not reach agreement with Local 78. She last worked for Christensen on July 11 or 12. Also on July 8, Papangellin received an application card from Frank Brown, president of Local 78. When she offered Brown $6 as a dues payment, Brown informed her that she was required to pay a total of $31. Papangellin told her foreman, Wasson , of the incident and he advised her to borrow the money from Christensen and to pay the amount due. She arranged to do so but before she had made any further offer she learned on July 11 that Local 78 had demanded her discharge and Wasson put another in her work place. Papangellin then went to the office of the Local and offered the full initiation fee and dues to President Brown, Brown refused the offer saying that her case must first be investigated . On July 13 she informed Wasson that she had twice unsuccess- fully attempted to pay dues and, upon his advice, made another attempt that day, apparently with the same result. She appeared for work the next morning' but, as in the case of Brubaker , the employees following the direction of the shop steward refused to work with her on the job. Bias appeared, told her that her case would be the subject of a conference with Local 78 and that she would be advised of the result. She never heard again from him in connection with her situation. Local 78 wrote two letters on July 10 to Christensen demanding in one the discharge of Brubaker and in the other , that of Papangellin . After reciting that the membership of Brubaker had been terminated for nonpayment of dues and that Papangellin had failed to make application for membership , there was added to each letter as a further ground for discharge, the following : They have taken themselves out of this union by joining and participating actively on the behalf of a rival labor organization seeking the destruction of this union. Margaret Sims was employed by Crosetti during the packing season continu- ously from 1943. Her employment in 1950 began in April. Sims became a member of Local 78 but took a withdrawal from that organization in 1948, at a time when her dues were paid to the end of that year. Sims paid no dues in 1949 and made no tender of dues in 1950 except as hereinafter related. Sims testified that on July 1 the shop steward announced that dues must be paid , so on that day she went to the office of Local 78 and handed her membership book along with $6 to the cashier. She was then informed , Sims testified , that she must pay either all back dues or rejoin Local 78. Sims replied that under the Act she could not be required to pay more than the,$6. Her offer was refused. On July 3, her foreman, Don Fisher, called her off her job and told her to speak to the office manager, Dobler , regarding her delinquency with Local 78. Dobler told Sims, according to the credited and uncontradicted testimony of the latter, that he was willing that she work , but that the shop steward, Westfall, objected. At Dobler's request, Sims remained in the office until the arrival of John Armstrong, a representative of the Association . Sims told Armstrong of her experiences and that she had offered $6 to Local 78, although their demand was for $31. There was some slight dispute concerning what passed between Arm- strong and Sims, but a consideration of the testimony of both clearly establishes that Sims was not permitted to go back to work and I find that her request that she be given her check did not, in the circumstances, constitute a quitting. On the contrary, I find that Sims was not permitted to work because she had not satisfied the dues and initiation fee demand of Local 78. Floyd Kimbriel began employment in the industry at the Independent Growers Co., herein called Independent, on April 20, 1950. On July 1, his foreman, John AL MASSERA, INC., ET AL. 729 Spence, told him that Local 78 had requested his discharge and that Kimbriel must pay his dues to that organization by Monday, July 3. On the latter date, Kimbriel went to Local 78's office and offered an application-for-membership form, the initiation fee, and the quarterly dues. The cashier informed him that his offer could not be accepted, because his application was not countersigned by the shop steward. Kimbriel returned to the packing shed and asked the shop steward, Steel, for the necessary signature. Steel at first refused, but after a telephone conversation with Edna Cooney, secretary-treasurer of the organiza- tion, placed his signature on Kimbriel's application. Kimbriel returned to the office of Local 78, again offered the application and fees, and again was told that his offer was not acceptable ; that his case would have to go before the executive council of the Local. On July 7, Business Agent Jess Phillips asked Kimbriel if