S. S. Coachman and Sons, Inc.

670 DECISIONS OF NATIONAL LABOR RELATIONS BOARD S. S. COACHMAN AND SONS, INC. and AMERICAN FEDERATION OF LABOR. Case No. 10-CA-1185. Jwne 12, 1952 Decision and Order On December 4, 1951, Trial Examiner Peter F. Ward issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had engaged in certain unfair labor practices, and recommending that it cease and desist therefrom and take certain af- firmative action, as set forth in the copy of the Intermediate Report attached hereto. Thereafter, the Respondent filed exceptions to the Intermediate Report and a supporting brief, wherein it objected only to the finding of the Trial Examiner that it had discriminatorily dis- charged Rudd in violation of Section 8 (a) (3) of the Act. Pursuant to the provisions of Section 3 (b) of the Act, the National Labor Relations Board has delegated its powers in connection with this proceeding to a three-member panel [Chairman Herzog and Members Murdock and Peterson]. 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 Inter- mediate Report,' the exceptions and briefs, and the entire record in the case, and hereby adopts the findings, conclusions, and recommenda- tions of the Trial Examiner, except insofar as they are inconsistent with the Decision and Order herein. We agree with the Trial Examiner's finding that by discharging Rudd and subsequently giving her only casual employment after the Union had complained of the discharge, the Respondent interfered with, restrained, and coerced its employees in the exercise of rights guaranteed them in Section 7 of the Act. In so finding, we reject, for reasons in addition to those cited by the Trial Examiner, certain con- tentions of the Employer claimed as a defense to this proceeding. The Respondent contends, first, that it had no knowledge of union activities in the plant prior to November 30, 1950, the day of the dis- charge, and therefore could not have discharged Rudd for such activi- ties; and second, that Rudd was not a regular employee but a tempo- rary or casual employee, that her selection for discharge was based - on her temporary status, and that when she was reefnployed after November 30 as an "extra" packer, her position was the same as it had been prior to that date. We find no merit in either of these contentions. We agree with the Trial Examiner's finding that House Foreman Sessions had knowl- ' The Intermediate Report contains the following typographical error : Page 677, line 21, the date should be January 3 instead of July 3. 99 NLRB No. 102. S. S. COACHMAN AND SONS, INC. 671 edge of Rudd's union activities and her leadership in the union organ- ization campaign, despite Sessions' testimony to the contrary. In support of this finding, we rely, among others, upon the following facts: (a) It is uncontradicted that Rudd talked about the union organization in the plant and during lunch time; (b) the plant is small and the employees work together in a small area; 2 (c) the credited testimony of two employees shows that Sessions had inter- rogated them concerning the Union and its leader some 2 weeks prior to and on the day of the discharge; 3 and (d) Sessions' reply 4 to the statement of Rudd's husband concerning Rudd's discharge for union activity indicates that Sessions was aware of the union activity claimed as the reason for the discharge. . We also reject Respondent's contention that Rudd was only a tem- porary employee and that as an "extra" packer she was the first to be discharged when work was slack. There is no evidence in the record to support the contention that Rudd was not a regular em- ployee. In fact, Rudd had worked for the Employer for several seasons since 1948 steadily and regularly. Nor is there any evidence that she came to work only when called. On the contrary, she was sufficiently regular to be selected by Sessions as one responsible for transporting several other regular employees to work every day during the packing season. If there were any merit whatever in the conten- tion that Rudd was hired as an "extra" packer only, then those hired after Rudd should have been laid off first in the normal course of busi- ness, a practice not followed in the present instance. We find, in view of Respondent's knowledge of Rudd's union activ- ities, the timing of the discharge and her rehiring as an extra, casual worker only after the Union's complaint, and the Respondent's un- satisfactory and unsupported explanation of the discharge, that the real motivation for the discharge was Rudd's leadership in the union campaign and the desire of the Respondent to rid itself of Rudd because of such leadership. Order Upon the basis of the entire record in the case, and pursuant to Section 10 (c) of the National Labor Relations Act, as amended, the 9 The evidence shows a total of some seven or eight packers and three or four graders in the plant and that Rudd talked about the Union to both classes of employees The Board has held that the Respondent's knowledge of union activity may be reasonably inferred from the small size of the plant. Stokely Foods, Inc., 91 NLRB 1267. ' Sessions admitted that immediately after the discharge he had conversations with practically all the packers concerning union activities in the plant . The Trial Examiner found, and we agree, that these conversations took place both before and after the discharge + The Trial Examiner found that Sessions replied in the following words : "Well, if yon know why I am firing you that is reason enough , and I don't have to tell you." See page 676. 672 DECISIONS OF NATIONAL LABOR RELATIONS BOARD National Labor Relations Board hereby orders that S. S. Coachman and Sons, Inc., its officers, agents, successors, and assigns, shall: 1. Cease and desist from : (a) Discouraging membership in American Federation of Labor, or any other labor organization of its employees, by discriminatorily dis- charging them, or by discriminating in any manner in regard to their hire, tenure of employment, or any term or condition of employment. (b) In any other manner interfering with, restraining, or coercing its employees in the exercise of the right to self-organization, to join or assist American Federation of Labor, or any other labor organiza- tion, to bargain collectively through representatives of their own choosing, and to engage in collective bargaining or other mutual aid or protection, or to refrain from any or all such activities except to the ex- tent that such right may be affected by an agreement requiring mem- bership in a labor organization as a condition of employment,, as au- thorized in Section 8 (a) (3) of the Act, guaranteed in Section 7 thereof. 