Salt River Valley Water Users Association

SALT RIVER VALLEY WATER USERS ASSOCIATION 849 Group (b) : All body men, body men helpers, car washers and pol- ishers, undercoating and lubricare men, parts salesmen, the service salesman,4 and the j anitor.s If a majority of the employees in group (a) vote for the Intervenor, they will be taken to have indicated their desire to constitute a sep- a.rate bargaining unit, and the Regional Director conducting the elec- tion herein is instructed to issue a certification of representatives to such labor organization for such unit, which the Board under such circumstances finds to be appropriate for purposes of collective bar- gaining. In the event a majority of the employees in group (a) vote for the Petitioner, they will be taken to have indicated their desire to be represented by such union, and, if a majority in group ( b) likewise vote for the Petitioner, the Regional Director is instructed to issue a -certification of representatives to the Petitioner for an employer- wide unit, and under such circumstances the Board finds this unit to be appropriate for purposes of collective bargaining. [Text of Direction of Election omitted from publication in this -volume.] 4 The Petitioner at first desired to exclude the service salesman , but later stated that any Board determination would be agreeable to it. The service salesman sells repair and other automobile services to the customers , and delivers the written service orders to the various employees who perform the work. Like the mechanics and other service employees , he is under the supervision of the service and parts manager . As his interests are similar to those of the service employees , we have included him in this voting group. Hanna Motor Company, supra. 6 The janitor cleans the offices and the showroom ; when he has time, he also cleans the mechanics' shop. At the Petitioner's request, and over the Employer's objection, we have Included this employee. See Roanoke Cas Company, 94 NLRB 1431 ; California Spray Chemical Corp., 86 NLRB 453. SALT RIVER VALLEY WATER USERS ASSOCIATION, AN ARIZONA CORPORA- TION and LEO STURDIVANT INTERNATIONAL BROTHERHOOD OF ELECTRICAL WOI:KERS, LOCAL 266-B, AFL and LEO STURDIVANT SALT RIVER VALLEY WATER USERS ASSOCIATION, AN ARIZONA CORPORA- TION and A. E. ARC FIE, R INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, LOCAL 266-B, AFL and A. E. ARCHER. Cases Nos. 21-CA-963, 21-CB-312, 21-CA-991, and 21-CB-318. June 24,1952 Decision and Order On June 19, 1951, Trial Examiner Wallace E. Royster issued his Intermediate Report in the above-entitled proceeding finding that the Respondent Association had engaged in and was engaging in 99 NLHR No. 129. 850 DECISIONS OF NATIONAL LABOR RELATIONS BOARD certain unfair labor practices' 'arid r' ecommending that it I cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Intermediate Report, attached hereto. The Trial Examiner also found that the Respondent Union had not engaged in the unfair labor practices' alleged iii the consolidated complaint and recommended dismissal of those allegations. Thereafter, the Re- spondent Association and the `Generat Counsel filed exceptions and supporting briefs, and the Respondent Union filed a statement in support of the Intermediate Report.' ` - 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 affirmed. The Board has considered the Intermediate Report,' the exceptions and briefs, andthe'entire record in the case,. and adopts certain of the findings' of fact, conclusions, and recom- mendations of the Trial Examiner and rejects others. Our additions, and modifications are discussed below.` The Board's Jurisdiction 1. We agree with the Trial Examiner that the Association is en- gaged in activities affecting commerce within the meaning of the Act. We have previously considered the interstate character of the Asso- ciation's operations. Salt River Valley Water Users Assn., 32 NLRB 460. The Association contends here, however, that, since 1949, the As- sociation has conducted irrigation operations only, and that these irri- gation operations are not subject to the Board's jurisdiction. It rests this contention on 1949 amendments to a contract between it and, the' Salt River Project Agricultural Improvement and Power District (hereafter referred to as the-District), transferring to the District the operation of the electric power system previously operated by the Association. We hold that the Association's irrigation operations are within the purview of the Act. The Association operates and maintains the irrigation system for the 242,000 acres of land in the Salt River 1 The Respondent Association has requested oral argument . In our opinion the record, the exceptions, and briefs fully present the issues and the position of the parties. - Accordingly , this request is denied. 2 We correct certain inadvertencies in the Intermediate Report. In discussing the business of the Association , the Trial Examiner said that Don Barrett , sales manager of a Phoenix , Arizona, packing and shipping company , testified that his employer packed a substantial amount of lettuce for interstate shipment . The witness' testimony referred to all produce packed by his employer and not lettuce alone. This correction does not detract from the Trial Examiner's basic finding that the Association, in supplying water, is performing a service essential to the raising of crops, of which substantial amounts find their way into channels of interstate commerce. The reprint of the petition circulated by employees Leo Sturdivant and A E Archer is correct in substance and effect . The original admitted in evidence discloses , however, that the terms "I/we," "me/us," and "my/our" were used at points where "we," "us" or "our," respectively , appear In the Intermediate Report ' s quoted version. SALT RIVER VALLEY WATER USERS ASSOCIATION 851 Valley, 213,000 of which are under irrigation. Its operating revenue for the irrigation project in 1949 exceeded $3,300,000. In 1950, it purchased locally supplies amounting to more than $46,000, 90 per- cent of which originated outside the State. The value of crops grown on the Project in 1950, with the aid of irrigation, was approximately $33,000,000. The irrigation plant facilities are valued in excess of $16,000,000. The record shows that in the 1949 and 1950 seasons a substantial amount of lettuce was shipped out of Arizona from the Salt River Valley.3 In addition, the sales manager of a Phoenix,, Arizona, packing and shipping company, Don Barrett, testified that all but 150 of the 1,500 cars of produce grown on Association lands and packed by his employer in 1950 were destined for out-of-State ship- ment. It strains credulity to ignore Respondent Association's irri- gation operations in assessing its close and substantial contribution to the products intended for interstate shipment. Indeed, a record exhibit, the June 1, 1950, biennial report to the shareholders of the Association and the District, recognizes this. Its introductory page carries an excerpt which reads in part : "The importance of the Water Users' Association cannot be overemphasized. It affects the daily life of everyone in Arizona. . . . This agricultural empire created by the Reclamation Act of 1902 is the basic industry for the entire state of Arizona. Every city in the state, every citizen, every school district, every individual enterprise is dependent upon the con-' tinuing prosperity of the irrigated farm lands." 4 In view of the mag- nitude of the reclamation project and the enormous value of the crops grown for out-of-State shipment, any interruption to the Association's continuous operation undeniably must form an impediment to the free flow of commerce. The Board's policy of asserting jurisdiction over 3 Marketing Arizona Salt River Valley Lettuce, Summary of 1949 Fall and 1950 Spring Seasons. U. S Dept. of Agriculture Production and Marketing Administration (April 1950.) 4 The Respondent Association's argument that there is no showing of the exact amount or percentage of water supplied to its shareholders does not alter our conclusion Un- deniably, crop growth is dependent upon the Association's irrigation function There appears to be some private pumping of underground water. (seepage from irrigation), but the Association's bylaws show that this is under the Association's strict supervision The Association's bylaws declare that the underground water "is maintained largely by seepage from the irrigation works and percolations from irrigation on the project," that this water is subject to recapture by the United States or the Association, and that the Association "will from time to time pump water from such underground water supply to add to the supply of developed water available for use on the project." Pumping of the underground water supply is permitted to the individual for use on his land, "provided by so doing he does not use more than his fair proportion of water or does not prejudice or diminish the supply of the Association for project purposes or the right of other shareholders to pump from the underground supply for the benefit of their lands on an equality with the other lands of the project." The bylaws further provide: "In order that the rights of the Association and its shareholders may be protected in the under- ground supply, the installation and operation of all pumps pumping from said supply for irrigation purposes for the benefit of individual shareholders shall be subject to rules and regulations adopted by the Board of Governors of the Association." Other sections of the bylaws provide for construction, operation , and maintenance of the pumps under Association supervision. 