Holtville Ice and Cold Storage Co.

In the Matter Of HOLTVILLE ICE AND COLD STORAGE COMPANY, Associ- ATED FARMERS OF IMPERIAL COUNTY, AND HUGH T. OSBORNE and TRUCK DRIVERS, WAREHOUSEMEN AND HELPERS UNION 898, AFFILI- ATED WITH THE INTERNATIONAL BROTHERHOOD OF TEAMSTERS , CHAUF- FEURS, WAREHOUSEMEN AND HELPERS, A. F. OF L.1 Case No. C-2598.-Decided July 02, 1948 DECISION AND ORDER On April 23, 1943, the Trial Examiner issued his Intermediate Report in the above-entitled proceeding, finding that the respondents had engaged in and were engaging in certain unfair labor practices, and recommending that they cease and desist therefrom and take cer- tain affirmative action as set out in the copy of the Intermediate Report attached hereto. Thereafter the respondents and the Association filed exceptions to the Intermediate Report and briefs in support thereof. Oral argument before the Board was not requested and none was held. The Board has considered the rulings of the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rul- ings are hereby affirmed. The Board has considered the Intermediate Report, the exceptions, the briefs, and the entire record in the case, and hereby adopts the findings, conclusions, and recomendations of the Trial Examiner. Upon the entire record in the case, and pursuant to Section 10 (c), of the National Labor Relations Act, the National Labor Relations Board hereby orders that : 1. Holtville Ice and Cold Storage Company, Holtville, California, its officers, agents, successors, and assigns, shall : a. Cease and desist from : (1) Dominating or interfering with the administration of Holtville Ice and Cold Storage Company Employees Association, or with the formation or administration of any other labor organization of its employees, and from contributing support or assistance to said Asso- ciation, or to any other labor organization of its employees; ' The evidence shows this to be the correct name of the Union. 51N.L R.B,No 103. 596 HOLTVILLE ICE AND COLD STORAGE COMPANY 597 (2) Giving effect to its contract of November 1, 1942, with Holtville Ice and Cold Storage Company Employees Association, or to any ex- tension, renewal, modification, or supplement thereof, or to any super- seding contract; (3) Discouraging membership in Truck Drivers, Warehousemen and Helpers Union 898, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers, A. F. of L., or any other labor organization of its employees by discharging or refusing to reinstate any of its employees or in any other manner discriminating in regard to their hire and tenure of employment or any term or condition of employment; (4) In any other manner interfering with, restraining, or coercing its employees in the exercise of the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purposes of collective bargaining or other mutual aid and protection, as guaranteed in Section 7 of the Act; b. Take the following affirmative action which the Board finds will effectuate the policies of the Act: (1) Withdraw all recognition from Holtville Ice and Cold Storage Company Employees Association, as, the representative of any of its employees for the purposes of dealing with the respondent Ice Com- pany concerning grievances, labor disputes, rates of pay, wages, hours of employment, or other conditions of employment, and completely disestablish said Association as such representative; (2) Offer to Arthur Standifer, Lester C. Hart, L. H. Davis, H. C. Fredenburg, Perry T. Blankenship, Herman T. Pool, and Herman Fruhn, immediate and full reinstatement to their former or sub- stantially equivalent positions without prejudice to their seniority and other rights and privileges; (3) Make whole Arthur Standifer, Lester C. Hart, L. H. Davis, H. C. Fredenburg, Perry T. Blankenship, Herman T. Pool, and Herman Fruhn, for any loss of pay they may have suffered by reason of the respondent Ice Company's discrimination against them by pay- ment to each of a sum of money equal to that which he normally would have earned as wages from the date of his discharge to the date of the offer of reinstatement, less his net earnings during said period; (4) Post immediately in conspicuous places in its plant and main- tain for a period of not less than sixty, (60) consecutive days from the date of posting, notices to its employees stating (1) that the respondent Ice Company will not engage in the conduct from which it is ordered to cease and desist in paragraphs la (1) to (4), inclusive, of this Order; (2) that the respondent Ice Company will take the affirmative action set forth in paragraphs lb (1) to (3), inclusive, of this Order; and (3) that its employees are free to remain or become members of 598 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Truck Drivers, Warehousemen and Helpers Union 898, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehouse- men and Helpers, A. F. of L., and that the Ice Company will not dis- criminate against any employee because of membership in or activity on behalf of that organization; (5) Notify the Regional Director for the Twenty-first Region in writing within ten (10) days from the date of this Order, what steps it has taken to comply herewith. 2. The respondents, Associated Farmers of Imperial County and Hugh T. Osborne, their officers, agents, successors, and assigns,. acting in the interest of the respondent Ice Company, or in the interest of any other employer, shall : a. Cease and desist from : (1) Dominating or interfering with the administration of Holt- ville Ice and Cold Storage Company Employees Association, or with the formation or administration of any other labor organization of the employees of the Ice Company, or any other employer, and from contributing support and assistance to said Association, or to any other labor organization of the employees of the Ice Company, or of any other employer ; (2) Soliciting and collecting, funds from the respondent Ice Com- pany, or from any other employer, to be used in whole or in part for the purpose of- interfering with the rights of employees guaranteed in Section 7 of the Act; (3) In any other matter interfering with, restraining, or coercing the employees of the Ice Company, or of any other employer, in the exercise of the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining, or other mutual aid and protection, as guar- anteed in Section 7 of the Act; b. Take the following affirmative action, which the Board finds will effectuate the policies of the Act : , (1) Immediately send notices in writing through the United States mails to all members and contributors of the Associated Farm- ers, including the respondent Ice Company, stating that each of them will not engage in the conduct from which they are ordered to cease and desist in paragraphs 2a (1) to (3), inclusive; (2) Notify the Regional Director for the Twenty-first Region in writing, within ten (10) days from the date of this Order, what steps they have taken to comply