he would "straighten out" with Local 78. Kimbriel said that he had tried to do so and offered his application and $31 to Phillips. Phillips said that Kimbriel would have to go to the office of Local 78 and when Kimbriel refused to do so a rather heated argument ensued, and Phillips left. Later in the day, John Armstroifg of the Association persuaded Kimbriel to make a further offer to Local 78. Kimbriel did so and again handed his application and money to Cooney who again refused it. Kimbriel, remarking that this made the fourth time he had offered to become a member of Local 78 and had tendered the dues and initiation fees, said that he would not return again. Kimbriel worked July 8, but on that evening Foreman Spence telephoned him not to return to work on the 9th. Dis- regarding these instructions, Kimbriel did report at the packing shed the follow- ing morning and in response to Spence's questions answered that he expected to go to work.' Spence replied that he could not do so. Kimbriel then got his check and left. I find that Kimbriel was discharged on July 9 at the request of Local 78.5 Louise Brookover withdrew from Local 78 in July 1948 and paid no dues in 1949. In 1950 she worked for Englund e Although aware of the notice that dues to Local 78 must be paid on or before June 26 in order to avoid discharge, Brook- over made no attempt to do so. On or about August 10 or 11, Edna Cooney inspected the dues books of workers at the Englund shed and told Brookover that she would have to pay her dues by August 12. When Brookover said that she had not been making much money, Cooney assertedly replied that a partial pay- ment might be accepted from those who displayed a proper attitude. On Satur- day, August 12, Tom Leuchars, Brookover's foreman, told her to go to the office of Local 78 and offer them what she could. Brookover went to the office and showed her Local 78 dues book to Business Agent Charles Stegner, who told her that she owed $36 in back dues and that it would be cheaper for her to pay the initiation fee and current dues, a total of $31. Brookover answered that she did not have sufficient money and offered to make a partial payment, which Stegner refused. According to Brookover, Stegner told her to go back to work and that some one would come in next week to make some sort of arrangement with her. On Monday, August 14, Brookover returned to work and told Foreman Leuchars what had happened. On Tuesday, Leuchars called her to his office and showed her a letter from Local 78, reading : Re : Louise Brookover, Trimmer In accordance with the contract between this union and your association, demand is hereby made for the discharge of the persons listed above on the following grounds: (1) She has failed to make application to become a member of the union. The assertion in the Employer Respondents ' answer that Kimbriel quit Is not sup- ported by evidence. " The date of her employment does not appear. It was however not later than June. 730 DECISIONS OF NATIONAL LABOR RELATIONS BOARD She came to the union hall Saturday, August 12, 1950, and attempted to pay $6.00 but refused to pay initiation fee and second quarter duet. After arguing for sometime, she said she would make a payment of $6.00 for the third quarter and pay a quarter at a time on the balance ; which is not acceptable by the union. (2) She.has taken herself out of this union by joining and participating actively on the behalf of a rival labor organization seeking the destruction of this union. Brookover was removed from her work by Leuchars and later in the day, sup- plied with sufficient funds, again visited Local 78 and offered payment to Edna Cooney. Cooney refused the offer and Michael Shapiro remarked, according to Brookover, that he did not want any part of her or her money. Loretta Higuera began work for the K. R. Nutting Co., herein called Nutting, in May 1950 as a lettuce trimmer. On July 6, Michael Shapiro told her that Local 78 had requested her dismissal. That afternoon Higuera asked her foreman for permission to be absent on July 7 and when her request was refused, stayed away from work on that day. When she returned to the packing shed on July 8, her foreman told her that she had quit and refused to let her work. On July 10, she was called to the packing shed where Foreman Baggett told her that she could return to work if she made her peace with Local 78. Higuera went to Local 78's office and told someone apparently in charge there that she was ready to pay up so that she could return to work. Higuera was told that inasmuch as a letter requesting her discharge had been served on Nutting, she would have to see Shapii o about the matter and when Higuera's efforts to see Shapiro were fruit- less, she discussed it with