2. Take the following affirmative action which the undersigned finds will effectuate the policies of the Act : (a) Offer to Mary H. Rudd immediate and full reinstatement to her former or substantially equivalent position without prejudice to her seniority and other rights and privileges. (b) Make whole said Rudd in the manner set forth in the Inter- mediate Report attached here in the section entitled "The Remedy," for any loss of pay she may have suffered by reason of Respondent's discrimination against her. (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 records necessary to analyze the amounts of back pay and the right of.rein- statement under the terms of this Order. (d) Post at its plant in Clearwater, Florida, copies of the notice attached to the Intermediate Report as Appendix A.5 Copies of such notice, to be furnished by the Regional Director for the Tenth Region, shall, after being signed by the Respondent's representative, be posted by it for sixty (60) consecutive days thereafter in conspic- uous places including all places where notices to employees are cus- tomarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. 6 This notice shall be amended by substituting for the words "The Recommendations of a Trial Examiner" in the caption thereof, the words "A Decision and Order." In: the event that this Order is enforced by a decree of a United States Court of Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the words "Pursuant to a Decree of the United States Court of Appeals Enforcing an Order." S. S. COACHMAN AND SONS, INC: 673 (e) Notify the Regional Director for the Tenth Region in writing within ten (10) days from the date of this Order what steps the Respondent has taken to comply herewith. IT IS FURTHER ORDERED that the complaint insofar as it alleges that the Respondent threatened to discharge its employees and to effect other economic reprisal upon them if they joined or retained member- ship in the Union, or engaged in activities on behalf of the Union, in violation of Section 8 (a) • (1) of the Act, be, and it hereby is, dismissed. Intermediate Report STATEMENT OF THE CASE - Upon a charge duly filed by the American Federation of Labor, herein called the Union , the General Counsel of the National Labor Relations Board, herein respectively called the General Counsel and the Board , by the Regional Director for the Tenth Region ( Atlanta, Georgia ), issued a complaint dated June 19, 1951, against S. S. Coachman and Sons, Inc., Clearwater , Florida, 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) and (3 ) and Section 2 (6) and (7) of the National Labor Relations Act, as amended, 61 Stat. 136, herein called the Act. Copies of the charge , the complaint, and notice of hearing were duly served on the Respondent and the Union. With respect to unfair labor practices, the complaint alleged in substance and effect that Respondent : ( 1) On or about November 30, 1950 , discriminatorily discharged Mary H. Rudd because of her union and concerted activities; (2) by the acts and conduct of House Foreman Eben R . Sessions , who, in violation of the Act, on divers dates between November 25, 1950 , and January 5, 1951, inter- rogated its employees concerning their union membership , activities, and sym- pathies ; 3 ) said Sessions' acts on or about December 1, 1950, in threatening its employees with discharge or other economic reprisals in the event they joined or retained membership in the Union, or engaged in activities on behalf of the Union; and (4) by the acts described above interfered with , restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act.' On or about July 2, 1951 , the Respondent filed its answer to the complaint wherein it denied that it engaged in the unfair labor practices alleged. Said answer admitted the interstate character of Respondent 's business. Pursuant to due notice a hearing was held at Tampa, Florida , July 23 and 24, 1951, before the undersigned Trial Examiner , duly designated by the Chief Trial Examiner. The General Counsel and the Respondent were represented by counsel ; and the Union was represented by a union organizer . All parties participated in the hearing and were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing upon the issues . At the close of the taking of testimony , the General Counsel moved to conform the "papers in the case " to the proof not going to material issues. Such motion was granted without objection . Also following the receipt- of testimony the General Counsel and counsel for Respondent argued orally on the record before the undersigned. The parties were advised that they might file briefs and/or proposed findings of fact and conclusions of law with the undersigned . A brief was so filed by counsel for the Respondent and has been duly considered. 674 DECISIONS OF NATIONAL LABOR RELATIONS BOARD During the course of the hearing counsel for Respondent made a number of motions to dismiss the complaint, and to strike certain testimony and exhibits. Such motions were denied with the proviso that they might be renewed at the close of the hearing. The motions were duly renewed, at which time the undersigned reserved ruling thereon for his Intermediate Report, and now rules, that inasmuch as such motions have been disposed of by the findings, conclusions, and recommendations following, the same be, and they are, hereby denied. Upon the entire record in the case and from his observation of the witnesses, the undersigned makes the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT S. S. Coachman and Sons, Inc., is a Florida corporation with its principal place of business at Clearwater, Florida. It is engaged in the business of pack- ing, processing, and shipping citrus fruits. During the 1950-51 season the Respondent purchased citrus fruits, materials, and supplies having an approxi- mate value of $300,000, substantially all of which was purchased in the State of Florida. During the same period the Respondent processed and shipped citrus fruits valued in excess of $500,000, of which approximately 80 percent was sold and shipped in interstate commerce to customers and places outside the State of Florida. Respondent conceded that it was and is engaged in interstate commerce.' II. THE LABOR ORGANIZATION INVOLVED The American Federation of Labor is a labor organization within the mean- ing of Section 2 (5) of the Act. III. THE UNFAIR LABOR PRACTICES The discriminatory discharge of Mary H. Rudd; interference, restraint, and coercion 1. The events antedating the discharge Rudd was first employed by Respondent in 1936 for the 1936-37 season' Thereafter, she worked the two following seasons or until the close of the 1938-39 season. She started the 1940-41 season but due to a tire shortage, affecting the use of her car, she quit early in that season. She returned to work for the Respondent in late January or early February of 19488 and worked until the close of the 1947-48 season. She returned in the fall of 1948 and worked full time during the 1948-49 and the 1949-50 seasons. She started the 1950-51 season in October 1950 and worked until the close of the workday of November 30, 1950,' when, as is set forth in detail below, she was discharged by Eben R. Sessions' the Respondent's "House Foreman." 