852 DECISIONS OF NATIONAL LABOR RELATIONS BOARD comparable projects in the nature of public utilities will not be de- parted from in this case.5 But water is not only supplied by the Association to shareholders raising crops for interstate shipment. As described by the Trial Examiner, water is furnished to the Phelps Dodge Corporation for use in connection with interstate copper mining operations at Morenci, Arizona.6 The treasurer of both the District and the Association, Daniel Boone, testified that the arrangement with Phelps Dodge pro- vided that if the water removed "would have otherwise flowed through a dam that would have made electricity for our purposes, then they pay us a fee for the electricity that was not generated and therefore lost to the project because . . . the water did not flow through the dams." In 1950 Phelps Dodge paid the Association approximately $33,000 for such power losses. That the Association, and not the Dis- trict, controls the 1944 contract arrangement with Phelps Dodge is further evidenced by the December 4, 1950, minutes of the Associa- tion's board of governors at which consideration was given to a pro- posal by Phelps Dodge Corporation to advance $1,500,000 without interest to line various canals in return for certain water uses. Moreover, assuming that the 1949 amendments to the contract be- tween the Association and the District effected a separation of the electric power operations from the Association, we find that the Asso- ciation's functions are necessary for the District's continued power supply. The June 1, 1950, biennial report, mentioned above, shows income from the sale of electric power for a 2-year period amounting to nearly $17,000,000. Electric power is supplied to such enterprises as Inspiration Consolidated Copper Company," Magma Copper Com- pany, Central Arizona Light and Power Company, municipalities, and other industrial users. In 1949, 49.5 percent of the District's power supply was purchased energy, while the remainder of power was generated or supplied by the Project system. As shown by Project reports, the conservation of the water resources utilized in the irrigation operations have a direct effect on the power system. And the 1949 amendatory contract between the Association and the District expressly provides that the Association, as agent for the Dis- trict, shall operate and maintain the irrigation and drainage system 5 W. C. King d/b/a Local Transit Lines, 91 NLRB 623; Plymouth Electric Cooperative Association, 92 NLRB 1183; Twin Falls Canal Company, 97 NLRB 1473, Black River Electric Cooperative, 98 NLRB 539. O The 1944 contract between the parties contained this clause among the various other preliminary recitals to the agreement , "WHEREAS, copper is a strategic material and its production in adequate quantities is essential to the successful prosecution of the war in which the United States is now engaged :" For it more detailed description of the broad interstate scope of operations carried on by this corporation, see Phelps -Dodge Corporation, 69 NLRB 536; 40 NLRB 180, 182. 'The Board has repeatedly noted the interstate character of the operations of this corporation Inspiration Consolidated Copper Company, 44 NLRB 1160, 1162-1163; 49 NLRB 751, 752; 63 NLRB 679, 680. SALT RIVER VALLEY WATER USERS ASSOCIATION 853 for the use and benefit of the District and its lands. It further pro- vides that whenever the District shall determine that it is in the best interests of the lands of the District for any capital additions to or replacements of the irrigation and drainage system property to be made, that the Association shall perform, or cause to be performed, all work required, unless the District decides otherwise. Close coop- eration in the conservation of water to protect the Project is assured by the 1949 amendments. Any decrease in agricultural pumping-as occurred in 1949, according to the power operations report of 1949- effects a saving in the power system losses. The importance of the irrigation operations in this regard is shown by the irrigation opera- tions report of that same year. The report shows plans under con- sideration to induce artificial rainfall, and comments : "As all water developed above the hydro lakes will add to our power revenue this work gives great promise of aiding increase in power income." The record thus clearly shows that the irrigation operations play an indis- pensable part in the interstate power system operations. The Unfair Labor Practices 2. We adopt the Trial Examiner's finding that employee Leo Sturdi- vant was discharged for circulating petitions among the zanjeros, designating Sturdivant as agent to take any action necessary to collect back wages allegedly owing the zanjeros under the Fair Labor Stand- ards Act of 1938, as amended. We find the discharge a violation of Section 8 (a) (1) of the National Labor Relations Act, but do not adopt the Trial Examiner's conclusion that the discharge also consti- tuted a violation of Section 8 (a) (3). The Respondent Association argues that Sturdivant's activity was not "concerted" within the meaning of Section 7, because Sturdivant acted alone in circulating the petition; and that this activity was not for "mutual aid or protection," because the statutory rights under the Fair Labor Standards Act are individual rights not increased by joint action. The Board has recently reaffirmed the principle that an activity may be concerted although it involves only a speaker and a listener. Group action is not deemed a prerequisite to concerted activity, for the reason that a single person's action may be the preliminary step to acting in concert.8 As to the Respondent Association's second con- tention, joint action may of course assist in financing a suit for back pay, the end effect of which may be for mutual aid or protection. And even if only the lesser authority mentioned in the petition were exercised, that of "negotiation, settlement and/or compromise" to obtain back wages, mutual aid or protection would appear to be at ° Office Towel & Supply Company, 97 NLRB 449; Root-Carlin Inc., 92 NLRB 1313, 1314. 215233-53-55 854 DECISIONS OF NATIONAL LABOR RELATIONS BOARD stake.9 We find that Sturdivant's circulation of the petitions was an activity protected under Section 7, that the Association discharged Sturdivant for engaging in such activity, and that his discharge vio- lated Section 8 (a) (1) of the Act. The Respondent Association does not contest the fact that Sturdi- vant's discharge was occasioned by his circulating the petitions. It contends, however, that Sturdivant was discharged because he created a "disturbance" among his fellow employees and not because he circu- lated the petition; that the discharge was justified even if there was no disturbance, as the Respondent Association reasonably thought that this was the fact. The record is barren of credible evidence that any single zanjero's work, including that of Sturdivant, suffered by neglect. In the ab- sence of proof that there was actual disruption in the work, the Board has viewed the assertion of comparable reasons as evidence of an em- ployer's discriminatory intent 10 The Board has also held that if an employee's activity otherwise falls within the Act's protection, an em- ployer's good faith in discharging the employee cannot serve to justify the discharge 11 We find it unnecessary to decide whether the Association's action in discharging Sturdivant also violated Section 8 (a) (3) of the Act and do not adopt the Trial Examiner's finding of an 8 (a) (3) viola- tion. We therefore dismiss that part of the complaint alleging a violation of Section 8 (a) (3) with respect to Sturdivant. 3. We reverse the Trial Examiner's finding that the Association dis- criminated against A. E. Archer in violation of Section 8 (a) (3) of the Act. The record supports the Trial Examiner's finding that Archer was not discharged or laid off because of his participation in circulating the petitions, but rather was laid off for failure to bid on a job vacancy, and that the Association did not violate the Act in this regard. Unlike the Trial Examiner, however, we find that Archer's eviction from the Association-owned house and the Association's fail- ure to notify him of subsequent job vacancies did not stem from his activities in circulating the petitions and therefore did not violate Section 8 (a) (1) or 8 (a) (3). The record does not show that the °N. L. R. B. v. Nu-Car Carriers, Inc., 88 NLRB 75, enforced 189 F . 2d 756 (C. A. 3), certiorari denied 342 U. S. 919; Smith Victory Corporation, 90 NLRB 2089, enforced 190 F 2d 56 ( C A 2) ; Spandsco Oil d Royalty Company, 42 NLRB 942. This is not the kind of situation where a petition is circulated for spiteful or personal reasons. See for example, Joanna Cotton Mills v. N. L. R. B., 176 F. 2d 749 (C. A. 4). 10 Rome Specialty Co , Inc., 84 NLRB 55, 57; Gulfport Transport Company, 84 NLRB 613, 615; F. W. Woolworth Company, 90 NLRB 289, 290. "American Shuffleboard Co. v. N. L R. B, 190 F. 2d 898 (C. A. 3), enforcing 92 NLRB 1272. The court's statement was : "To adopt petitioner's view would materially weaken the guarantees of the Act, for the extent of employees' protected rights would be made to vary with the state of the employer's mind. We conclude that if the conduct giving rise to the employer's mistaken belief is itself protected activity, then the employer's erroneous observations cannot justify the discharge." SALT RIVER VALLEY WATER USERS ASSOCIATION 855 Association had any knowledge of Archer's part in circulating the petitions." Nor are we satisfied that the record supports a finding that Archer had any rights as a laid-off employee to remain in the As- sociation-owned house, or to be notified of vacancies by written notice sent to his last known place of residence. The sparseness of the rec- ord evidence on these issues may well be attributed to the fact that they were not among the issues framed by the complaint which the Respondent Association had an opportunity to answer 13 We there- fore dismiss that part of the complaint alleging that the Association violated the Act with respect to Archer. 