Cooney on July 17. Cooney refused to accept Higuera's offer of dues. Higuera admitted that she knew that a deadline for payment of dues had been set for June 26. Clarence Al. Horton began work in the industry at the packing shed of d'Arrigo Bros. on June 6, 1950, and a week later went to work for Peter A. Stolich Co., herein called Stolich.. d'Arrigo Bros., although not involved in this proceeding, was a party to the 1950 bargaining agreement with Local 78. On July 3 Horton's foreman, Clayton Alsberge, showed him a letter from Local 78, requesting the,discharge of "Charlie" Horton for lack of good stand- ing. Horton pointed out to Alsberge that his name was not Charlie. On July 5, Alsberge told Horton that he had 2 hours within which to pay his dues to Local 78. Horton went to the office of Local 78 and offered his dues to Shapiro. Shapiro refused the offer but told Horton to come back later in the day. Horton did so and his offer of $31 was accepted by Edna Cooney who also gave him an application-for-membership card which he later had the shop steward counter- sign. On July 22 Horton learned that he had been refused membership and on the same day received back the $31 he had paid to Local 78. Horton continued his employment without incident until August 24, when, having finished a run of carrots, Foreman Alsberge told him to work on lettuce the next day. On the following day, Alsberge showed Horton another letter from Local 78, stat- ing that Horton had failed to apply for membership and had made no offer of dues. In consequence, the letter continued, his discharge was demanded. Horton reminded Alsberge that he had paid initiation fee and dues to Local 78 and that he had shown a receipt for such payment to Alsberge. Horton was nonetheless discharged.' 7 The assertion in Employer Respondents' answer that Horton was laid off for lack of work is not supported by the evidence AL MASSERA, INC., ET AL. 731 C. Conclusions The first point which the General Counsel asserts is established by the evidence and which it is his contention destroys certain of the defenses based upon the union-shop provision in the 1950 contract , is that the provisions of that section did not become effective with respect to any of the Employer Respondents, except Massera, any earlier than June 3, 1950. The theory of this position is, that having agreed that no discharges would be requested or effected under the union-shop clause pending a contingency involving the 9 ( c) petition before the Regional Office of the Board at the time that the parties affixed their' sig- natures to the contract, the clause could not be given effect until the agreement to take no action under it had been terminated and that all employees had 30 days from that date within which to tender their dues or initiation fees or both to Local 78. The Employer Respondents assert that the letter of April 3 stating that no discharges would be sought under the union -shop clause pending the dis- position of the petitions, was a position taken by Local 78 alone and does not constitute an agreement in derogation of the terms of the contract . Hence, the Employer Respondents contend that the union-shop clause became effective on April 8, and as a result any employee who had worked for a period of 30 days for any of the Respondents could on or after May 8, 1950, be required to offer to become a member of Local 78 on penalty of dismissal. I find merit in the Em- ployer Respondents' contention. The fact that Local 78 had offered to forego enforcement of the union -shop clause for a period does not under the evidence in this record affect the substantive provisions of the contract . At most, the oral agreement was that Local 78 would not for a time demand discharges under the union-shop clause. Of course, it may be pointed out that the finding, which is hereby made, that the union -shop clause became effective on April 8, 1950, could lead to a highly inequitable result if, for example, on May 9, discharges were sought without notice that such action was contemplated. But that sit- uation is not to be found in any of the cases here at issue. As to the discharges of Beatrice and Christine Gordon on May 29, the General Counsel concedes that even under his theory of the case, the union-shop clause became effective at the Massera shed, by virtue of the posted announcement , on May 23. I find that the clause was effective at Massera , as well. as at the places of business of all the Employer Respondents, on April 8, and that the notice to employees of Massera on May 23 was warning that discharges would be sought of those who failed to comply with the membership conditions . As the two Gordons had already had an opportunity for more than 30 days to join Local 78 and were given