1 The facts found in this section are based upon allegations of the complaint which were admitted in Respondent 's answer ; and upon statements of counsel for the parties made upon the record. 2 The packing season begins in or about October of each year and concludes in or about June or early July of the following year , with occasional short shutdowns of operations. 8 During her approximately 7 years' absence from Respondent's plant she was employed as a packer by other employers, whose plants were "closer to my home." ' Unless otherwise stated, all events referred to herein occurred in 1950. 5 Frequently in the record referred to as "Ed" Sessions. S. S. COACHMAN AND SONS, INC . 675 On or about November 15, 1950, Jack Newton, an employee of Juice Industries who was active on behalf of the Union, called on Rudd, sought to, and did induce her to take a part in promoting organization of Respondent's employees. Newton suggested that she contact the women employees in Respondent's plant and she agreed to do so. Thereafter Rudd discussed the Union among some of the packers, all of whom were women. She discussed the Union with the packers during breaks on the job and with the graders during lunch time. Subsequently Newton made a further call on Rudd and left some union (application) cards with her, together with a copy of a contract with "some houses" on the east coast that the Union had organized, in order to show the advantage of having a union with the resultant rates of pay received. Rudd contacted four of the packers and three graders on Thanksgiving Day, November 23, and on the following day, November 24, Rudd procured signed union cards from a number of the packers. Between on or about November 15 and 30, Rudd conferred with Newton some four or five times concerning the Union. Between November 20 and 25, Newton brought Frank E'Dalgo, union organizer, to Rudd's home for an introduction and conference. Between on or about November 15 and 30 inclusive, House Foreman Sessions questioned packers concerning the Union as follows : Bernice Shepard, Thelma Ringer, Callie Blackburn, and Mrs. Carter.' 2. The discharge Sessions testified that during the day on November 30 he determined to ter- miate Rudd as of the close of the workday. After the packers and graders had concluded their work for the day and had left the plant he and Mrs. Bence' made out Rudd's check after which J. W. Coachman, a member of the firm, signed it. On the night of November 30, Sessions went to Rudd's home to deliver the check which was marked "paid in full." He testified : Q. Please relate as clearly as you can recall, what Mrs. Rudd said to you and what you said to Mrs. Rudd on that occasion. A. Well, on the night of November 30, I went to Mrs. Rudd's house; I went to the door and she asked me in. I went in and sat down on the settee, and sat there for a couple of minutes, and I says, "Mrs. Rudd, I have come by to bring you your check. I am going to have to lay you off, due to the fact that we don't have enough work to keep all you girls busy." I said, "We decided to lay somebody off." [Emphasis supplied.] s * s m a s s Q. Now did Mrs. Rudd ask you anything about why you didn't lay off some of the other packers or something of that kind? A. No, she didn't. She just said "why me?" She said, "I am an older packer than some of the rest." I says, "Well, just because we picked you out of the bunch, or7 did, to layoff."' [Emphasis supplied.] Firm not otherwise identified in the record ? It should be noted, as is set forth in detail below, that Sessions denied any knowledge of the Union's activities prior to December 1, 1950, or after Rudd's discharge on November 30, 1950; and also denied ever discussing the Union with any employee on his own motion. The testimony in connection with the above finding is discussed in "Respondent's Contentions," below. 8 Presumably a bookkeeper or a timekeeper , but not further identified on the record. 9 As is set forth below , the Respondent was to contend that Rudd was selected for discharge on the theory that she had been hired as an "extra" packer only, and was thus subject to layoff ahead of "regular" packers, 676 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On Saturday, December 2, Sessions returned to Rudd's home with an additional check, and stated, "We found we owed you some more money, Mrs. Rudd, and I come to bring it to you." This check, like the November 30 check, was also marked "paid in full." 10 With respect to the layoff of employees, other than Rudd, "for lack of sufficient work," Sessions testified on direct : Q. Well, were there occasions when other employees were laid off for lack of sufficient work? A. Except right at the end of the season ; Mrs Martson was off two weeks, and Mrs. Blackburn was off, for a week. Q. What was the reason that they were off? A. Well, we just didn't need them, and they wanted to get off for a vaca- tion or something, and I told them as long as we didn't have too much work they could go ahead and take off, which they did On cross-examination with reference to time off by Martson and Blackburn, Sessions testified : Q. You do say, however, in your testimony, that at the end of the season there were a couple of them that said they wanted to get off on vacations? A. That is right, they wanted some time off, and we didn't need them at that particular time and I gave them permission to go. Q. In other words, if they hadn't wanted to leave off you would have kept them until the end of the season? A. Well, yes, if they wanted to work, yes. [Emphasis supplied.] During the meeting at Rudd's home on the night of November 30, the latter's husband advised her, within the hearing of Sessions, to call E'Dalgo, union organizer, and report her discharge. In this connection, Virginia Stewart, daughter of the Rudds, who was present during Sessions' call on her mother. testified as to Mr. Rudd's comments, in part as follows : Q. Was your father present at that time? A. Yes, sir. Q. Did he have anything to say? A. He says, "Mary, [Rudd] you know why they are firing you. Call E'Dalgo." He said, "Why don't you call E'Dalgo?" He says, "You know they are firing you for union activities;" he says, "Call him." and Ed [Sessions] turned to Mother then and says, "Well, if you know why I an firing you that is reason enough, and I don't have to tell you. If you know the reason that is reason enough." And Daddy says, "Tell E'Dalgo....11 [Emphasis supplied.] 