4. We find, in agreement with the Trial Examiner, that the Re- spondent Association violated Section 8 (a) (1) in the remarks made by its watermaster, S. H. Angle, to employee H. C. Selleizl4 The conversation between Selleiz and Angle, culminating in Angle's pro- posal to remove Selleiz' name from the petitions, was clearly an inter- ference with the exercise of the employee's right to engage in con- certed activity which we have held above is protected by Section 7 of the Act. 5. On this record we find no violation of Section 8 (b) (2) by the Respondent Union. The Trial Examiner's conclusion, excepted to by the General Counsel, that the Union did not cause or attempt to cause the discharge of either Sturdivant or Archer, is borne out by the record. True, the Union's business agent, Frank R. Hill, advised the Association's board of governors that the Union did not condone the petition. The Union also sent a letter to the Association telling it that the action of "certain" zanjeros in circulating the petition did not represent union policy. Aside from this letter, there is no evidence in the record that gives rise to any inference that the Union requested either Sturdivant's or Archer's termination. The letter further in- formed the Association that the Union's executive board had decided to take punitive action "against the individual given the power of attorney on these petitions." All witnesses who attended the board of governors' meeting denied that any request was made for Sturdi- vant's or Archer's discharge. The Association's general manager testified too that no request was made of him to discharge these em- ployees. Accordingly, we adopt the Trial Examiner's recommenda- tion and dismiss the complaint allegations that the Respondent Union violated Section 8 (b) (2) of the Act. 6. We find, contrary to the Trial Examiner, that the remarks of Frank R. Hill, chairman of the Union's executive committee, on No- 12 All Association witnesses who testified on this point said that they were aware only of Sturdivant's participation and had no knowledge of Archer circulating the petitions. This testimony was unrefuted. 12 Pinkerton'a National Detective Agency, Inc., 90 NLRB 205, 206. 1+ Member Murdock, however, would find that watermaster Angle's remarks to Sellelz did not interfere with the employee's statutory rights. 856 DECISIONS OF NATIONAL LABOR RELATIONS BOARD vember 6, 1950, to employee John H. Tait and on November 2 to em- ployee J. W. Webber constituted a violation of Section 8 (b) (1) (A) by the Respondent Union. Tait testified that Hill asked him whether he had signed the peti- tion, and that when Tait answered in the affirmative, Hill remarked, "I assume by this that you want to lose your job?" When Tait answered, "No," Hill said, "You better get your name off that d thing." Both then went to the office of the Association's superintendent of wa- ter distribution for the purpose of Tait writing a memorandum to the superintendent advising him of the withdrawal of Tait's name from the petition. During this trip to the office, according to Tait, Hill "made mention of the fact that all the signers of that petition would get canned." Employee Webber testified without contradiction that Hill asked him to remove his name from the petition and, when he declined to do so, Hill said, "Well, I am telling you as a friend I would like for you to take your name off before it is too late." The General Counsel excepts to the Trial Examiner's finding that these acts do not "restrain or coerce" the employees questioned within the meaning of Section 8 (b) (1) (A). We cannot interpret Hill's statements, as did the Trial Examiner, merely as "predictions of action" that might be taken by the Association. We believe that a threat of job loss was intended and understood by the employees to whom the statements were made 15 Moreover, when these remarks are considered in the context of the union-security clause then in effect in the contract between the Union and the Association, their implica- tion is clear.16 The clause provided that a member could be dis- charged on union notification to the Association that the member was not in good standing. An employee might reasonably believe that the Union could affect adversely his job security by such notifi- cation. But regardless of the effect of this clause, Hill's statements could have been intended only as a veiled threat, and we construe them to fall within the restraint and coercion prohibited by Section 8 (b) (1) (A) of the Act. The Remedy Having found that the Respondents have engaged in certain unfair labor practices within the meaning of Section 8 (a) (1) and Section 15 Seamprufe, incorporation, 82 NLRB 892, 894 ; Painters' District Council No. 6, et al., 97 NLRB 654; Fox Midwest Amusement Corporation , 98 NLRB 699 1e The Trial Examiner erroneously assumed that the union contract in effect in November 1950 did not contain a union-security clause. It was a later contract between the Associa- tion and the Union, effective January 2, 1951 , that did not contain the clause. SALT RIVER VALLEY WATER USERS ASSOCIATION 857 8 (b) (1), we shall order the Respondents to cease and desist there- from and take certain affirmative action designed to effectuate the policies of the Act. Having found that the Respondent Association discriminatorily dis- charged Leo Sturdivant on November 7, 1950, because he engaged in a protected concerted activity, we shall direct the Respondent to offer him immediate and full reinstatement and make him whole for any loss of pay he may have suffered by reason of the discrimination, in the manner set forth in the Intermediate Report. In view of the nature of the unfair labor practices committed, par- ticularly the discriminatory discharge of Leo Sturdivant, a type of unfair labor practice which goes to the heart of the Act, we shall order the Respondent Association to cease and desist from such acts and from interfering in any other manner with the rights of employees guaranteed in Section 7 of the Act. It also having been found that the Respondent Union restrained and coerced employees in the exercise of rights guaranteed them in the Act, we shall order the Respondent Union to cease and desist from such conduct. 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. The Respondent, the Salt River Valley Water Users Associa- tion, its officers, agents, successors, and assigns, shall : (a) Cease and desist from: (1) Discouraging concerted activity having for its purpose the recovery of back wages and overtime payments, by discharging, refusing to reinstate, or otherwise discriminating against any of its employees because of their concerted activities. (2) In any other manner interfering with, restraining, or coercing its employees in the exercise of the rights to engage in concerted activities for the purpose of mutual aid or protection as guaranteed in Section 7 of the Act, or to refrain from any or all of such activities, except to the extent authorized by Section 8 (a) (3) of the Act. (b) Take the following affirmative action, which the Board finds will effectuate the policies of the Act : (1) Offer to Leo Sturdivant immediate and full reinstatement to his former or substantially equivalent position without prejudice to his seniority or other rights and privileges, and make him whole for any loss of pay he may have suffered by reason of the Respondent Association's discrimination against him, in the manner set forth in section V of the Intermediate Report entitled "The Remedy." 858 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (2) Upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security pay- ment records, time cards, personnel records and reports, and all other records necessary to analyze the amount of back pay due and the right of reinstatement under the term's of this Order. (3) Post at its office in Phoenix, Arizona, and at other points within the project, copies of the attached notice marked "Appendix A." 17 Copies of said notice, to be furnished by the Regional Director for the Twenty-first Region, shall, after being duly signed by the Respondent Association's representative, be posted immediately upon receipt thereof and maintained by it for sixty (60) consecutive days in conspicuous places, including all places where notices to zanjeros are customarily posted. Reasonable steps shall be taken by the Associa- tion to assure that said notices are not altered, defaced, or covered by any other material. (4) Notify the Regional-Director, in writing, within ten (10) days from the date of this Order, what steps have been taken to comply therewith. 2. The Respondent, International Brotherhood of Eelectrical Workers, Local 266-B, AFL, its officers, representatives, agents, suc- cessors, and assigns, shall: (a) Cease and desist from : (1) Threatening employees with economic reprisal for engaging in concerted activity having for its purpose the recovery of back wages and overtime payments or, in any like or related manner, restraining or coercing employees in the exercise of the right to engage in con- certed activities as guaranteed in Section 7 of the Act, or to refrain from any or all of such activities. (b) Take the following affirmative action which the Board finds will effectuate the policies of the Act : (1) Post at its office in Phoenix, Arizona, and at other places where notices to members are customarily posted, copies of the notice at- tached hereto and marked "Appendix B." Copies of said notice, to be furnished by the Regional Director for the Twenty-first Region, shall, after being duly signed by the Respondent Union's representa- tive, be posted immediately upon receipt thereof and maintained by it for sixty (60) consecutive days in conspicuous places, including all places where notices to zanjeros are customarily posted. Reasonable steps shall be taken by the Union to insure that said notices are not altered, defaced, or covered by any other material. 