an additional period of 6 days within which to accomplish this, I find no violation of the Act on the part of Massera in discharging them, or on the part of Local 78 in seeking that result. Both had more than the statutory period in order to make their offer to Local 78 and both had refused to do so. With respect to the remaining Employer Respondents, the employees of all were notified in early June that they had until June 26 to pay their dues and initiation fees, following which date their discharges might be sought. Grace Thurman first offered to pay dues on July 10. She had , by July 1, worked more than 30 days for Growers and her employer had been requested to discharge her. For some reason the discharge was not put into effect and on August 11, accepting her testimony , she offered to pay $12 and Local 78 demanded $25 Initiation fee in addition. The General Counsel's theory in the case of Thurman has an additional facet. First, he contends that Local 78 could not lawfully require any tender from Thurman before July 3. Hence her offer to pay dues in whatever amount on June 26, as she testified , or on July 1, as I have found, was made prior to the date when the Union could require any payment at all from 732 DECISIONS OF NATIONAL LABOR RELATIONS BOARD her. Additionally, the General Counsel contends , Thurman having been a mem- ber of Local 78 was entitled to be placed again in good standing by payment of the current quarterly dues which would amount, according to his theory, to $6. The demand by Local 78 that Thurman pay an initiation fee was, the General Counsel asserts, a scheme to force Thurman to pay dues for 1949, a year during which Local 78 had no union-shop agreement and a year during which there was no obligation on the part of Thurman to become or remain a member of Local 78. The Board has held in recent decisions' that a labor organization party to a valid union-shop contract provision may not force the payment of dues accruing during a period when such a provision was not in effect, by caus- ing or attempting to cause the discharge of such a delinquent member. I do not believe these decisions are in point in the case of Thurman . Essentially, Thurman sought to be treated by Local 78 in the same fashion as one who had never become delinquent in standing. While it is of course true that Local 78 could not lawfully have required Thurman to pay dues during the year 1949, it seems to me to be equally true that she could not require Local 78 to treat her in the same fashion as if she had done so. The bylaws of Local 78 require that a member working in the industry pay quarterly dues no later than the fifteenth day following the beginning of each quarter . Members who failed to do so are delinquent . This was the status of Thurman when she began work for Growers in April 1950. The evidence establishes that Local 78 adopted a policy in late June that delinquents such as Thurman should be offered an option in obtaining good-standing , either by paying the amount of their de- linquent dues or paying the initiation fee and current dues uniformly required from new applicants for membership. I do not understand how, in the case of Thurman, and others yet to be discussed, such a requirement runs afoul of the Act. To permit Thurman to attain good standing in Local 78 merely by offering the dues in the current quarter would be for the Board to prescribe the dues requirements for the Local and to accord to Thurman a status inconsistent with the constitution and bylaws of the Local . I am convinced and find that there was nothing unlawful in the Local's policy. Thurman, having elected to forfeit her good standing by failing to pay dues during 1949 cannot now reason- ably be heard to assert a right to good standing which only the payment of those dues would have secured to her . Local 78 says , in effect, if you do not choose to liquidate your delinquency , you may then consider yourself to be in the same situation as a nonmember and to pay an initiation fee and quarterly dues uniformly required from all such. Thus, Thurman, 30 days after her - employment in April, was obliged , as all others were, to offer her initiation fee and current quarterly dues to the Local or to risk a demand for her discharge. When such a demand was made on July 1, she had made no offer of any sort, and I find that the demand for her discharge by Local 78 on that date and the renewal of the demand on August 14 was authorized by the 1950 contract, that Thurman was not on either date a member in good standing of Local 78, that she was an employee to whom membership in Local 78 was made available on the same terms and conditions generally applicable to others, and that neither Local 78, by the demand for her discharge, nor