11 The record indicates that Rudd did notify E'Dalgo of her discharge. On the morning of Friday, December 1, E'Dalgo called James W. Coachman, general manager, secretary, and treasurer of Respondent, on Rudd's behalf. Coach- "Rudd testified, without dispute, that during her entire employment with Respondent, both before 1948 and thereafter, the only occasions on which her checks were marked "paid in full," were the two checks used to pay her as of her termination on November 30. "Sessions testified that Mr. Rudd was present on the November 30 meeting and "he kept raring up" and saying, "why don't you call Mr E'1)algo." Sessions' attention was not directed particularly to the emphasized quotation above, and thus he did not deny making the statement. Sessions testified that Stewart "blew her top" and said a lot of things on this occasion. The record indicates that she became angry and resentful at her mother's treatment On the whole, however, she impressed the undersigned as one who sought to tell the truth Her testimony is credited. S. S. COACHMAN AND SONS, INC. 677 man then denied that Rudd was discharged and contended in substance and effect that she was merely laid off for economic reasons. Both Sessions and Coachman testified that E'Dalgo's telephone message,was- the first time either had heard of any union activities by or on behalf of Re- spondent's employees 12 As a result of E'Dalgo's phone talk with Coachman and the latter's contention that Rudd was not fired, but "laid off" only, and pursuant to E'Dalgo's instruc- tions, Rudd went to the plant on Tuesday, December 5, 1951, saw Sessions, and' reported E'Dalgo's statement that Coachman had said she was not fired, not- withstanding the "paid in full" on her checks led her to believe otherwise. Sessions said she was not fired, "Just laid off," and would be used as an "extra" during Christmas rush. Rudd then saw Coachman who iterated Sessions' statements above referred to. Rudd was called to work as an "extra" on December 8,13 1951, and worked until about December 23, 1951, when the packing plant closed down for about 10 days, a normal annual procedure. Rudd was recalled to work on January 23, 1951, and worked until February 10, 1951. Thereafter, she worked a day or two now and then, with a week's work in May. On June 7, 1951, Rudd was told her work was ended. The packing plant operated from January 2, 1951, through July 5, 1951. Under date of July 3, 1951, E'Dalgo wrote a circular to employees of Respond- ent on the letterhead of American Federation of Labor, Southern Office, reading as follows : January 3, 1951 Tb : The Employees of S. S. Coachman & Sons Clearwater, Florida DEAR FRIEND : I am writing you to advise that we are planing [sic] to have a meeting in Clearwater, Florida, Sunday, January 7, 1951 at 3: 00 P. M. The place will be designated at a later date. You may contact Mrs. Mary Rudd and she will notify you where the meeting will be held. During the past several months the cost of living has advanced by leaps and bounds, the price of citrus fruits are selling at high profits, but in spite of all this the unorganized citrus worker in most cases has failed to receive any increase in wages. If for no other reason except this fact, certainly it is high time that the Citrus Worker organized in order that he may be in a position to bargain collectively with his employer. I want to urge all of the employees at your plant to be present at the meeting Sunday. You will be given an opportunity to ask any question with respect to the Union or any problems which the employees of Coachman and Sons are confronted with. A representative of the American Federation of Labor will be present for the purpose of discussing these matters with you. Don't fail to attend. Very truly yours, FRANK E'DALoo, Organizer American Federation of Labor 201 Peoples Bank Building, Auburndale, Florida Both Coachman and Sessions testified that all or substantially all employees turned their copies of such circular letter in to the main office of Respondent, with 1' Sessions admitted that he heard E'Dalgo's name mentioned at Rudd's on November 80, but said it meant nothing to him. 11 It should be noted that she missed but 5 workdays from the date of discharge until she returned to work on Friday, December 8, 1951 . Respondent knew on the day of such discharge that the "Christmas Rush" was due to get under way shortly. • 215233-53-44 ,678 DECISIONS OF NATIONAL LABOR RELATIONS BOARD statements by at least some of the employees that they were not interested. The record is silent as to by whom or how such action was initiated or induced. The implication of such conduct is discussed below. The record discloses, without dispute, that on Nevember 30, 1950, when Rudd was discharged, she had seniority over at least two packers who first began to work for Respondent in October 1950, and these had less than 60 days' employ- ment with Respondent when Rudd was discharged. The packers reefrred to are Bernice Shepard and Thelma Ringer. 3. Issues ; contentions ; conclusions The Respondent contends in substance and effect: (1) That Rudd was a seasonal employee" of Respondent who was hired as a seasonal extra packer, as distinguished from a regular packer, and was thus subject to layoff in advance of regular packers when an insufficient volume of fruit was available for packing; (2) that said Rudd could not have been discharged, laid off, or otherwise terminated by reason of her union or concerted activities for the reason that neither General Manager Coachman nor House Foreman Sessions had any knowledge, direct or indirect, of any union or concerted activities among any of Respondent's employees on or prior to the date of Rudd's termination on Novem- ber 30, 1950, and that Sessions at no time during the month of November 1950 interrogated the employees of Respondent concerning their union membership, concerted activities, or union sympathies, or at all; and (3) that such discus- sions as were admittedly had by Sessions with the employees concerning the Union or unions, were had after Rudd's termination on November 30, 1950, and occasioned on the motion of the employees themselves in approaching said Sessions and questioning him as to his opinion of the Union or unions ; and as to the delivery, by the employees, without known exceptions, of the invitations of Union Organizer E'Dalgo to attend a union meeting on Sunday, January 9, 1951, to General Manager Coachman's desk, such delivery was not suggested, induced, required, or desired by the Respondent, either as evidence of the em- ployees' lack of interest in the Union or as indicating a vote of confidence in the Respondent or for any other purposes. As to contention (1), wherein it is contended that Rudd's reemployment in 1948 was as a seasonal "extra" packer, one subject to termination prior to all "regular" packers, the record as to such employment discloses, according to Rudd's testimony, as follows : Q. (By Mr. Garver) I see. When you returned to work in the early part of 1948 by whom were you employed? A. Ed Sessions. Q. Do you remember where you were at the time he discussed your coming to work? A. At his home, on Sunday afternoon. Q. And do you remember what kind of conversation if any, you had with him that time? A. Well, I just asked him how he was fixed for packers, and he said, "Well, I have got a pretty good crew now." I told him I wanted a job. He said, "Well, you can come on out and sit around with us." Q. After that you went out there? A. I went to work next morning at eight o'clock. u Since in the citrus industry the products may