17 In the event that this Order or any Order herein 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, En- forcing an Order." SALT RIVER VALLEY WATER USERS ASSOCIATION 859 (2) Notify the Regional Director, in writing, within ten (10) days from the date of this Order, what steps have been taken to comply therewith. IT IS FURTHER ORDERED that these allegations. of the complaint are dismissed : (1) That the Respondent Association did lay off or discharge A. E. Archer in violation of Section 8 (a) (1) and 8 (a) (3) of the Act; (2) that the Respondent Association discharged Leo Sturdivant in violation of Section 8 (a) '(3) ; (3) that the Respondent Union at- tempted to cause and caused the discharge of Leo Sturdivant and A. E. Archer in violation of Section 8 (b) (2) of the Act. Appendix A NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, we hereby notify our employees that : WE WILL NOT discourage our employees from engaging in con- certed activity, having for its purpose the recovery of back wages or overtime payments, by discharging or refusing to reinstate any of our employees, or by discriminating in any other manner in regard to their hire and tenure of employment, or any term or con- dition of employment. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of rights guaranteed them in Section 7, except to the extent authorized by Section 8 (a) (3) of the Act. WE WILL offer to LEO STURDIVANT immediate and full rein- statement to his former or substantially equivalent position with- out prejudice to any seniority or other rights and privileges previously enjoyed, and make him whole for any loss of pay suffered as a result of the discrimination against him. SALT RIVER VALLEY WATER USERS ASSOCIATION, Employer. 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. 860 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Appendix B NOTICE To ALL MEMBERS OF INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, LOCAL 266-B, AFL Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, we hereby notify you that : WE WILL NOT threaten employees of the SALT RIVER VALLEY WATER USERS AssocIATloN with loss of employment because of their engagement in concerted activity having for its purpose the recovery of back wages or overtime payments. WE WILL NOT in any like manner restrain or coerce the afore- mentioned employees in the exercise of rights guaranteed them by Section 7 of the Act, except to the extent authorized by Section 8 (a) (3) of the Act. INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, LOCAL 266-B, AFL 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. Intermediate Report and Recommended Order STATEMENT OF THE CASE Upon separate charges duly filed by Leo Sturdivant and A. E. Archer against Salt River Valley Water Users Association, herein called the Association, and against International Brotherhood of Electrical Workers, Local 266-B, AFL, herein called the Union, the General Counsel of the National Labor Relations Board, herein called, respectively, the General Counsel and the Board, caused the cases to be consolidated and issued his complaint, dated April 12, 1951, against the Association and the Union, alleging violations of the National Labor Relations Act, as amended, 61 Stat. 136, herein called the Act, within the mean- ing of Section 8 (a) (1) and (3), and 8 (b) (1) (A) and (2) and Section 2 (6) and (7). Copies of the charges, the consolidated complaint, the order consolidat- ing the cases, and the notice of hearing were duly served upon the Association, the Union, Sturdivant, and Archer. With respect to unfair labor practices, the complaint alleged in substance that on November 7, 1950, the Union caused the Association discriminatorily to discharge Sturdivant, and on December 7, Archer. Further, according to the complaint, the Union restrained and coerced employees of the Association in the exercise of rights guaranteed in Section 7 of the Act by interrogating such em- ployees concerning concerted activities and threatening employees with discharge or other disciplinary action unless they refrained from engaging in concerted activities and threatening employees with loss of union membership unless they SALT RIVER VALLEY WATER USERS ASSOCIATION 861 so refrained. The complaint finally alleges that the Association discharged Sturdivant and Archer for discriminatory reasons in'-violation of the Act and unlawfully interrogated and threatened employees in respect to their con- certed activities. The Association's answer, dated April 16, 1951, denies all of the material al- legations in the complaint, denies that it is engaged in commerce within the meaning of the Act, and denies any violation of the Act with respect to the dis- charge of Sturdivant and Archer or in connection with any interrogation of em- ployees. The Union's answer, verified April 23, 1951, denies the commission of unfair labor practices. Pursuant to notice, a hearing was held in Phoenix, Arizona, before the under- signed Trial Examiner from May 1 through May 8, 1951. All parties were rep- resented by counsel, participated in the hearing, and were afforded full oppor- tunity to examine and cross-examine witnesses, and introduce evidence pertinent to the issues. At the close of the General Counsel's case-in-chief, I denied mo- tions made by the Association and the Union to dismiss the complaint in whole or in part. When such motions were renewed at the close of the hearing, I reserved ruling. These motions are disposed of in the body of this Report. All parties were given until May 28 for the purpose of filing briefs. A brief has been received from counsel for the General Consel1 Upon the entire record in the case and from my observation of the witnesses, I make the following : FINDINGS OF FACT 1. THE BUSINESS OF THE ASSOCIATION The Association is a mutual, nonprofit corporation, organized in 1903 under the corporation laws of the Territory of Arizona. It operates a Federal recla- mation project, known as the Salt River Project, herein called the Project, in south central Arizona, and has its principal office in Phoenix. The Association is an association of landowners whose property lies within the geographical boundaries of the Project and who have subscribed to the Association's articles of stock. In 1904 the Association entered into a contract with the United States pro- viding for the construction of the Project works by the United States and guaranteeing the repayment by the shareholders to the United States of the cost of construction. Pursuant to the terms of the contract, the United States acquired existing irrigation works in the Salt River Valley from various canal companies, converted them into one system of irrigation, and constructed Roose- velt Dam, diversion dams and power plants, power lines, and drainage and irrigation pumps. In 1917 the United States turned over to the Association the care, operation, and maintenance of the Project by a contract wherein the Association agreed to repay to the United States the cost of construction over a period of years. The contract is still in effect and payments are currently being made to the United States under its terms. In 1937 the Association entered into a contract with the Salt River Project Agricultural Improvement and Power District, herein called the District, a corporation organized by the shareholders of the Association in that year. The District has the same boundaries and interests as the Association. By this agreement the Association turned over all its physical assets to the District, agreed to continue the opera- 1 As requested in this brief, the transcript is hereby corrected to show the admission in evidence of General Counsel 's Exhibit 15. 862 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tions which it had hitherto performed, and to turn over its receipts to the District. In turn the District agreed to meet all of the financial commitments of the Association to all creditors, including the United States. The execution of this contract did not for a number of years result in any outward change in the business of the Association. It continued as before to deliver water to its shareholders and to sell the electricity incidentally generated. Effective Novem- ber 1, 1949, the Association caused, by means of a contract between it and the District, the separation of its functions in such a fashion that from that date the Association has confined itself entirely to the delivery of water to its share- holders. The District has since then been the active and effective operator of all power phases of the business. The purpose of this separation, as set forth in the biennial report to shareholders, dated June 1, 1950, over the signature of R. D. Searles, president of both the Association and the District, was to achieve certain economies, to place the District and the Association in such a situation so that neither would be subject to State or Federal income tax, to enable the District to obtain first priority on power generated on the Colorado River, and to remove the power system from the jurisdiction of the Arizona Corporation Commission. The District furnishes the Association with all power necessary to the opera- tion of facilities used in connection with the delivery and pumping of water and sells its surplus power to the Arizona Power and Light Company and to Inspira- tion Copper Company, among others. The Association, ostensibly as agent for the District, has since 1944 been under a contractual relationship with Phelps Dodge Corporation in connection with copper mining