Growers , by acceding to the demand, violated the Act. The case of Margaret Sims closely resembles that of Thurman. Sims had paid no dues in 1949 and made no tender of them in 1950 until more than 30 days after the effective date of the union-shop clause and more than 30 days 8 New York Shipbuilding Corporation, 89 NLRB 1446 ; General American Aerocoach, 90 NLRB 239; and Automobile, Aircraft & Agricultural Implement Workers, 010 (Timken- Detroit Axle Company), 92 NLRB 156. AL MASSERA, INC'., ET AL.' 733 after she began her 1950 employment at Crosseti's. Further, Sims offered to pay only the quarterly dues, assuming at the time, as did, Thurman, that she could not be required to do more. For the reasons given in the case of Thurman, I find that Sims was not entitled to attain good standing with Local 78 by offer- ing a quarter's dues and that Local 78 lawfully could require that she pay the initiation fee and quarterly dues payment uniformly required of nonmembers, that Local 78 did not violate the Act in demanding her discharge, and that Crosetti did not violate the Act by honoring the demand. The fact that Local 78 did not demand in writing that Sims be discharged, I find to be immaterial. It will be recalled that Floyd Kimbriel, on four occasions, the first of which took place on July 3, offered to pay the full initiation fee and quarterly dues to Local 78 and that the representatives of Local 78 displayed a lamentable confusion in acting upon this offer. Very clearly, Kimbriel was led to believe on several occasions that as soon as some technical requirement `was satisfied, his offer would be accepted. However, even though the conduct of Local 78 must have been exasperating to all those concerned, I do not believe that the evidence establishes a violation of the Act with respect to him. Kimbriel had until June 26 to make his offer to Local 78 and failed to do so. The rejection of his several offers after that date does not establish in any fashion that he was not given the same opportunity as others similarly situated to become a member of Local 78 and thus to protect his employment. There is evidence, which is believed, that Kimbriel incurred the enmity of Business Agent Jess Phillips. I suppose it is possible that Kimbriel's final offer of initiation fees and dues was rejected because of Phillip's anger, but I do not consider the evidence to pre- ponderate in favor of such a finding. I find that Kimbriel was discharged by Independent on July 9 on the request of Local 78 because he•had not made a timely offer to Local 78 of the initiation fee and dues uniformly required. The facts in the cases of Brubaker and Papangellin would except for one distinction seem to require the same disposition. The distinction is, however, vital-that activity in behalf of a rival labor organization was urged by Local 78 as a ground for dismissal. The record, except for the letter, is barren of evidence that they actually engaged in dual activities, but the truth of the Local's assertion is not material. The vice in its conduct is to be found in its attempt to cause Christensen to discharge these two workers upon an accusa- tion, however well- or ill-founded, that they had engaged in an activity which Section 7 of the Act protects. There is evidence that the letters sent to Christen- sen were form letters (they appear to be mimeographed) and that they were, perhaps, used indiscriminatorily whether or not the assertion of such activity was applicable in any given case. Again this would seem to be immaterial. The letters were intended to move Christensen to action, they demanded dis- charges, and they demanded them on a basis which would cause Christensen to violate Section 8 (a) (3) of the Act by complying. Section 8 (a) (3) of the Act provides that an employer may not justify a discharge on the basis of lack of membership in a labor organization under authority of a valid union-shop clause, "(A) if he has reasonable grounds for believing that such membership was not available to the employee on the same terms and conditions generally applicable to other members, or (B) if he has reasonable grounds for believing that membership was denied or terminated for reasons other than the failure of the employee to tender the periodic dues and the initiation fees uniformly required as a condition of acquiring or retaining membership." Here Christensen knew (through Wasson) that Brubaker and Papangellin had tendered dues to Local 78 and that the tenders had been refused. Without more Christensen could reasonably have believed (1) that the refusals were forth- 734 DECISIONS.OF NATIONAL LABOR RELATIONS BOARD coming because both offers were tardy and, (2) that both individuals knew that such tardiness risked their right to continued