be processed only , at certain seasons of the year, all employees directly engaged in the processing and packing and grading products are "seasonal" employees. S. S. COACHMAN AND SONS, INC. 679 Q. Now when you began to work then in the early part of 1948, did you work until the end of the season? A. I did. The record discloses, without dispute, that Rudd also worked full time as a packer through the 1948-49;° 1949-50 seasons at all times when any packing was done or other regular packers worked and without being laid off on any occasion when the packing process was in operation during the seasons referred to16 In connection with his employment of Rudd, Sessions testified : Q. Do you recall any-Well, do you recall when Mrs. Rudd was employed by S. C. Coachman and Sons? A. Yes ; she was employed the first time by me in 1948, I believe. Q. You were foreman at that time? A. That is right. Q. Had Mrs. Rudd worked for you as foreman prior to that time? A. No, sir. Q. What did you employ Mrs. Rudd to do? A. I employed Mrs. Rudd as an extra packer , when ever I needed extra help. (Mr. Garver's motion that question and answer be stricken, denied.) Q. Did you tell Mrs. Rudd that that was what she was employed to do? A. I did. Q. Did you after that time in any way change the type of employment that you gave her? A. No, sir. Q. Well, did you hear Mrs. Rudd when she testified yesterday that you employed her to go out there and sit around? A. I did. Q. Is that what you employed her to do? A. I certainly did not." At the time he hired Rudd in 1948, Sessions asked her if she "wanted to haul some women" to the packing plant. He had been transporting some three or m Which season began in the fall of 1948. LE In this connection, Rudd on cross-examination, testified : Q. Well, now, what did Mr. Sessions tell you with reference to employment at that time? (Late January or early February 1948.) A. He said, "I am pretty well fixed for packers, but if you want to come out and it around with us come on. We are doing a lot of sitting around now, but you come on out ; come out in the morning at eight o'clock. Q. He invited you to come out and sit around with them, is that correct? A. That is what he said. Q. Well, did you accept the invitation? A. I went to work the next morning at eight o'clock. Q Did Mr. Sessions tell you whether or not you were employed as an extra packer or a regular packer? A. He didn't say "extra." Q. Did he say "regular?" A. He didn't say. He said, "Come on out." Q. And you went out there? A. I went out there. "It should be noted that Rudd did not testify that Sessions employed her to "go out there and sit around," she merely quoted Sessions' language, which on its face indicates that "sit around" expression was used in a jocular manner. Rudd testified, as noted above, that she went "out there" at 8 o'clock and went to work. 680 DECISIONS OF NATIONAL LABOR RELATIONS BOARD four workers to the plant and since their workday ended sometime before Ses- sions' did, the women were delayed in getting home by waiting for him at night. Rudd agreed that since it would help out on her expenses that she would "haul" the women to and from work. On her first day of work arrangements were made whereby Rudd took four of the women as passengers. She continued hauling passenger workers to the plant until her discharge on November 30." Both Coachman and Sessions testi- fied that at least as early as November 1, 1950, Coachman instructed Sessions to. discharge, lay off, or terminate "one" or "a" packer at the first opportunity permitted by the fruit pack. According-to their testimony, no reference was made to Mrs. Rudd or any particular packer by name, but both agreed that the selection of a packer for discharge would be made by Sessions. In this connection Coachman testified : Q. Did you see Mr. Sessions, if you recall, on the night of November 30, 1950? A. Yes, I was ill in bed, and Mr. Sessions during that week that I was ill in bed always came by after the packing house had closed that night, or finished work, and told me what he had done that day; and he did come to my house that night and said, "Well, we haven't got any orders, I am going to have to lay somebody off." I said, "Go ahead." He said, "I have already done it," or "I am going down and do it," or "I have already done it," I don't know which. Q. Prior to that time had you and Mr. Sessions had any discussions about who you were going to lay off? A. I left it up to Mr Sessions, I told him to lay off the most undesirable packer, or left it up to his discretion. Q. In other words, you were going to let him be the judge of who to lay off? A. Yes, sir. It should be noted at this point that Respondent's answer states in substance and effect that Rudd was discharged. or otherwise terminated on November 30, 1950, because of her alleged status as a seasonal "extra" packer, and as such subject to termination prior to other packers. If there was any merit to such contention, why leave the selection of a packer for discharge to the discretion of Sessions? The record contains no evidence indicating that Rudd was in fact undesirable as a packer ; or that she did not produce her full quota of work. From the foregoing and the record, it is clear that at the time Sessions dis- charged Rudd as aforesaid, he made no claim or statement to her that her alleged status as an "extra" packer required her termination ahead of other packers. As is set forth above, Sessions testified : Q. Now did Mrs. Rudd ask you anything about why you didn't lay off some other packers, or something of that kind? A. No, she didn't. She just said, "Why me?" She said, "I am an older packer than some of the rest." I says, "Well, just bemuse ice picked you out of the bunch, or I did, to lay off." On the basis of the foregoing and the record as a whole it is clear and the under- signed finds that Rudd, at all times material herein, was employed as a packer and 18 It would appear most unlikely that Sessions would suggest that an "extra" or part- time employee take on the responsibility of transporting Respondent 's employees to work. 19 That as an "extra," Rudd would be subject to discharge prior to other packers. - S. S. COACHMAN AND SONS, INC. 681 -was at no time an "extra" packer notwithstanding Respondent's refusal after November 30, 1950, to grant her full-time employment 20 Contention (1) is without merit. It is so found. As to contention (2), whereby the Respondent insists that Coachman's and Sessions' alleged lack of any information whatsoever of any union or concerted -activities among Respondent's employees prior to Rudd's discharge, is con- clusive evidence that such discharge was nondiscriminatory. The record discloses conclusively that Rudd, as found and set forth herein- above, did undertake to organize the women packers and graders ; that she in- terviewed four packers and three graders between about November 15 and 26 concerning the Union, and secured the signatures of several packers to union cards