herewith. IT IS FURTHER ORDERED that the complaint be, and it hereby is, dis- missed insofar as it alleges that the respondents engaged in unfair labor practices within the meaning of Section 8 (5) of the Act. HOLTVILLE ICE AND COLD STORAGE COMPANY 599 -AND IT IS FURTHER ORDERED that the complaint, insofar as it alleges that the Associated Farmers of Imperial County and Hugh T. Os- borne engaged in unfair labor practices within the meaning of Sec- tion 8 (3) of the Act, be, and it hereby is, dismissed. MR. GERARD D. REILLY took no part in the consideration of the above Decision and Order. INTERMEDIATE REPORT Mr. Charles M. Ryan and Robert C. Moore, for the Board. Mr. Clarence B. Smith, of El Centro, Calif., for the respondent Ice Company. Mr. R. B. Whitelaw, of El Centro, Calif., for the Associated Farmers and Hugh T. Osborne. Mr. A. II. Petersen, of Los Angeles, Calif., for the A. F. of L. Mr. Ed Achstetter, of El Centro, Calif., for the Union. STATEMENT OF THE CASE Upon a third amended charge 1 duly filed by Truck Drivers , Warehousemen and Helpers Union 898, affiliated with the International Brotherhood of Team- sters, Chauffeurs , Warehousemen and Helpers , A. F. of L., herein called the Union, the National Labor Relations Board, herein called the Board, by the Regional Director for the Twenty-First Region ( Los Angeles, California ), issued its complaint dated December 30, 1942, against Holtville Ice and Cold Storage Company, Associated Farmers of Imperial County , and Hugh T . Osborne, herein collectively called the respondents , alleging 'that the respondents had engaged in and were engaging in unfair labor practices within the meaning of Section 8 (1), (2), (3), and ( 5) and Section 2 (6) and ( 7) of the National Labor Rela- tions Act, 49 Stat. 449, herein called the Act. With respect to the unfair labor practices, the complaint as amended at the hearing alleged in substance that: ( 1) the respondents repeatedly from Septem- ber 1, 1941, to the date of the complaint discouraged the employees of Holtville Ice and Cold Storage Company , herein called the Ice Company , from joining or retaining membership in the Union , by characterizing unions as "rackets," and union members as "racketeers" and "Communists"; by advising said em- ployees that membership in a union would be of no benefit to them by stating to said employees that the Ice Company would never recognize the Union ; by threatening said employees with discharge if they joined or -remained members of a union ; by advising said employees to refrain from union activities, and by questioning said employees about their union activities ; (2) the respondents on or about September 15, 1941, sponsored , promoted , assisted and interfered with the formation of the Holtville Ice and Cold Storage Company Employees Asso- ciation, herein called the Association , and since that time have dominated, sup- ported and interfered with the administration of the Association , and have coerced and encouraged the employees of the Ice Company to accept the Asso- ciation as collective bargaining representative ; ( 3) the Ice Company on specified dates in October and November 1941, discharged and has since refused to reemploy Arthur Standifer, Lester C. Hart, L. H. Davis, H. C. Fredenburg, Perry T. Blankenship , Herman T. Pool and Herman Fruhn because they joined and assisted the Union and engaged in concerted activities for their mutual aid I The original charge was filed January 3, 1942. 600 DtEOISIONS OF NATIONAL LABOR RELATIONS BOARD and protection; (4) since November 1, 1941, the Ice Company has had a written contract with the Association covering wages, hours, and working conditions, and that such contract is illegal because of the assistance rendered to the Asso- ciation by the respondents, and because the Association did not represent a majority, or an uncoerced majority, of the employees in an appropriate bargain- ing unit at the time when the contract was executed; (5) on or about October 12, 1941, and at all times thereafter the respondents refused and failed to bargain collectively with the Union (the Union having previously been desig- nated as collective bargaining agent by a majority of the Ice Company's employees in the appropriate bargaining unit specified in the complaint) ; and (6) by the foregoing acts the respondents interfered with, restrained, and coerced the Ice Company's employees in the exercise of rights guaranteed in Section 7 of the Act. The complaint and accompanying notice of hearing were duly served upon the respondents, the Union, and the Association. At the beginning of the hearing the respondents filed answers to the com- plaint. In their answers the respondents denied that they had committed un- fair labor practices as alleged in the complaint, and pleaded certain affirmative defenses. Pursuant to proper notice, a hearing was held January 25, 1943, and from February 8 to February 17, 1943, at El Centro, California, before Frank A. Mouritsen, the Trial Examiner duly designated by the Chief Trial Examiner. The Board, the respondents, the Association and the Union participated in the hearing either through counsel or representatives. Full opportunity, to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing on the issues was afforded all parties. At the beginning of the hearing counsel for the Associated Farmers and Hugh T. Osborne objected to the entire proceeding upon the ground that the Board was without jurisdiction. The objection was overruled. At the conclusion of the hearing all parties argued orally upon the record. The parties were advised that they might file briefs'with the- undersigned. No briefs have been received. Upon the entire record in the case and from his observation of the witnesses the undersigned makes the following : FINDINGS or FACT 1. THE RESPONDENTS A. Holtville Ice and Cold Storage Co. The respondent Ice Company is a California corporation incorporated in 1926. Its office and place of business is located in Holtville, California, where it is engaged in the manufacture, sale, and distribution of ice. During the year 1941 its monthly purchase of electric power and water approximated $2800. Its sales of ice during 1941 totaled $111,387. In 1942, the sales totaled $139,339. Substantially all of the ice produced is sold to vegetable packing companies located in Holtville. The Ice Company owns and leases to the packing com- panies, to which it sells ice, packing sheds where the vegetables are packed and placed in railroad refrigerator cars for shipment. The ice sold to the packing companies is used to pack the vegetables and to ice the railroad cars. During the year 1942 the ice manufactured by the Ice Company was used by its packing customers to ice a total of 2,812 railroad cars, of which at least 75 percent were shipped out of the State of California. The number of employees of the Ice Company varies from 5 or 6 during the slack season to between 25 and 35 