employment. But the letters of July 10 injected a new note and sought the discharges not alone on the lawful ground that neither individual had satisfied the initiation fee and dues require- ments of the Local in timely fashion, but also had engaged in an activity which neither the Local nor the employer had a right to inhibit by way of discharge.' All that Local 78 lawfully could require of Brubaker and Papangellin as a con- dition of continuing employment, was the payment of dues and initiation fees. Both remained free, if they so desired, to become active in behalf of another labor organization or to refuse to do so with respect to any such organization except for the financial obligation10 I find that Local 78 demanded the discharges of Brubaker and Papangellin for the.failure of each to satisfy the Local's dues and initiation fee requirements by offering the required amounts when they were due, but that the discharges were sought also "for reasons other" than such failure within the meaning of sub- section (B) of Section 8 (a) (3). I find that by causing Christensen to discharge Brubaker and Papangellin Local 78 caused Christensen to violate Section 8 (a) (3) of the Act and thereby violated Section 8 (b) (2) of the Act. By such con- duct, Local 78 restrained and coerced employees in the exercise of rights guaranteed in Section 7 of the Act and thereby violated Section 8 (b) (1) (A) of the Act. By discharging Brubaker and Papangellin on the demand of Local 78 as set forth in the letters of July 10, Christensen discouraged activity in behalf of any labor organization other than Local 78 and thereby violated Section 8 (a) (3) of the Act. By such conduct Christensen interfered with, restrained, and coerced its employees in the exercise of rights guaranteed in Section 7 of the Act and thereby violated Section 8 (a) (1) of the Act. Louise Brookover withdrew from Local 78 in 1948 and paid no dues in 1949 or 1950. On August 12, as has been related, she was told by a representative of the Local that she must pay either the accumulation of back dues, $36, or an initiation fee and current dues totaling $31. Her offer to make a partial pay- ment was refused. In its letter to Englund on August 14, the Local demanded her discharge, as in the case of Brubaker and Papangellin, upon the additional ground (unsupported in the record) that Brookover had been active in behalf of another labor organization. The obligation on the part of Brookover to pay the initiation fee and dues on the thirtieth day following her employment was absolute and the Local was under no duty to extend the time or to accept a partial payment from her if it desired not to do so.11 Partial payments were accepted from Lillie Williams, Betty O'Neal, and Lucille Stearns,` all employees at the Englund shed, but I know of no reason why a union may not make individual arrangements for dues payments so long as it refrains from demanding any discharge in that connection which would cause an employer to violate Section 8 (a) (3) of the Act. I do not believe that the record here establishes that Englund had reasonable ground to believe that the refusal of a partial payment from Brookover amounted to a term or condition not generally applicable to other employees in his shed. As in the cases of Brubaker and Papangellin, however, he was aware by the very language of the Local's demand for Brubaker's discharge that it was sought 9 Bias testified that he investigated these cases and concluded that neither Brubaker nor Papangellin had offered dues before their discharges were demanded Bias made no mention of the allegation concerning rival union activity to any representative of Local 78 In the course of his inquiry. io Union Starch & Refining Co. v. N. L. R. B., 186 F. 2d 1008 (C. A. 7). n Ferro Stamping and Manufacturing Co , 93 NLRB 1459. AL MASSERA, INC., ET AL. 735. not alone for nonpayment of dues, but for the additional reason that she had been active in behalf of another labor organization. Clearly, Local 78 had a lawful reason for seeking Brookover's discharge, but interwoven with it was another-and such another as would not permit her employer to justify the discrimination against her. In this situation, the burden was upon Local 78 to disentangle the legitimate from the other and to establish, if it could, that it was motivated in its action by the former. The burden has not been carried and I find that by demanding the discharge of Brookover, Local 78 caused Englund to discriminate against her in violation of Section 8 (a) (3) of the Act and that Local 78 thereby violated Section 8 (b) (2) of the Act. By the same conduct Local 78 restrained and coerced employees in the exercise of rights guaranteed.in Section 7 of the Act and thereby