both before and after Thanksgiving Day. It may be taken for granted that those approached by Rudd discussed the Union with other employees. As is set forth in detail below in the consideration of Respondent's contention ,(3), Sessions , while testifying that he did not discuss the Union with any em- ployee during November 1950, also testified that after Rudd's discharge all of the packers asked him concerning his opinion of the Union and that to each and all of them he said, "Personally speaking I don't care for it." n As is found above and discussed-below all employees received a circular in- vitation from E'Dalgo to attend a union meeting on January 9, 1951, and all or practically all such employees surrendered such invitations to General Manager Coachman, with a statement by some that they were not interested in such meeting. The undersigned finds below that such conduct 22 was occasioned by Rudd's ,discharge and by Sessions' discussion of the Union with the packers together with his subsequent contention that he had not interrogated any employee con- •cerning the Union prior to Rudd's discharge. Sessions' conduct, next above de- scribed, had its effect on certain witnesses called by the General Counsel, in that by their testimony and conduct they indicated a fear of testifying to any conver- sations had with Sessions concerning the Union during November 1950. Mrs. Bernice Shepard, called as a witness by the General Counsel, testified in substance that she was hired by Respondent as a packer and worked as such from October 1950 to close of season in the spring of 1951; that she learned of the union organizing among Respondent's employees from Mrs. Rudd ; that she learned of such activity around Thanksgiving time, "It was pretty soon before, but I don't remember just when" ; and that she saw union cards shown by Mrs. Rudd. When asked if she had any conversation with respect to the Union with Ses- sions, Shepard answered : "Not until Mary [Rudd] wasn't there any more." .Shepard further testified : Q. This conversation with Mr. Sessions, tell us what it was? A. Well, he asked me if I had heard anything about the Union. That is all he asked me. 20 It should be noted that when he discharged Rudd on the night of November 30, 1950, 'Sessions neither made nor contends that he made any statement to Rudd that she would be recalled to work in any category in early December of 1950 The fact that Rudd was called to work on or about December 8 and after Union Organizer E'Dalgo had disclosed the Union's intention to contest the discharge as discriminatory„ merely indicates that Respondent determined to give Rudd occasional and irregular employment in an effort to defeat the unfair labor practice charge Respondent anticipated would be filed and prosecuted. It is so found. n Among the packers that Sessions contended asked for his opinion were Catherine Morris and Myrtle Ruth Bell , nieces of Sessions , Tillie Marston , Callie Blackburn, Mrs. Carter, Thelma Ringer , and Bernice Shepard 22 The surrendering of invitations of the union meeting to Respondent. 682 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Q. Did you overhear any such conversation between Mr. Sessions and any other packer? A. Well, I heard him ask the packer next to me. Q. And who was that? A. Mrs. Carter. Shepard then identified her signature on a document subsequently received in evidence as General Counsel's Exhibit No. 4-reading as follows : To whom it may concern : I, Bernice Sheppard [sic] was approached on Nov. 23, 1950 by Mary Rudd who asked me to sign an N. L. R. B. card for representation under the Citrus Workers Union. On Nov. 30, Ed Sessions, House Foreman for Coachman & Sons asked if I had heard anything about the Union. Mr. Sessions also questioned me about who had started the Union. Signed this 2nd day of Dec. 1950. /s/ MRS. BERNICE SHEPARD S'iepard further testified that Jack Newton 24 wrote "all that down" and asked f.er to sign it. She stated : "Well, I haven't told any stories, and I don't mind signing anything when I tell the truth about it. Q. Well, on this paper you signed-I show it to you-see where it says there "On November 30th, Ed Sessions, house foreman for Coachman 'and Sons, asked me if I had heard anything about the Union" (Intervening objections) Q. (Continued) seeing.that on that paper which you signed, does that help you in any way to tell us when it was that Mr. Sessions asked you about the Union? A. That is the date, but I don't remember what day it was. It was the day that Mary was laid off that night. [Emphasis supplied.] Thelma Ringer, a witness called by the General Counsel, testified in substance that she was first employed as a packer by the Respondent and entered such employment in October 1950 and worked until the close of the October 1950-51 season which ended in July 1951. That until Rudd's discharge, she rode in the latter's car to and from the packing plant. On the night of Rudd's discharge someone called Ringer's husband and informed him that Mrs. Ringer would not be able to ride with Rudd the next day (December 1, 1950). Ringer called Rudd "that same night" and asked why she was not going to work. Ringer testified : Q. You called her that same night? A. I called her that same night, she said she was not going any more the next day, and I said, "Why, is Virginia sick?" And she said no, that she got fired. And I asked her, I says, "What do you mean?" She says, "Well, wouldn't you consider it being fired if you had received your check?" And I said, "Well, I don't know." And that was all that I know. Ringer further testified : Q. As a packer you were working under Mr. Sessions? A. Yes, sir. 21 Mrs. Carter was not called as a witness. u It should be noted, as found above, that Newton supplied Rudd with union cards and induced her to canvass the packers and graders. S. S. COACHMAN AND SONS, INC. 683. Q. Do you recall any conversation between you and Mr. Sessions, or by him with you, with respect to the Union? A. All that he has ever said to me was that he asked me one morning had I heard anything about the Union, and I told him that I had not. * * * * * * Q. All right. Now with respect to this telephone call to Mrs. Rudd, tell us when was it that Mr. Sessions had asked about the Union? A. Well, I wouldn't even say now, because I don't even remember. It was before then quite a bit, quite a while before then, I believe, but I couldn't tell you exactly. Q. What is your recollection as to how long before that night (November 30, 1950) it was? A. Well, I don't even know. I really don't know. It was a good while, but I couldn't, I wouldn't even begin to say. It was a good while, because- I hadn't heard anything. . . . Q. Was it days or weeks, or what would you say? A. Well, I would say it was even two weeks,25 or maybe longer ; now seem- ingly it would be. No really... . Q. Why seemingly? A. It was so long, you know, in the time that all this 2° took place, I really wouldn't even say. Ringer testified that she first learned of the union activity at the Respondent's packing plant from a person not employed by Respondent. Ringer admitted that an investigator for the Board called on her at her home but professed to have been unable to recall anything definite that was told or repeated to the investigator by herself. Callie Mae Blackburn, called as a witness by the General Counsel, testified in substance that she had worked as a packer for Respondent during the 1950-51 season, and for a good many seasons prior to the last one. Blackburn testified : Q. Do you recall ever hearing about the union and the people there being- interested in it? A. I sure did not. Q. Did you have any conversation, or did he have with your Mr.