during the peak of the shipping season. HOLTVILLE ICE AND COLD STORAGE COMPANY 601 B. The Associated Farmers and Hugh T. Osborne The Associated Farmers of Imperial County is a non-profit corporation organ- ized and existigg under the laws of the State of California since 1936. The pur- poses for which it was formed, as set out in the copy of its Articles 'of Incorpora- tion, filed in the evidence, are : To protect, preserve and maintain American Institutions and ideals ; to preserve the constitutional form of Government in both Nation and State; to oppose and combat any and all doctrines or practices which imperil the maintainence [sic] of these constitutional liberties ; to protect American Schools and the constitutional priviliges [sic] which the educational system of America has brought to all children ; to fight against the infiltration of subversive doctrines into the educational system and into the Government; to combat the dictatorship of individuals or groups ; to foster and encourage respect for and to maintain law and order, particularly by cooperation with local, state and national official and governmental agencies ; to promote the prompt, orderly and ifficient [sic] administration of justice ; and to promote and protect the economies [sic] and agricultural welfare of the citizens of the United States and particularly of the Citizens of California. The activities which led to the organization of the Associated Farmers are set out in the certificate of the Secretary of the organization attached to the Articles of Incorporation as follows : That the organization came into being as a result of a series of disturbances in the agricultural districts of the State; investigation of these disturbances showed conclusively that, almost without exception, the disturbances were caused and fomented by radical and/or communistic agitatiors, [sic] who came into the various agricultural districts of the State with the avowed purposes of bringing .about so-called labor troubles amony [sic] the workers. That these agitators were affiliated directly with or were members of the Communist Party, U. S. A. and/or The Trade Union Unity League, and/or the Cannery and Agricultural Workers Industrial Union or similar organiza- tions, affiliated with, subsidiary to or sympathetic to these organizations. Membership in the Associated Farmers is not restricted to farmers, and it numbers among its members many of the business and professional people of the Imperial Valley. The Ice Company has been a member of, and a contributor to, the Associated Farmers since 1936. The Associated Farmers is entirely dependent upon contributions of its members for its income. Hugh T. Osborne has been secretary-manager of the Associated Farmers since July 1937. The Associated Farmers have been instrumental in setting up a number of unaffiliated labor organizations among the employees of different business con- cerns in the Imperial Valley. II. THE ORGANIZATIONS INVOLVED Truck Drivers, Warehousemen and Helpers Union 898, affiliated with the Inter- national Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers, A. F. of L., and Holtville Ice and Cold Storage Company Employees Association, are labor organizations admitting to membership employees of the Ice Company. III. THE UNFAIR LABOR PRACTICES A. The background of the unfair labor practices The employees of the Ice Company first became interested in union organiza- tion in April or May 1941. At that time a number of them visited the office of 602 DECJISIONS OF NATIONAL LABOR RELATIONS BOARD the Union in El Centro, and made some inquiries, but took no further action. The Ice Company operates as a general rule from the first of November of one year until July or August of the following year, and between August and November operations are greatly curtailed. During these slack periods the Ice Company attempts to give its regular employees as much maintenance work as possible in order to hold them together During the summer of 1941 there was an unusual amount of work to-be done around the plant during the slack season, as the Ice Company was changing from Diesel to electric power, and the Diesel engines had to be removed, and electric motors installed The installa- tion of the electrical equipment and some of the remodeling incident to the change in the method of operation were done by contractors who 'employed union help exclusively. The employees of the Ice Company who performed maintenance work around the plant, some of whom were hired by the con- tractors, noted the disparity between the wages paid under the union scale and those which they received from the Ice Company. The union employees of the contractors also did some proselyting among the employees of the Ice Com- pany, and interest in organization revived. On September 26, 1941, a number of the Ice Company employees visited the Union office in a body, and after voting among themselves to designate the Union as collective bargaining agent, about 10 of them signed applications for membership in the Union which also granted the Union authority to represent them for the purposes of collective bargaining 2 Shortly thereafter a number of the employees who applied for membership in the Union were laid off. Between the time when the employees applied for membership in the Union and the time when the Ice Company com- menced operations on October 29 the Association was formed. The Ice Com- pany and the Association executed a collective bargaining contract dated as of, November 1, 1941, covering wages, hours and working conditions. They exe- cuted a similar contract as of November 1, 1942, which was in effect at the time of the hearing. The supervisory employees of the Ice Company whose activities are con- sidered hereinafter are F. A. Willard, president, Herman Smith, office man- ager, and Pete Pool, superintendent. B. Interference, restraint and coercion by the Ice Company It is apparent that Pete Pool, superintendent of the ice plant, learned that the employees had made application for membership in the Union shortly after it occurred. Within a day or so he questioned a number of the employees about their membership in the Union. He told employee L. C. Hart that Willard was "sure mad" because the employees had joined the Union. After asking em- ployee Perry T. Blankenship if he had joined the Union and receiving an affirma- tive reply, he told Blankenship that the Union did not have a chance because the men who did the hiring were `a jump ahead" of the unions, and that he did not think they would ever make a success of it. After learning from his brother Herman T. Pool that he had joined the Union, Pete told ham that lie did not think it was "a very good idea," and added that Willard could get plenty of non-union men to operate his plant. Later after he had told Herman that he would not be employed during the next season, Pete asked him if he were still with the Union. When Herman replied that he was "going to ride it through," Pete told him, "You are just riding a blank train." After ques- tioning the employees, Pete Pool reported to Willard that the plant had "gone union." 