operations at Morenci, Arizona, whereby the Association permits Phelps Dodge to remove water, appro- priated to the shareholders of the Association, from the Black River in exchange for water developed by Phelps Dodge by means of construction of a storage dam on the Verde River. Additionally, Phelps Dodge pays to the Association an amount equal to the value of the power presumed to be lost by the removal of the water from the Black River.' Shareholders in the Association are owners of approximately 242,000 acres of land in the Salt River Valley. In 1950, 213,000 acres of this land was under irrigation and supplied with water by the Association. During the same year, shareholders served by the Association raised crops bringing to the shareholders a gross return of approximately $37,000,000. The income of the Association from irrigation in 1949 was in excess of $3,300,000 and the budget estimate of such income for 1951 is approximately $2,750,000. One of the principal crops raised within the area served by the Association is lettuce. In the spring of 1950, 10,042 acres of such land was in production of lettuce and the yield for that season amounted to about 4,770 carloads valued at about $2,600,000. A report of the United States Department of Agriculture concerning the marketing of lettuce grown in the Salt River Valley shows that in the 1950 spring lettuce season only 5,986 cars of lettuce were loaded in the entire Salt River Valley. Don Barrett, sales manager of a packing and shipping company at Phoenix, testified that his employer packed about 1,500 cars of lettuce in 1950, all but about 150 of which were destined for points outside the State of Arizona. All shipments made by Barrett's company were of lettuce grown on lands served by the Association. A car of lettuce has a value, depending upon the market, of approximately $600. Also in 1950, shareholders on lands served by the Association produced more than 28,000 bales of cotton having a value in excess of $6,000,000. The United States Department of Agriculture estimates that 440,000 bales were produced in 2 Both the Black River and the Verde are tributaries of the Salt River. SALT RIVER VALLEY WATER USERS ASSOCIATION 863 the State in that year. The record contains no evidence pertaining to the shipment of cotton, but the lack of any important textile industry in Arizona s compels the conclusion that the cotton must be shipped to mills outside the State. The position of the Association that it is not in commerce, or in an activity affecting commerce, may not be sustained. By delivering water to shareholders who farm approximately 213,000 acres of irrigated land, the Association is performing a service essential to the raising of crops some of which in substan- tial amounts find their way into channles of interstate commerce. Clearly, any interruption in the operation of the Association would have a consequential effect upon commerce. I find, upon the basis of the delivery of water alone, that the operations of the Association affect commerce within the meaning of the Act. Additionally I find that, through the District, the Association is in the business of generating and distributing electricity to its shareholders and to various industrial users. The Association, also through the District, is a substantial purchaser of electrical energy generated by the Bureau of Recla- mation on the Colorado River. II. THE ORGANIZATION INVOLVED International Brotherhood of Electrical Workers, Local 266-B, is a labor organization affiliated with the American Federation of Labor, admitting to membership employees of the Association. III. THE UNFAIR LABOR PRACTICES For a number of years the Union has been the bargaining agency for sub- stantially all of the employees of the Association, including zanjeros who turn water into the lands of shareholders. Each zanjero is in charge of a geographi- cal area for which he is responsible in connection with the flow of water 24 hours a day, 7 days a week. The Project is divided, for purposes of supervision at least, into 4 areas, each headed by a watermaster who supervises about 16 zanjeros. The work of a zanjero is of an intermittent nature, but they may not absent themselves from their divisions for a period in excess of 2 hours without permission from the watermaster. For several years some zanjeros have questioned the amount of their wages and the method of calculating them. Some have asserted that the Association has failed to pay to them an amount which the Fair Labor Standards Act of 1938, as amended, requires. This matter has been on several occasions a mat- ter for discussion in union meetings. In February of 1950, after the Fair Labor Standards Act was amended to require a minimum wage of 75 cents per hour, interest in the subject was renewed and when the Union began bargaining with the Association in the summer of 1950, looking toward the negotiation of a new contract to succeed the current one, it was asserted on the part of the union negotiators that the Association would have to raise the wage rates of zanjeros in order to comply with that statute. Apparently dissatisfied with the progress reported by the negotiators, some zanjeros began to enlist the support of others in a movement to recover back pay and overtime wages from the Association. In late October Leo Sturdivant and A. E. Archer circulated a petition among their fellow zanjeros headed "Designation of Agent and Power of Attorney," reading as follows : We, individually and jointly, each of us being employed by the Salt River Valley Waters Users Association, a corporation, as a zanjero, and believ- a The 1947 census of manufacturers published by the Bureau of Census , United States Department of Commerce, lists no cotton manufacturers in the State. 864 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ing that our employer has failed to pay us as required by the contract be- tween said employer and Local Union B-266, International Brotherhood of Electrical Workers and believing that our employer has failed to pay us as provided by and required by the Fair Labor Standards Act of 1938, as amended, and believing that our employer is indebted to us for unpaid regular wages, unpaid overtime wages and liquidated damages, do hereby' appoint, designate and employ Leo i8turdivant, P. O. 378, Mesa, Arizona a fellow employee, as agent and attorney in fact with full and complete right, power and authority to take any and all actions necessary to recover for us said monies, whether by way of suit or negotiation, settlement and/or compromise, and we do hereby further appoint, designate and employ said Leo Sturdivant, as agent and attorney in fact, with full and complete right, power and authority to employ and engage an attorney at law or attor- neys at law, to handle the foregoing in its entirety and to represent us, on such terms and conditions as may be agreed to by and between said Leo Sturdivant and said attorney (s). Signed this 26th day of October, 1950, at Phoenix, Arizona. In a period of several days Sturdivant and Archer secured the signatures of 30 or 35 zanjeros to the petition. Both the Union and the Association soon heard of this activity, and the Union moved quickly to action. On November 1 the ex- ecutive board of that organization met to discuss this development, and, not- ing that such activity constituted a violation of the union oath; that punitive action might be taken against the signers, voted that all members who had signed the petitions be called upon to explain their action. The board decided, also, to notify the Association that the petition was without the sanction of the Union. On November 5, at a general meeting of the Union, Sturdivant and Archer explained why they had resorted to the circulation of the petitions and, hearing the criticism of the appearance of the Union's name in the caption, agreed to delete any reference to the Union. Sturdivant was instructed at this meeting to secure the petitions and bring them to a later meeting that same day for destruction. Sturdivant appeared at the second meeting, but stated that he was unable to secure the return of the petitions. The executive board voted that Sturdivant be required to appear before it to answer charges and its chair- man, Frank R. Hill, told Sturdivant that the latter would be discharged in 3 days. The following morning representatives of the Union, including the presi- dent and secretary and an international representative, Alfred Shackleford, met with the board of governors for the Association. Shackleford told the governors that the Union disavowed any such action as the signers of the petitions con- templated and that he hoped that the bargaining position of the Union had not thus been prejudiced. On November 6 Frank R. Hill asked zanjero John H. Tait if he had signed the petition. When Tait answered that he had, Hill remarked that unless Tait wanted to lose his job, he had better remove his name from the petition as all signers would be fired. Hill and Tait then went to an office of the Associa- tion where Tait wrote a note indicating his desire to have his name removed from the petition. J. F. Chambers, the Association's chief clerk, was present in this office, but the evidence does not persuade we that he participated in any way in the conversation between Hill and Tait, or that he was aware of the nature of the transaction. On November 2, Hill asked zanjero J. W. Webber if the latter had signed the petition. Webber answered that he had and Hill then asked Webber if he would remove his name. When Webber declined to do so, Hill remarked, "Well, I am telling you as a friend I would like for you to take your name off before it is too late." SALT RIVER VALLEY WATER USERS ASSOCIATION 865 Contemporaneously, Roderick McMullin, the general manager of the Associa- tion, having learned that