- Sessions... . A. I sure did not. Q. About the Union? A. No. Q. Never at any time? A. Never at all. What I knew about it I asked him. Q. What? A. What I heard about it I asked him. Q. Didn't you just talk to me in the hall a few minutes ago? A. I said Mr. Sessions was talking to the lady next to me, and I said "What is that?" and he said, "Are you interested in the Union" and I said I wasn't going to join the union. Q. It is not quite clear to me. You say Mr. Sessions was talking to some- body near you? A. Next to me. Q. Who was that? A. Mrs. Ringer. 'a The credible testimony discloses that Rudd started to interest the employees in the Union about November 15, 1950. 26 Union activity, Sessions' questions concerning the Union, and Rudd's discharge. '684 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Q. What did you hear them saying, or he saying to her ; or what did you hear? A. I didn't hear anything, only something was mentioned about [sic] She says, "Well, that is against my rules, to join a union." And then I asked him, I said "What is that?" He said well, lie understood that they were trying to form a union, and I said I wouldn't join a union. Q. Do you remember about when this conversation was taking place? A No, sir. Q. What? A. No, sir. Q. At the time this conversation between Sessions and Ringer and your- self was Mrs. Rudd working there at that time? A. No, I think that was later, a good bit later. Q. That was a good bit later? A. Yes. Q. When you talked to me in the ball a few minutes ago didn't you tell me you thought it was about a couple of weeks before Mrs. Rudd left? 24 A. No, it was afterward.28 Q. Afterward? A. Yes. , Blackburn testified that an investigator for the Board interviewed her con- -cerning events referred to above; made notes of the interview and asked her to sign a statement, she refused ; that the statement was not read to or by her as she did not have time ; and that she suggested that the investigator return .at a later date. He did not do so.2B Sessions testified that he at no time questioned any employee concerning the Union ; and that he did not mention or discuss the Union with any employee -during November 1950. On direct examination, in response to a question Sessions testified : Q. After November 30th did you have a conversation with Mrs. Thelma Ringer? A. The only conversation I had with Mrs. Ringer, she came in and asked me what I thought about the union-that was some couple of weeks later- and I said, Personally speaking, I don't care for it. Q. Is that all the conversation, you had with her about it. A. That is all the conversation I had with Mrs. Ringer. Q. Did you have a conversation with Bernice Shepard? A. After I had laid Mrs. Rudd off for, oh, a week or ten days or two weeks, I don't remember the date, but she asked me about the same thing that Mrs. Ringer did. Q. And what did you tell Mrs. Shepard? A. I gave her the same answer. I says, Personally speaking i don't care for it 20 "It should be noted , as is quoted hereinabove , that Ringer testified that Sessions spoke to her on one occasion concerning the Union ; and finally fixed the time as about November 15. 21 Blackburn did not deny telling Garver in the hall a few minutes prior to the question that she thought it "was about a couple of weeks before Mrs. Rudd left." 22 The investigator was not called as a witness. 80 Sessions testified that other packers asked his opinion of the Union, namely Blackburn, Catherine Morris, his niece, Tillie Marston , Myrtle Ruth Bell, also a niece, and the latter's husband and others and that to each and all stated , "Personally speaking , I don't care for it." S. S. COACHMAN ANT) SONS, INC. 685 The undersigned credits Shepard 's testimony particularly insofar as it is- corroborated by her signed statement which is an exhibit in the record and set forth in full above together with her testimony concerning Sessions ' questioning Mrs. Carter also set forth above ; he also credits Ringer's testimony to the effect that Sessions questioned her concerning the Union on or about November 15; and credits Blackburn's testimony as having heard Sessions discuss the Union with Ringer and as to Sessions' statement to Blackburn concerning the Union, quoted above, but does not credit Blackburn's statement that such events oc- curred after November 1950 21 On the basis of the foregoing and upon the record as a whole, the undersigned is convinced and finds that Sessions was at all times from on or about November 15, 1950, advised and aware of the Union and concerted activities among Re- spondent's employees, and that on or before November 30, 1950, learned of Rudd's activities on behalf of the Union, all of which information Sessions un- doubtedly passed on to Coachman, the latter's contention and testimony to the- contrary notwithstanding. Contention (2) is without merit; it is so found. As to contention (3), as is set forth in consideration of contention (2) next above, Sessions testified and contends that only on occasions after Rudd's dis- charge on November 30, 1950, did he discuss or express an opinion on the Union or on unions; and then expressed such opinions in answer to requests made by employees. With the exception of Blackburn,32 no witness testified that they requested any opinion of Sessions as to his views on the Union. Sessions named most of' the packers as having done so His uncorroborated testimony will not support a finding that the Respondent's employees, on their own motion, requested Sessions' opinion on the Union. It is so found. The record discloses that following Rudd's discharge, the Union's intercession on her behalf, and the Union's circularized invitation to all Respondent's em- ployees to attend a union meeting on January 9, 1951, almost without excep- tion' all employees turned such circularized invitations over to either Sessions or Coachman with a statement to the effect that they did not want them or were not interested. The record contains no concrete testimony indicating who, if anyone, suggested such procedure. The fact that such action was taken by the entire employee group would tend to lead to an inference that the employees- were led to believe that such action might prevent terminations or be actually necessary to insure continued employment