2 The efforts of the Union to bargain with the Ice Company on the basis of such authorizations is, discussed hereinafter. HOLTVILLE ICE AND COLD STORAGE COMPANY 603 Herman Smith, office manager of the Ice Company, also learned that the employees had made application to join the Union. On the morning after the employees signed the application blanks on September 26, he called employee L. H. Davis into the office and asked him what he knew about the men joining the Union. Davis said that he knew of the meeting the night before, but that he had not attended because of a prior engagement. He told Smith that he had heard that some of the men joined, but that he did not know how many or who they were. The acts of Pool and Smith in questioning the employees about their union membership and Pool's attempts to discourage affiliation with the Union consti- tute interference, restraint, and coercion within the proscription of the Act. C. The formation of the Association ; interference, restraint and coercion by the Associated Farmers and Hugh T. Osborne Shortly after Willard learned from Pete Pool that the employees had joined the Union, he called Hugh T. Osborne, secretary-manager of the Associated Farmers, and informed him that he was having some labor trouble at the plant. Osborne informed Willard that he knew all about the Union drive and promised to come to the plant to confer about it. Within the next day or so Osborne met with Willard at the plant. According to Osborne, Willard'was perturbed by the fact that his employees had joined the Union and asked Osborne what he should do. Osborne told Willard that he himself could do nothing about it without violating the Act. During the conference the formation of an unaffiliated organization was discussed, and according to Willard, Osborne told him that one of the con- cerns in the vicinity had had "difficulties," and thereafter the employees had formed their own union. Willard asked Osborne to "interest" himself in the situation, and Osborne promised to make an investigation Shortly after his talk with Osborne, Willard conferred with R B. Whitelaw, counsel for the Associated Farmers, about the "disturbance" at his plant. Within a few days after his talk with Willard, Osborne questioned a number of the employees, including Tom Herring, George Harlan, Herman T. Pool and L. H. Davis, about their reasons for joining the Union, and suggested to some of them that they form an unaffiliated organization Pool testified that when Osborne called on him he stated, "I'm connected with the Associated Farmers. I'm, not going to let you bring the union into the Valley." Osborne presented arguments against joining the Union, cited an example of help given to the employees of one of the packing sheds by the Associated Farmers, and then advised Pool as follows, "If you are not too far in, think it over and back out." Pool said that he would think it over. Osborne denied that he had made the statements attributed to him by Pool. Inasmuch as Osborne's testimony was inconsistent in many respects, the undersigned credits Pool's testimony. Osborne questioned Davis about the reasons why the employees joined the Union Davis told him that the men were dissatisfied with the wages they received, and that the disparity between their wage rates and the union scale had been demonstrated to them by the wages paid the union employees who helped in the installation of the electrical equipment. Osborne suggested the formation of a company union. Davis demurred, saying that a company union would have no power. Osborne then stated that the Associated Farmers were against organized labor, because it meant the closed shop, which was un-Ameri- can. Then he said that Willard would close the plant down before he would deal with the A. F. of L., at the same time disclaiming that lie discussed the matter with Willard personally. Davis replied that he would stay with the others until the majority agreed to withdraw from the Union. 604 DECISIONS OF NATIONAL LABOR RELATIONS BOARD When Osborne spoke to Harlan, Harlan told him that some of the men had joined the Union. He added that he was not in favor of the Union, although he had signed an application blank which he had not turned in, and asked Osborne what he could do to keep from going into the Union. Osborne suggested the formation of an unaffiliated union, named a plant where such an organization had been formed, and agreed to give Harlan a copy of its constitution and bylaws. He gave Harlan these documents a few days later Herring testified that he talked with Osborne about the formation of an unaffiliated association and that he gave Osborne the names of employees he thought would be interested in the formation of such an association. He gave him, however, the names of employees who had made application to join the Union During this same period Keith Metz, a director of the Associated Farmers, sought out employee Henry G. Miller, and advised him not to join the Union. He stated that since Miller was a landowner, it would not pay him to join the Union, as his credit would thereby be impaired. Metz stated further that Willard would be glad to have the employees form their own union, and that the Associated Farmers would be glad to be of assistance. He urged Miller to talk to Osborne 6vith regard to the formation of an employees' union. Miller declined to go with him to see Osborne. The inference is warranted, in view of Metz' statements to Miller, that he talked with Miller at the behest of Osborne. Osborne at first desied and then admitted that he reported back to Willard after questioning the employees. Osborne also admitted that he referred the employees to Whitelaw, then as now counsel for the Associated Farmers, for legal advice and assistance in setting up the unaffiliated association. After Osborne's talks with them, Harlan, Stout and Herring, did go to White- law and he assisted and advised them in the formation of the Association. About October 20 Stout, Harlan, Ireland, Drinkard, and one or two others, met at the home of Harlan and discussed the formation of the Association. Osborne was present and outlined the procedure to be followed. On October 30 the Association'held its first meeting, elected officers and a bar- gaining committee, and discussed the drafting of a collective bargaining contract to be submitted to Willard. Later a contract was negotiated with the Ice Com- pany. About November 25 the contract was signed and was ante-dated to No- vember 1. Whitelaw assisted the Association in the negotiation of the contract, which provided for exclusive recognition of the Association as collective bargain- ing agent and contained a provision, suggested by Whitelaw, that after a 15-day period all new employees hired by the Ice Company should become members of the Association in order to continue to work at the plant On the occasion when the negotiating committee from the Association first met with Willard, Osborne was present, and introduced the committee to Willard as a bargaining committee of the Association, and stated that they desired to bargain with him. At that time Willard readily agreed to bargain with the committee, and accepted without question their unsupported claim to represent the employees despite the prior conflicting claim of the Union that it represented the empl oyees.' 