petitions were being circulated among the zanjeros, instructed E. L. Wilson, superintendent of water distribution, to make an investigation in that connection. Wilson reported that Sturdivant was the one primarily engaged in the circulation and that watermasters and zanjeros had reported seeing Sturdivant engaged in this pursuit at various places about the Project. McMullin testified that, in the belief that the circulation of the petition was causing unrest and disturbance among the zanjeros and possibly lowering their efficiency, he decided to discharge Sturdivant, but recalling that Sturdivant in May of 1948 had been discharged and then almost immediately reinstated by the action of some members of the Association's board of governors, decided to tell the board of his decision. He did so in the same meeting in which repre- sentatives of the Union had disclaimed any sponsorship for the circulation of the petitions. The board approved McMullin's proposed action. So, on Novem- ber 7, Sturdivant was notified that he was discharged. His discharge slip states that he was fired because he was "an unsatisfactory employee." McMullin testified that Sturdivant was unsatisfactory in that he was "creating consider- able disturbance among the zanjeros" by circulating the petition. Clearly, the discharge of Sturdivant was discriminatory. He had a right to urge his fellow zanjeros to join with him in a movement to secure payment of wages and overtime which Sturdivant apparently believed was due them. It is true that the testimony of the union witnesses is largely to the effect that Sturdivant was invading a province in which the Union was already in negotia- tion with the Association. However the flavor of such testimony is really that the Union was seeking to have the Association raise wages to the amount which the Union believed the law required, and not to obtain anything for hours already worked. Sturdivant's purpose was wider. He was attempting to obtain for himself and others similarly situated a sum of money from the Association allegedly due because of work performed in the past. Even if it were true that Sturdivant was attempting to plow the same ground as the Union, it would not remove his activity from the protection of the Act. Although the Union was the exclusive bargaining representative and the Association could not deal with any other, as such, Sturdivant's right to participate in a concerted activity having for its purpose the obtaining of back wages, is such an activity for which an employee may not be discriminated against.' No doubt the circulation of the petition and the discussions which unquestionably accompanied the circulation did occasion some disturbance, some questioning, and argument among the zanjeros, but the record is totally lacking in any evidence which even tends to prove that the zanjeros were in any substantial way interfered with in the performance of their duties. As has been stated, zanjeros' duty hours are all hours. So that it might reasonably be asserted by the Association, and perhaps is so asserted here, that any time that Sturdivant took in getting signers for the petition necessarily took place on time for which the Association paid him, and the same of course would be true with respect to any zanjero with whom he spoke. But there was no rule and as a practical matter of course there could not have been, which had the purpose or effect of preventing zanjeros from visiting with others as long as their work was not neglected. I find that Sturdivant was discharged by the Association on November 7 because he had been circulating a petition in connection with back wages. As the circulation of the petition was a protected concerted activity, it follows that Sturdivant's discharge for engaging in such activity was in violation of the Act; 4 Spandsco Oil cE Royalty Company, 42 NLRB 942, 948; Smith Victory Corporation, 90 NLRB 2089. 866 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that by this discharge the Association interfered with, restrained, and coerced Sturdivant in the exercise of rights guaranteed by Section 7 of the Act and thereby violated Section 8 (a) (1) of the Act Minutes of the union meeting on November 5 indicate that Sturdivant 's activity in connection with the petition began only after the Union failed to move in respect to back wages in the direction that Sturdivant and other members believed that it should. As a union member Sturdivant had a right to urge his representatives to action and a diminution of this right was a pro tanto circumscription of his right to act in concert with his fellows through the Union. Had Sturdivant been successful in persuading a majority of the zanjeros to join in the petition , it would seem to follow that the Union would have to support his position. By discharging him, the Association lessened the prospect of such a development and, by thus interfering with Sturdivant's rights under the Act, stifled a right he held as incident to his union membership. By the discharge the Association thus discouraged membership in the Union and thereby violated Section 8 (a) (3) of the Act.` In late November S. H. Angle, one of the Association 's watermasters, remarked to zanjero H. C. Selleiz that the name of the latter was on the petition. Selleiz denied that this was so and Angle insisted that it was . The conversation ended when Angle said that he would have Selleiz' name removed. How he would accomplish this the record does not explain . I find that Angle's remark was a form of inquiry ; that he was verifying through Selleiz information that he had obtained otherwise ; and that by such interrogation the Association through Angle interfered with, restrained, and coerced Selleiz in the exercise of rights guaranteed in Section 7 of the Act . The Association thereby violated Section 8 (a) (1) of the Act. It is alleged that the Union attempted to cause, and did cause Sturdivant's discharge. The facts relied upon to support such a conclusion are: (1) The Union's order to Sturdivant that he recover the petitions and deliver them to the Union for destruction. (2) The statement to Sturdivant by Hill on November 5 that he would be discharged within 3 days. (3) The meeting of representatives of the Union with the Association 's board of governors on November 6 concerning the petition. (4) The statement by the Union in its letter of November 5 to the Association that "punitive action" would be taken against Sturdivant. (5) The statement by Hill to Tait on November 6 that all those who signed the petition would be discharged, and to Webber that he should take his name from the petition before it was "too late." Hill testified that at the meeting with the board of governors , Shackleford said that Sturdivant had violated the Union 's constitution , but all witnesses who testified concerning that meeting denied that any request for Sturdivant's discharge was made. One may wonder why the Union chose to advise the board of governors of its opposition to the petition activity and its purpose to discipline Sturdivant when it would seem more logical to make these repre- sentations directly to the management officials with whom it was then negoti- ating. But the same perplexity arises if one assumes that the Union did seek Sturdivant's discharge. Why go to the board of governors? McMullin had full authority to make a discharge and, indeed , exercised it. Sturdivant had embarrassed the Union's officials. Justly or not, he had accused them of inaction concerning back pay and overtime and in emphasis of his lack of confidence in the representation he was being afforded , began a move- 6 Nu-Car Carriers, Inc., 88 NLRB 75, 89. SALT RIVER VALLEY WATER USERS ASSOCIATION 867 ment to accomplish what he felt should be done. Of course the union officials resented this and their resentment was not based alone upon the fact that the caption of the petition made incidental reference to the Union. In the union meeting of November 5, Shackleford made it clear that the petitions must be destroyed ; removal of the reference to the Union would not suffice. Against such a background testimony of union witnesses that no request for Sturdivant's discharge was made would properly be viewed with some skep- ticism. But McMullin, too, testified that no such request was made of him and it was he who made the discharge. Again, of course, interest may have played a part. McMullin apparently felt that he could justify the discharge on the ground that Sturdivant's actions were disturbing the work of zanjeros. He may well have known that a discharge at the request of the Union for circu- lating such a petition would be unlawful. Hill's statement that Sturdivant would be discharged may have meant that the Union would demand such action or that the Association would bring it about without outside encouragement. The latter alternative is just as con- sistent with the proved circumstances as the former. The same is true of Hill's remarks to Tait and Webber. I have no doubt that the Union at least indicated to the Association that it had no objection to Sturdivant's termination. On November 14, after the dis- charge, it took formal action (never made effective) to expel him from mem- bership. But, again, this is no proof that the Union attempted to cause his discharge. I conclude that the inferences reasonably to be drawn from the Union's con- duct concerning Sturdivant do not amount to such a quantum of evidence as to preponderate in favor of a finding that the Union caused or attempted to cause his discharge. In respect to the Union the complaint further alleges and the General Counsel contends in his brief that a labor organization may not lawfully interrogate its members concerning participation in a protected activity when the purpose of the interrogation is to coerce members in the exercise of their