S" While the record will not support a finding that such an inference is war-- ranted, such conduct on the part of the employees does demonstrate the coercive- effect of a discriminatory discharge in discouraging membership in a union.. It is so found. Had Sessions in fact been asked his opinion concerning the- Union by those who felt it necessary to surrender their invitations to a union' meeting to management, and were told "Personally speaking , I don't care for it," most if not all of them would feel certain the Rudd discharge was occasioned by her union membership or activities, such statement by Sessions would be in. violation of Section 8 (a) (1) of the Act; on the whole, however, it appears 21 While Ringer , in the undersigned 's opinion , withheld facts within her knowledge, he is persuaded that as to the limited facts upon which she did testify, she sought to testify truthfully. In view of all of which , it necessarily follows that the undersigned does not credit the uncorroborated testimony of Sessions , unless otherwise stated. se In its last analysis , Blackburn 's question did not request an opinion , but asked for the iteration of a statement made by Sessions to Ringer. 11 At least one witness testified that she had not received a copy of such circular. &4 The findings of fact in this connection as to the invitations being delivered to Re- spondent are based on the credited testimony of Coachman and Sessions. ,686 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that the record will not support such a finding. Contention (3) has merit. It is so found. 4. Concluding findings The Respondent's contention that Rudd's discharge was for cause, based upon ,economic necessities in the first instance, and required that she, as an alleged "extra" packer be terminated prior to all other packers, in the second place, is not supported by substantial or competent evidence on either score. In view of all the foregoing circumstances, the undersigned concludes that the Respondent has wholly failed to establish by probative evidence that Rudd's layoff or discharge was for cause, and further finds that the evidence in the record as a whole preponderates in favor of the conclusions that Rudd's employ- ment was terminated because of her union sympathies and activities, and that the Respondent thereby violated Section 8 (a) (3) of the Act. By such discrimination and by interrogating Shepard, Ringer, Blackburn, and Carter concerning the Union and as to who had promoted it, as found above, thereby interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (1) ,of the Act. 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 its operations described in Section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that the Respondent has engaged in certain unfair labor prac- tices, the undersigned will recommend that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. It has been found that the Respondent discriminated in regard to hire and tenure of employment of Mary H. Rudd. It will be recommended that the Respondent offer to her immediate and full reinstatement to her former or sub- stantially equivalent position,' and make her whole for any loss of pay she may have suffered as a result of the discrimination by payment to her of a sum of money equal to that which she would have earned as wages from November 30, 1950, to the date of the offer of reinstatement, less her net earnings." The loss of pay will be computed on a quarterly calendar basis, in accordance with the formula adopted by the Board in F. W. Woolworth Company, 90 NLRB 289. Earnings in one particular quarter will have no effect upon the back-pay liability for any other quarter. It is further recommended that the Respondent make available to the Board, upon request, payroll and other records to facilitate back-pay computations. F. W. Woolworth Company, supra. 85 The Chase National Bank of the City of New York, San Juan, Puerto Rico, Branch, 65 NLRB 440, 497-8 36 By "net earnings" is meant earnings less expenses , such as for transportation, room, and board , incurred by an employee in connection with obtaining work and working elsewhere, which would not have been incurred but for this unlawful discrimination and the consequent necessity of his seeking employment elsewhere . Crossett Lumber Com- pany , S NLRB 440. Monies received for work performed upon Federal , State, county. municipal, or other work- relief projects shall be considered earnings . Republic Steel Corporation V. N. L. R. B., 311 U. S. 7. S. S. COACHMAN AND SONS, INC. 687 The undersigned is of the opinion that the unfair labor practices found herein disclose "an attitude of opposition to the purposes of the Act and to protect the Tights of employees generally," " on the part of Respondent, which indicates the likelihood of its resorting to other and further acts of interference, restraint, and coercion, in violation of the Act. It will be recommended that Respondent be ordered to cease and desist from in any manner infringing upon the rights of employees as guaranteed in Section 7 of the Act. Upon the basis of the foregoing findings of fact and upon the entire record in the case, the undersigned makes the following: CONCLUSIONS OF LAW 1. American Federation of Labor is a labor organization within the meaning of Section 2 (5) of the Act. 2. By discriminating in regard to the hire and tenure of employment of Mary H. Rudd, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (3) of the Act. 3. By such discrimination and by interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2 (6) and (7) of the Act. [Recommendations omitted from publication in this volume.] Appendix A NOTICE TO ALL EMPLOYEES Pursuant to the recommendations of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, we hereby notify our employees that : WE WILL NOT discourage membership in AMERICAN FEDERATION OF LABOR, 'or discourage activity in support of that organization or any other labor organization , or discourage any employee from exercising the rights secured to him under the National Labor Relations Act, by means of discriminatory discharge or discriminating in any other manner in regard to hire or tenure ,of employment, or any term or condition of employment. WE WILL NOT in any other manner, interfere with, restrain, or coerce our employees in the exercise of the right to self-organization, to form labor -organizations, to join or assist AMERICAN FEDERATION OF LABOR, or any other labor organization, to bargain collectively through representatives of their ,own choosing, and to engage in 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 Mary H. Rudd immediate and full reinstatement to her former position and make her whole for any loss of pay suffered. S. S. COACHMAN AND SONS, INC., Employer. Dated------------------------ By ------------------------------------- (Representative ) (Title) This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. OF May Department Stores v . N. L. R. B., 326 U. S. 376.