8It appeared to the undersigned that Stout, Herring and Harlan were straining to make it appear that the Association claim to represent the employees ante -dated that of the Union, which was made October 28. Stout's testimony as to the time when the first Association request to bargain was made of Willard is conflicting . At one point he said it was not made until after the formation of the Association on October 30 This is corroborated by the minutes of the first meeting of the Association. Later he said that an earlier request was made In view of his conflicting testimony, and the additional fact that Willard on October 28 made no mention of any Association claims to the Union representatives, as he later did after the formation of the Association when requested by the Union to bargain , the undersigned finds that the Union claim' to represent the employees ante-dated that of the Association. HOLTVILLE ICE AND COLD STORAGE COMPANY 605 From the foregoing it is clear that Osborne initially suggested the formation of the Association. In making this finding the undersigned is not unmindful of the testimony of Stout and Harlan to the effect that the idea of forming an unaffiliated association originated among the employees themselves. That testi- mony is not convincing, however, as it is inconsistent with other portions of their own testimony as well as that of Osborne and other witnesses. It is clear that Osborne's assistance in forming the Association was not given in point of time until after he had been requested by Willard to "interest" himself in the activi- ties of the employees. If Willard himself had assisted the Association as Osborne did, there would be no question but that the Association is company-dominated. The acts of Osborne done at the request of Willard are no less attributable to Willard. Osborne was clearly acting at the request and in the interest of the Ice Company, and resultantly is an employer within the meaning of the Act. There was no contention that Osborne was not acting as an authorized agent of the Associated Farmers in assisting the Association, although this contention was raised regarding Metz' activities. It has been inferred that the acts of Metz in talking to Miller were undertaken at the request of Osborne. The un- dersigned finds that the Associated Farmers are responsible for the acts of Os- borne and Metz. Osborne, representing the Associated Farmers, acted with ref- erence to the Association at the request of Willard. The undersigned finds there- fore that the Associated Farmers and the Ice Company are responsible for the acts of Metz and Osborne in assisting in the formation of the Association. By their acts of assistance to the Association all respondents have dominated and interfered with the formation of the Association, and have interfered with, re- strained and coerced the Ice Company's employees in the exercise of the rights guaranteed in Section 7 of the Act. The Ice Company, the Associated Farmers, and Osborne should cease their acts of interference with the rights of the em- ployees guaranteed by the Act. The Association which is a result of such acts of interference and assistance , is incapable of serving the employees as a true col- lective bargaining agent and should be disestablished. D. The alleged refusal to bargain with the anion 1. The appropriate unit The complaint alleged that all employees of the Ice Company, exclusive of supervisory and clerical employees constitute an appropriate bargaining unit. The Ice Company does not overate the entire year. As a general practice it com- mences the manufacture of ice about the first of November each year, with what Willard termed his "regular" crew From the beginning of November until about the first of January this crew is engaged in the manufacture and storage of ice, and but a small amount of ice is delivered during this period. Heavy delivery of ice to the packing sheds commences about the first of January each year and continues until May or June. Additional employees are added at the time when heavy delivery of ice starts: and the number of employees is thereafter increased as the delivery of ice increases. In the 1940-41 season which began about November 1, 1940, the Ice Company commenced. operations with 19 employees. By January 15, 1941, the number had increased to 22, by February 1, to 27, and it remained fairly constant around that figure until the middle of May when it increased to 35. In July, which was the last month of the season , the number dropped to 25. Counsel for the Board contended that the employees who commenced the sea- son constituted the appropriate bargaining unit, and the employees who were employed after the start of the season should be excluded . Concerning the employees who started the season Willard agreed that they were "regular, 606 DECISIONS OF NATIONAL LABOR RELATIONS BOARD normal" employees, and testified that the Ice Company attempted to hold them together by giving them maintenance work around the plant after the close of the ice shipping season. He testified that the extra employees who were put on for a couple of weeks or so during the peak season were laid off the end of the peak season, and it was more or less according to chance whether they worked the following season. The Ice Company contended that temporary employees, including a number of electricians, who were hired only for the purpose of installing the electrical equipment in the summer of 1941, be included in the appropriate unit. The electricians were hired admittedly for the installation work only, and did not engage in the manufacture or distribution of ice. They should be excluded from the unit. The other temporary employees were hired only for short periods of a,few weeks during the peak of the ice season, and the Ice Company felt no obligation to give them employment the succeeding season. They also should be excluded. The Ice Company did not oppose the exclusion of supervisory and clerical employees from the unit, and they should be excluded as well. In addition to the above, however, the records show that there were other employees commencing work during the winter who worked steadily for periods ranging from 2 to '7 months, who had been employed in previous seasons for about the same length of time, and who could have had a reasonable expectation of being reemployed in the