statutory rights. This contention alludes to the questioning of Sturdivant and Archer in respect to the petitions, the happenings at the union meeting on November 5 when members were encouraged to withdraw their names from the petition, and the statements by Hill to Tait and Webber. It is the law, of course, that a labor organization may not restrain or coerce employees in respect to their rights under Section 7 of the Act by threatening the security of their employment.6 But apart from this it is by no means clear that a labor organization is prohibited from interfering with such rights by threats of loss of membership. Indeed, the language of the statute and the legislative history behind it both indicate a clear purpose on the part of the Congress to leave any decision as to admission to or retention of membership to the discretion of the union.' Thus, while a labor organization may not cause or attempt to cause an employer to discriminate against an employee for lack of membership in a union and may not threaten an employee with loss of employ- ment or subject him to any sort of physical restraint or coercion in that connection, it by no means follows that an individual may not be denied membership or be expelled from membership for any reason whatsoever. I believe that any of the Union's threats directed to any employees of the Association holding out as a penalty loss of membership in the Union, do not run afoul of the Act. It follows, I am convinced, that as the Union was under no proscription in respect to uttering 6 Seamprufe, Incorporated, 82 NLRB 892. 7 The statute expressly leaves unimpaired "the right of a labor organization to prescribe its own rules with respect to the acquisition or retention of membership." 868 DECISIONS OF NATIONAL LABOR RELATIONS BOARD such threats, it could not have violated the Act by means of interrogations made for the purpose of discovering to whom the threats should be addressed. The contract between the Union and the Association has no union-security provision. Membership in the Union has not been at any time with which these proceedings are concerned a condition of employment. In this context I do not believe that the statements of Hill to Tait and Webber reasonably should be con- strued as a threat that the Union would secure the discharges of those who signed the petition. So far as this record is concerned, Hill's statements were just as probably intended as predictions of action by the Association, alone. True enough, Tait and Webber were, in effect, warned that the Union would not protest any discharge made by the Association in connection with the petitions. But this falls short of establishing that the Union threatened them that their dis- charges would be sought unless they withdrew from the petition activity. I find that the evidence so far related does not establish that the Union violated Section 8 (b) (1) (A) of the Act in any particular. On November 7, as soon as Sturdivant was discharged, Archer, who for some time had been working as a zanjero in an area contiguous to the one left vacant by Sturdivant, was instructed to work both his and Sturdivant's divisions. Archer did so through December T. About November 14 Hill told Archer that the two divisions would soon be consolidated ; that one zanjero would be assigned to work both of them ; and that there would be no additional salary for the increased work.8 A few days later the Association posted an announcement of the consolidation and invited bids from qualified zanjeros. Watermaster Angle urged Archer on several occasions to submit his bid, but Archer consistently refused to do so, claiming that the additional driving made necessary by the larger territory would cause him to lose money on his car allowance. For the 2-week period following November 7, in accordance with the terms of the col- lective bargaining agreement, Archer received an additional allowance of $5.50 a day for working the two divisions. On December 6 his pay did not include this allowance for the previous 2 weeks. Archer telephoned General Manager McMullin to inquire why he did not receive the additional payment. McMullin answered, according to Archer, that he knew nothing about it and when Archer inquired what work there was for him to do, McMullen answered that Archer had "terminated himself"; and that there was no place in the Association for a man of his caliber. Archer worked December 7 and on the following day went to the offices of the Association. There it was decided to give him the additional payment he claimed for the last 2 weeks of his employment and Personnel Direc- tor A. W. McGrath told him that he was laid off; that under the terms of the contract he had a right to bid on any vacancy for which he was qualified for a period of 6 months. Archer commented that McMullin's statement that he had no room for a man of his caliber was hardly consistent with a layoff a and asked McGrath how long he could continue to occupy the house which the Association had furnished him. McGrath replied that he had no authority to make any ar- rangement concerning the house. On December 11 at 5 p. m., Archer was notified by the Association to quit the house by 6 p. m. of the same day. A few days earlier Archer's counsel had notified the Association that Archer believed him- self to have been discriminatorily discharged and, inferentially at least, that he would not voluntarily relinquish possession of the house. Legal proceedings 8 Hill also said that Archer would not be the successful bidder on the consolidated division. I find no significance, relevant here, in this remark. 9 I' am sure that on December 8 Archer firmly believed that he was out of work solely because of the part he played in the circulation of the petition. He also believed, perhaps correctly, that he would be in a better situation to qualify for unemployment benefits under Arizona law if he were discharged rather than laid off. SALT RIVER VALLEY WATER USERS ASSOCIATION 869 were started by the Association and a judgment of eviction was secured. On several occasions between December 7 and the date of the hearing, counsel for the Association stated to counsel for Archer that Archer was a laid-off employee but that no openings were available for him. Superintendent Wilson testified that by virtue of consolidations and otherwise, a number of vacancies in zanjero positions developed after Archer's layoff. No direct notification was given to Archer of these employment opportunities, but invitations to bid were posted at various points in the Project. The General Counsel contends that Archer was discharged on December 7 because he had participated prominently with Sturdivant in the circulation of the petitions. The Association asserts that Archer was laid off following the consolidation of the two divisions because he refused to bid on the new division and because he refused to accept an assignment to the division vacated by the successful bidder. The Association further asserts that since December 7, and at the time of the hearing, Archer has occupied the status of a laid-off employee who could bid on any vacancy which he was qualified to fill. There is no doubt that Archer was qualified to handle the zanjero openings which developed after December 7. Within recent years, at least until the discharge of Sturdivant, the Association had consolidated no divisions. Since the consolidation of the divisions once worked by Sturdivant and Archer, about 15 in all have been consolidated into 8 new divisions. The Association asserts, and there is testimony to support it, that studies looking toward such consolidations were begun in the summer of 1950 and that the discharge of Sturdivant just happened to offer an opportunity to effect the first consolidation I do not believe that the evidence will support a contrary conclusion and I find that the' position of the General Counsel that Archer's loss of employment flowed proximately from the discriminatory dis- charge of Sturdivant is not tenable. I agree that under the evidence in this record it is entirely possible, and perhaps even probable, that no consolidation affecting Archer would have resulted except for the vacancy caused by Sturdivant's dis- charge and if there had been no independent intervening development, the causa- tion of Archer's layoff would stem directly from the discriminatory discharge of Sturdivant30 But there was such an intervention. Archer was urged to submit a bid on the consolidated division and had he done so the record quite clearly indicates he would have been awarded the job. When he failed to bid and when the new division was given to another, he was offered the division vacated by the successful bidder but refused it. Archer testified that he did not want the con- solidated division because of the additional automobile expense involved, and did not want the vacated division because it would have required him to move about 25 miles. The General Counsel stresses the importance of the remark attributed to McMullin that there was no room in the Association for one of Archer's caliber. It is argued that this could have reference only to Archer's participation in the petition activity. Although McMullin denied flatly that he made any such state- ment, I am convinced that Archer testified truthfully and accurately with respect to it. It is not such a remark as Archer could be expected to imagine and I am sure that he did not contrive it. So we have this situation : Archer refused to accept the employment that the Association had available for him ; he was told that he had terminated himself and that the Association had no place for one of his caliber. I find that there was no discrimination practiced against Archer by the Association in connection with the consolidation of the divisions and that by his refusal to bid on the consolidated division and his further refusal to accept 10 See Rockwood Stove Works, 63 NLRB 1297. 