violated Section 8 (b) (1) (A) of the Act. I further find that by acceding to the demand that Brookover be discharged Englund discharged her knowing that among the reasons for the Local's demand was Brookover's alleged activity in behalf of a labor organization. By the discharge, therefore, Englund discouraged activity in behalf of such a rival and thereby violated Section 8 (a) (3) of the Act. By the same conduct, Englund interfered with, restrained, and coerced employees in the exercise of rights guaranteed in Section 7 of the Act and thereby violated Section 8 (a) (1) of the Act. When Local 78 made its demand on July 5, that Loretta Higuera be dismissed, she had been working for more than 30 days for Nutting, and had made no offer to pay her dues. I find that Local 78 was thereafter under no obligation to accept the offer of payment which'she made July 10 and July 17. As there was no unlawful demand on the part of the Union that Higuera be discharged, there is no basis for a finding that Nutting discriminated against her. Clarence Horton paid his initiation fee and quarterly dues to Local 78 on July 5 within 30 days of his eiployment in the industry. Of course, Local 78 was within its rights in refusing to accept him as a member and in returning the $31 which he had paid, but since Horton's tender was timely made and since it neces- sarily follows that Local 78's denial of membership to him was based on some reason other than the asserted one that he had failed to tender the initiation fees and dues uniformly required, thus Local 78 could not lawfully seek his discharge at any time during the effective term of the 1950 bargaining agreement. Horton had done all'that could be required of him under that contract. Thus, I find that by its demand on August 19 that Horton be discharged in violation of Section 8 (a) (3) of the Act, Local 78 violated Section 8 (b) (2) of the Act and by causing Horton's discharge on August 25, Local 78 coerced and' restrained Horton in the exercise of his rights under Section 7 of the Act and thereby vio- lated Section 8 (b) (1) (A) of the Act. Horton's employer, Stolich, was aware that Horton had tendered his dues on the thirtieth day of his employment and that his dues had then been accepted. When it acceded to the demand of Local 78 that Horton be discharged, Stolich knew, or with the information it had, should have known that the denial of membership to Horton was based upon a con- sideration other than failure to tender initiation fees and dues uniformly re- quired. Thus, Stolich may not justify its discharge of Horton and I find that discharge necessarily encouraged membership in a labor organization in violation of Section 8 (a) (3) of the Act. Further, by this discharge, Stolich interfered with, restrained, and coerced its employees in the exercise of their rights under Section 7 of the Act and thereby violated Section 8 (a) (1) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent Employers and Local 78, described in Section III, above, taken in connection with the activities of the Respondents described 736 DECISIONS OF, NATIONAL LABOR RELATIONS BOARD in Section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States and such of them as have been found to constitute unfair labor practices tend to lead to labor disputes burden- ing and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that Local 78 has engaged in certain unfair labor practices by causing Christensen, Stolich, and Englund to discharge Brubaker, Papangellin, Horton, and Brookover, and having found that Christensen, Stolich, and Englund engaged in certain unfair labor practices by acceding to the demands of Local 78, it will be recommended that each be required to cease and desist from such conduct and to take certain affirmative action designed to effectuate the policies of the Act. Having found that Local 78 caused the discharges of Brubaker, Papangellin, Brookover, and Horton, it will be recommended that it notify Christensen, Stolich, and Englund that it ndw withdraws its demand for such discharges. It will further be recommended that Christensen offer to Brubaker :ind Papangellin, Stolich to Horton, and Englund to Brookover reinstatement of each to his former or substantially equivalent position 12 without prejudice to seniority or other rights and privileges and that Local 78 participate with Christensen in the case of Brubaker and Papangellin, with Stolich in the case of Horton, and with Englund in the case of Brookover in leaking each of these em- ployees whole for any loss of pay suffered by reason of the discrimination against them, by payment to each of a sum of money *equal to the amount he normally would have earned as wages from the date of discharge to the date of offer of