following season. The undersigned rejects the con- tention of Board's counsel that only those employed at the commencement of the season should constitute the appropriate unit and concludes that these employees, likewise should be includedjtherein. Details were lacking to show exactly how many employees would have been in the larger unit found to be appropriate. Although 13 employees had indicated, either by signing authoriza- tion cards or by payment on account of initiation fees, their designation of the Union as their bargaining agent, two of these had voluntarily left the Ice Com- pany's employ before the commencement of the 1941-42 season and a third ad- mittedly held a supervisory position and would have to be excluded from the unit. Although the Union might have had a majority of the men who started the season either in 1940 or 1941, the evidence fails to prove that it had a majority of the much larger, unit, herein found to be appropriate. It is extremely doubtful that, had evidence of the size of the larger unit been clearly adduced, the Union would have proved a majority. Becatise therefore, of the failure of proof in regard to the size of the appropriate unit and consequently the failure of proof that the Union had a majority therein, the undersigned finds that the respondent Ice Company did not refuse to bargain with the Union within the meaning of the Act. E. Discriminatory discharge of Standifer, Hart, Davis, Fredenburg, Blankenship, Pool, and Pro ha The Board alleges that the above employees were discharged by all respondents on specified dates in October and November 1941 and have since been refused reinstatement because they joined and assisted the Union. The Associated Farmers and Osborne denied the allegations, and asserted that they had no authority directly or indirectly to discharge the employees named. In its answer the Ice Company denied the above allegations of the complaint. Affirma- tively it alleged that Standifer was laid off on October 3, because of lack of work, and that he never applied for reinstatement ; that Hart was a repair mechanic, and that the Ice Company no longer required the services of a repair mechanic after the change from Diesel to electric power ; that Willard decided to discon- 0 HOLTVILLE ICE AND COLD STORAGE COMPANY 607 tinue the services of Davis about a year prior to his discharge, and that neither Willard nor Smith knew of Davis' membership in the Union prior to his dis- charge ; that Fredenburg was laid off in October 1941 because of lack of work, and that be did not thereafter apply for reinstatement; that Blankenship was laid off because of lack of work, and undoubtedly would have been reinstated had he applied for reinstatement at the commencement of the shipping season, but that he never did apply ; that Herman T. Pool was laid off by his brother Pete Pool, because Pete Pool had been advised that it was against the policy of the Ice Company to employ his relatives, and that Herman T. Pool never did apply for reinstatement ; and that Herman Fruhn was laid off because of lack of work on July 31, 1941, was reinstated in December 1941, worked one day and quit of his own accord. All of the above employees except Davis applied for membership in the Union and designated it as their collective bargaining agent on September 26, 1941; Davis did so on October 3. In view of Pete Pool's admission that he questioned the employees about their union membership, and later reported to Willard that the plant had "gone union", and in view of the fact that Osborne acquired the names of the Union applicants, questioned them, and reported back to Willard, the undersigned finds that Pool and Willard had knowledge of the fact that the above employees had applied for membership in the Union immediately after they did, rejecting the sole denial that they had such knowledge in the case of Davis. Pete Pool and Willard determined which employees should be recalled to work when the plant resumed operations on October 29, 1941. From Osborne's' testimony that Willard was "perturbed", and Pete Pool's testimony that Willard was "sure mad" because the employees joined the Union, as well as by the fact that upon learning that they had taken such action Wil- lard immediately called Osborne, who had earlier assured him of the help of the Assdciated Farmers in the event of labor disturbances, and asked that he interest himself in the situation, the undersigned finds that Willard was disturbed and dismayed that his employees had joined the Union, and sought to combat such activity. Herman T. Pool worked steadily for the Ice Company, except for brief lay-offs in 1937 and 1938, from 1935 to the date of his discharge in the second week of October 1941. Prior to 1935 he had worked for the Ice Company for short periods in 1929 and 1931. Successively he had been promoted from laborer in the store- room to crane operator and finally to engine operator. Willard testified that he decided about a year before Pool's discharge to terminate his services because he -had received complaints that the employees thought Pete Pool was favoring him in various ways. Willard named Herman Smith as the source of his infor- mation regarding the complaints. Neither Willard nor Smith gave the names of any employees who made such complaints. Pete Pool had been superintendent since 1939, more than 2 years before Herman's discharge, and he denied that he had favored Herman in any way. Herman applied'for membership in the Union on September 26, 1941, with the other employees Pete learned of that fact a day or so later and told Herman that it was not a very good idea and that Willard could get plenty of non-union mien to operate the plant. On October 1 Herman went on his vacation, at the in- struction of Pete. At that time Pete said nothing to him about his discharge While he was on vacation he was advised by Osborne to get out of the Union: he told Osborne he would think it over. Later, his brother Pete told him of the decision to discharge him. Some time thereafter Pete asked Herman if lie were going to stick by the Union, and when Herman said that be was, Pete told him that he was riding a "blank train." Herman was the only employee dis- 608 DECISIONS OF NATIONAL LABOR RELATIONS BOARD charged allegedly because of the rule against relatives working at the plant, and Harlan, who was related by marriage to Pete Pool worked for the Ice Com- pany after that time. The record does not show that the no-relative rule was conceived prior to the time when Herman had applied for union membership. , Employees with no experience were given the job of crane operator, or "can- puller," in preference to Herman, who had considerable experience in that work. Employees who had not been given maintenance or repair work during the slack season, which Willard testified was given for the purpose of insuring the return of his regular employees, were retained in the employ of the Ice Company