215233-53-56 870 DECISIONS OF NATIONAL LABOR RELATIONb BOARD another division, Archer was left without assignment. I find that, as the Association asserts, Archer was laid off on December 7 and that his layoff was not caused because of his participation in the circulation of the petition. By virtue of the layoff, Archer remained an employee of the Association and under the terms of the contract then existing between the Association and the Union had a right for the next 6 months to bid on any suitable job opening. The complaint alleges that the layoff was discriminatory and makes no assertion with respect to the conduct of the Association toward Archer following December 7. However, I believe that questions concerning Archer's rights as a laid-off employee and the treatment which he received in that status from the Associa- tion was fully litigated at the hearing. On December 11, as has been stated, Archer was served with notice to vacate the house which he had been occupying. The Association had no immediate need for the premises and the dwelling has not been used since. Accepting testimony offered on behalf of the Association that a plan was in contemplation which would require the use of Archer's house for business purposes, it does not in the least appear that this plan (later dropped) had approached such a state of fulfillment as to require the immediate possession of the premises. So some other reason must be found for the pre- cipitate demand for possession of premises occupied by a laid-off employee. The utter unreasonableness of the Association's demand that Archer move his family and goods from a house within an hour after the demand was made leads me to the conclusion that the Association was using this device to retaliate against Archer. The Association's conduct in this respect was vindictive and entirely inconsistent with its position that as a laid-off employee Archer was entitled to bid on'the next suitable job opening. Just as inconsistent is the Association's failure to notify Archer of the job openings which later developed. The collective bargaining contract in effect December 7 required the Association ( section 34, page 15, 16) to "exercise due diligence" in notifying laid-off employees of va- cancies. The later contract, effective January 2, 1951, required the Association (article II, section 20 (f) ) to "bring to the attention of laid-off employees eligi- ble for reemployment in positions for which they are qualified, any opportunity for reemployment that may exist during said six months' period by notice directed to such employees at their last known places of residence." The Association followed neither of these procedures. Although the Association's counsel consistently advised counsel for Archer that Archer had been laid off, he just as consistently stated that no job openings were available . I do not believe that these representations were incorrect in any particular. It is entirely possible that each such conversation occurred at a time after one vacancy had been filled and before another had developed. But at no time was Archer notified of the existence of a vacancy for which he could bid, and the Association at no time made any effort to bring to Archer's attention the existence of such a vacancy. Thus, Archer was deprived of a right which as an employee was secured to him by the contract. The only question now remaining is "why." I believe that the answer Is apparent. Archer had been active in the circulation of the petition. From late October until the time of the hearing he had continuously been one of a group which was seeking to obtain settlement of back-wage claims against the Associa- tion by means of legal process. McMullin demonstrated his hostility to such concerted activity by discharging Sturdivant, the prime mover in this con- nection. McMullin's characterization of Archer as one of such caliber that the Association had no place for, is explainable in this record only by a reference to Archer's concerted activity. The evidence is that Archer was a satisfactory worker, that he discharged his function as a zanjero faithfully and without SALT RIVER VALLEY WATER USERS ASSOCIATION 871 criticism. The conclusion that McMullin discriminated against Archer because of the latter's participation in the wage-claim activity is the only conclusion which offers a reasonable explanation for the Association's unceremoniously abrupt demand that he vacate his house and its consistent disregard of the provisions in the contract requiring an attempt, at least, to notify a laid-off employee of a job opening. I find that the Association by failing to accord to Archer the status of being a laid-off employee (a status which the Association agrees that he held) discriminated against him in regard to his hire and tenure of employment and by failing to honor the status which he held under the union contract discouraged membership in a labor organization. The Association thus violated Section 8 (a) (3) of the Act. By such discrimination, the Associa- tion interfered with, restrained, and coerced Archer in the exercise of rights guaranteed in Section 7 of the Act and thereby violated Section 8 (a) (1) of the Act. It is alleged that the Union attempted to cause and did cause either the layoff or the discharge of Archer. I find nothing in the evidence to sustain this con- tention. It is true that the Union made no attempt to persuade the Association to abide by the contract in notifying Archer of vacancies, but this falls short of establishing any violation of the Act, on its part. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Association set forth in Section III, above, occurring in connection with the operations of the Association 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 ob- structing commerce and the free flow of commerce. V. THE REMEDY Having found that the Association has engaged in and is engaging in certain unfair labor practices, it will be recommended that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Having found that the Union has not engaged in any unfair labor prac- tices, it will be recommended that the complaint as to it be dismissed. Having found that the Association has discriminated in regard to the hire and tenure of employment of Leo Sturdivant and A. E. Archer, it will be recom- mended that it offer them immediate and full reinstatement to their former or substantially equivalent positions,' without prejudice to their seniority and other rights and privileges. Having found that the Association discriminatorily discharged Leo Sturdivant on November 7, 1950, it will be recommended that the Association make him whole for any loss of pay he may have suffered by reason of the discrimination against him. Having found that the Association discriminatorily failed to ac- cord A. E. Archer the status of a laid-off employee in connection with advice concerning job openings for which he might bid, it will be recommended that he be made whole for any loss of pay suffered by reason thereof.' In the case of both it will be recommended that loss of pay be computed on the basis of each separate calendar quarter or portion thereof during the period from the dis- u The Chase National Bank of the City of New York , San Juan, Puerto Rico, Branch, 65 NLRB 827. 12 What bids, if any, Archer would have submitted must be determined at the compliance stage. Presumably , he would have been influenced by the same considerations in that respect after December 7 as before. 872 DECISIONS OF NATIONAL LABOR RELATIONS BOARD criminatory action-in the case of Sturdivant, November 7, 1950; in the case of Archer, from that date which, had he been notified, would have resulted in his successful bidding on a posted vacancy-to the date when each is offered rein- statement. The quarterly periods, herein called quarters, shall begin with the first day of January, April, July, and October. Loss of pay shall be determined by deducting from a sum equal to that which these employees normally would have earned for each quarter or portion thereof their net earnings." if any, in other employment during those periods. Earnings in one particular quarter shall have no effect upon the back-pay liability for any other quarter. It will also be recommended that the Association be ordered to make available to the Board, upon request, payroll and other records to facilitate the calculation of the amounts of back pay due. Upon the basis of the foregoing findings of fact, and upon the entire record in the case, I make the following : CONCLUSIONS OF LAW 1. International Brotherhood of Electrical Workers, Local 266-B, AFL, 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 Leo Sturdivant and A. E. Archer, thereby discouraging membership in a labor organ- ization, Salt River Valley Water Users Association has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (3) of the Act. 3. By interfering with, restraining, and coercing its employees in the exercise of rights guaranteed in Section 7 of the Act, that Association 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. 5. The Union has not engaged in unfair labor practices within the meaning of Section 8 (b) (1) (A) and (2) of the Act. [Recommendations omitted from publication in this volume.] u Crossett Lumber Company, 8 NLRB 440. TITAN METAL MANUFACTURING COMPANY and FEDERAL LABOR UNION No. 19981, AFL. Case No. 6-CA-880. June 04,1952 Decision and Order On October 29, 1951, Trial Examiner Bertram G. Eadie issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices in violation of Section 8 (a) (3) and 8 (a) (1) of the Act, and recommending that it cease and desist therefrom and take certain affirmative 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. 99 NLRB No. 139.