reinstatement, less his net earnings 13 during that period Loss of pay shall be determined by deducting from a sum equal to that which each would normally have earned for each quarterly period or portion thereof, his net earnings, if any, in other employment during that period. Earnings in one particular quar- ter shall have no effect upon the back-pay liability for any other period. The quarterly periods shall begin with the first day of January, April, July, and October." Upon reasonable request, Christensen, Englund, and Stolich shall make available to the Board or its agents all records pertinent to the calculation of back pay. The conduct of none of the Respondents indicates to me a fixed purpose on the part of any of them to deprive the employees of their rights under Section 7 of the Act. Possibly excepting the cases of Brubaker, Papangellin, and Brook- over, none of the Respondents has, in my opinion, manifested a hostility toward the exercise of statutory rights by employees and the conduct of none of the Respondents reasonably can be said to indicate the probability of other unfair labor practices. It will be recommended therefore that each Respondent be required to cease and desist only from the conduct herein found to violate the Act and such conduct as is related. Having found no violation of the Act on behalf of Masera, Crosetti, Independ- ent, Growers, and Nutting, and no unfair labor practices by Local 78 in connection with the employees of any of the last-named employers, it will be recommended that the complaint in such respects be dismissed. Upon the basis of the foregoing findings of fact and upon the entire record in the case, I make the following : 12 The Chase National Bank of the City of New York, ,an Juan, Puerto Rxco, Branch, 65 NLRB 827. , Crossett Lumber Company, 8 NLRB 440. 1+ F. W. Woolworth Company, 90 NLRB 289. STANDARD BRANDS, INCORPORATED 737 CONCLUSIONS OF LAW 1. Fresh Fruit & Vegetable Workers' Local No. 78 is a labor organization with- in the meaning of Section 2 (5) of the Act. 2. By attempting to cause and causing the discharge of Velma Brubaker, Virginia Papangellin, Clarence M. Horton, and Louise Brookover, Local 78 caused Christensen , Stolich, and Englund to discriminate against employees in violation of Section 8 (a) (3) of the Act, and thereby has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (b) (2) of the Act. 3. By such conduct, Local 78 has restrained and coerced employees in the exercise of the rights guaranteed in Section 7 of the Act and thereby has en- gaged in and is engaging in unfair labor practices within the meaning of Section 8 (b) (1) (A) of the Act. 4. Englund in the case of Brookover , Christensen in the cases of Brubaker and Papangellin , and Stolich in the case of Horton , have discriminated in re- gard to the hire and tenure of employment of these individuals, thereby en- couraging membership in Local 78 and discouraging activity in behalf of any other labor organization and have thereby engaged in and are engaging in unfair labor practices within the meaning of Section 8 (a) (3) of the Act. 5. By such conduct, Christensen , Stolich, and Englund have interfered with, restrained, and coerced their employees in the exercise of rights guaranteed by Section 7 of the Act, and thereby have engaged in and are engaging in unfair labor practices within the meaning of Section 8 ( a) (1) of the Act. 6. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2 (6) and (7) of the Act. 7. Massera , Crosetti, Independent, Growers, and Nutting have not engaged in unfair labor practices within the meaning of Section 8 ( a) (1) and Section 8 (a) (3) of the Act. Local 78 has not caused or attempted to cause the em- ployers last named to discriminate against an employee in violation of Section 8 (a) (3) of the Act and thus has not, with respect to the employees of such employers, violated Section 8 (b) (2) of the Act. Further , with respect to the employees of the last-named employers , Local 78 has not restrained of coerced such employees in the exercise of rights guaranteed in Section 7 of the Act and thus has not in those cases violated Section 8 (b) (1) (A) of the Act. [Recommended Order omitted from publication in this volume.] STANDARD BRANDS , INCORPORATED and MICHAEL SIMONE MEAT & CANNERY WORKERS UNION, LOCAL 56, AFL and MICHAEL SIMONE. Cases Nos. 2-CA-812 and 2-CB-266. December 28, 1951 Decision and Order On February 28, 1951, Trial Examiner Charles W. Schneider issued his Intermediate Report in the above-entitled proceeding, finding that Respondents had not engaged in and were not engaging in any unfair labor practices and recommending dismissal of the complaint herein, as set forth in the copy of the Intermediate Report attached 97 NLRB No. 102.