in preference to Herman, who had been given such maintenance work for several seasons, including the one just prior to his discharge. The discriminatory in- vocation of the no-relative rule, shortly after Pete Pool learned of his brother's application for membership in the Union, and directly following Herman's fail- ure to accede to Osborne's request that he leave the Union, convinces the under- signed that the real reason for his discharge was the fact that he had applied for membership in the Union. At the time of his discharge in October 1941, L. H. Davis had been in the employ of the Ice Company since-1932. During the ice shipping season be had charge of the delivery of ice to the packing sheds and assisted Herman Smith in the office. During the slack season he sold ice to customers who came to the plant and continued to work in the office. As noted, the Ice Company contended that he was discharged because there was little work for him to do during the slack season. His discharge at the end of the slack season runs contrary to that contention. At the hearing, the Ice Company also contended that Davis' employ was terminated in order to cut down on the plant overhead. The work which Davis performed was taken over by employees Tom Herring and Jack Garber. Garber, who performed some of the office work done by Davis, was a new em- ployee first hired on a part-time basis on September 1, 1941. He was kept on during the entire slack season in the summer of 1942. For his work on the platform during 1942, Herring's salary exceeded that paid Davis. Davis applied for membership in the Union on October 3. Of all the em- ployees who joined the Union the Ice Company denied only that it had knowl- edge that Davis had joined. However, that denial is not convincing. After the other employees applied for membership on September 26, Herman Smith questioned Davis about the Union meeting. Pete Pool questioned the em- ployees who had applied for membership. Before he -was informed of his discharge, Davis had rejected Osborne's suggestion that he form a Company union, and had informed him of his determination to remain in the Union. The undersigned believes and finds that Osborne reported the results of his confer- ence with Davis to Willard and Smith. Davis' work was admittedly very satisfactory. Willard testified that he had decided to let Davis go at the beginning of the slack season in the summer of 1941, and had instructed Smith to that effect be- fore he left for the summer. When he returned to the plant in September he found that Smith had not carried out his instructions, and again told Smith that Davis was to be discharged. This testimony is rendered improbable by the fact that Davis was not discharged upon Willard's return, but over a month later, after the Ice Company had learned of his application for membership in the, Union, and after he had advised Osborne that he would remain with the Union. It was just a short time after his conversation with Osborne that Davis was informed of his discharge. The undersigned finds that Davis was discharged because he made application for membership in the Union, and not because of the reasons advanced by the Ice Company. HOLTVILLE IC'E AND COLD STORAGE COMPANY 609 In point of service Herman Fruhn was one of the oldest employees of the Ice Company. He started working for the Company as a crane operator in 1929 and continued to do that work until his lay-off in July 1941. After his lay-off he con- tinued to work around the plant for Manchester, the contractor who did some of the work incident to the changeover to electric power. Fruhn applied for membership in the Union on September 26. The Ice Com- pany did not deny that it had knowledge of his application, and in view of Pete Pool's questioning of the employees about who attended the Union meeting on September 26, the undersigned finds that Pool had such knowledge. When Fruhn applied to Pool for his old job within a short time before and after the plant commenced operations in. October 1941, and asked when he should go back to work, Pool put him off saying that it was not yet time for him to go to work. Finally, after continued appeals to Pool, Smith and Willard, Fruhn was given work as a laborer in the storeroom. There the work was so heavy that he was able to complete but one shift and that only with the help of his son, whom he called in to assist him. Thereafter, when he requested Pool to give him his old job back, Pool ignored his request. In its answer the Ice Company stated that Fruhn's work was satisfactory. At the hearing, contrary to the allegation in its answer, the Ice Company con- tended that Fruhn,was not given his old job back in October 1941 because he tinkered with the crane that he operated and got it out of adjustment. Willard testified that Fruhn had tinkered with the crane for years, yet neither he nor Pool claimed that Fruhn had ever been warned not to tinker with the crane or that they disapproved of it. At no time prior to the hearing was Fruhn advised that the reason for the failure to reinstate him was his tinkering with the crane. Because of the foregoing facts the undersigned does not credit the testimony that Fruhn was not rehired because he tinkered with the crane. Several of the men who replaced Fruhn as a crane operator in-1941 had no experince in operating the crane ; as noted, Fruhn had given 11 or 12 years of satisfactory work in that job. The undersigned finds that Fruhn was not given his old job back because Pool learned that he applied for membership in the Union. This finding is not disproved by the fact that Fruhn was later given work in the storeroom. The work in the storeroom was heavy work demanding strong men. Fruhn was a slight, thin individual. It was apparent to the undersigned, as it was to the Ice Company, that Fruhn could not perform that work. The cases of Herman T. Pool, Davis, and Fruhn follow a common pattern. In each case an employee who has given long years of satisfactory service was dis- charged or refused work for alleged reasons which do not stand up under scrutiny. Lester 0. Hart, the oldest employee in point of service, commenced his em- ployment with the Ice Company in 1926. He was first a laborer, then a crane operator, next an engine operator, and finally was made plant mechanic, the position he held at the time of the termination of his employment in October 1941. Hart signed an application for membership in the Union on September 26 with the other employees. The next day, Pete Pool told them that Willard was "sure mad" because the employees joined the Union. A few days later Pool told Hart to go on his vacation. At that time Pool gave no indication that Hart would not be put back to work at the end of his vacation, and the work that Hart was doing had not been completed at that time. During this same period Pool asked Hart if the employees were trying to "blackmail" him in that they did not tell him that 610 DiECISIONS OF NATIONAL LABOR RELATIONS BOARD they were going over to join the Union, adding that he would like to have gone also.` It is clear that Pool knew that Hart had made application to join the Union. When Hart returned to the plant from his vacation, he punched his time card, then sought Pool and asked him what he should do. Pool told him that Willard had instructed him to lay everyone off, and Hart went home. At that time the work which Hart had been doing before his vacation had-not been completed Subse- quently this work was sent out of the plant to be completed. Hart thereafter applied to Pool for reinstatement on numerous occasions without success. The Ice Company contended that Hart's services were terminated because there was no need for the services of a repair mechanic after the change from Diesel to electric power. This appears to be contrary to the facts. At the time when Hart was laid off after his vacation, the work he had been doing was not com- pleted. According to Pool's testimony he did part of the work formerly done by Hart, and part of such work was sent out of the plant to be done. While the amount of repair work undoubtedly decreased after the Diesel engines were elim- inated, the undersigned is not convinced that it decreased to the point where need for the services of a repair mechanic were eliminated altogether. While operating with Diesel power the Ice Company had required two repair mechanics. Wooldridge, the other mechanic, had quit the employ of the Ice Company, so that Hart was the only one left. Hart had done electrical work at the plant prior to the change-over. The fact that Hart was the oldest employee of the Ice Company in point of service; that he had performed satisfactorily practically every duty in the plant ; that he was not offered work in any other department, in combina- tion with the fact that there remained mechanical and electrical work to be done, convinces the undersigned that Hart's services were terminated because he applied for membership in the Union. Arthur Standifer was first employed by the Ice Company in January 1936 He worked for 2 years in the storeroom, for over 2 years as a crane operator, and during part of the last season he worked he was the relief engine operator. Dur- ing the summer of 1941 and up to October 3 he did repair and maintenance work around the plant. Standifer signed an application for membership in the Union on September 26. The Ice Company did not deny that it had knowledge of the fact that Standifer made such application, and the undersigned finds that it obtained such knowl- edge through Pool's questioning of the employees. In its answer the Ice Company alleged that the work Standifer was doing was completed on October 3. Standifer testified that the work he was doing was not completed at that time, and his testimony is credited over Pool's testimony to the contrary, in view of the corroborative testimony of Hart to the effect that the repair and maintenance work was not completed some 10 days later, which testi- mony was not denied. The Ice Company's answer also alleged that Standifer never applied for reinstatement. This appears to be an invalid' contention in view of the customary practice that the Ice Company followed, in notifying its regular employees to report for work in the event they were not present when the plant started or when their services were needed. In any event, Standifer's 'testimony that he did apply to Pool for reinstatement is undenied, and is credited, as is Standifer's testimony that he talked to Pete Pool and Herman Smith on a number of occasions both before and after the plant started operations in October 1941, so that they knew he was available for work Willard testified that work was available which Standifer could do, but that he and Pool selected men they thought were better fitted to do the work. It has been pointed out that em- 41n view of Pool's anti-union statements, both before and afterwards, the undersigned finds that on this occasion Pool was merely being facetious. HOLTVILLE ICE AND COLD STORAGE COMPANY ' 611 ployees were put on as crane operators who had no previous experience in that work. Standifer had almost 3 years' experience as a crane operator . Some of the men given the crane operating jobs in the 1941-42 season had little or no experi- ence. Men who had never worked for the Ice Company before were selected to work in the storeroom in preference to Standifer. Under these circumstances the undersigned finds that Standifer was discharged on October 3, and was later refused reinstatement because he made application to join the Union on September 26. Perry T. Blankenship was first hired by the Ice Company to work in the storeroom in 'May 1940. He worked till July, when he was laid off. He was again employed in September 1940 as a crane operator. During the last part of the season in the summer months of 1941 be worked as a relief crane operator and was a relief engine operator. After his lay-off in July he worked' at short periods for the Ice Company and for the contractors who were doing the work incident to the change-over from Diesel to electric power. - He applied for membership in the Union with the other employees on Septem- ber 26. Within a day or so, Pete Pool asked him if he had joined the Union. When replied that he had, Pool told him that the Union "didn't have a chance." The Ice Company's answer alleges that Blankenship never applied for rein- statement. Blankenship testified that in October before the plant commenced operations he asked Pool when he could go back to work, and that Pool ignored his request. This was not denied by Pool, and is credited by the undersigned. Failure to put Blankenship back to work as a crane operator would hardly be conclusive of the fact that he was being denied work because of his Union activities, in view of the fact that he had been with the Ice Company for only two seasons, although it seems logical that he would be better qualified to perform such work than those who had never done it. However, the fact that entirely new employees and employees with much less experience were given work in the storeroom in preference to Blankenship convinces the undersigned that Blankenship was not reinstated because Pool learned that he had applied for membership in the Union. Henry C. Fredenburg first started to work for the Ice Company in November 1t37. He first worked as a laborer, and thenebecame a truck driver, which was the type of work he was doing at the time of his lay-off in October 1941. During the slack season he delivered clear ice on an established route ; during the busy season he delivered ice to the vegetable packing sheds. On September 26 he joined the Union with the other employees A few days later Pete Pool asked him if he had joined the Union and he replied that be had. In its answer the Ice Company stated that Fredenburg would undoubtedly have been reinstated had he applied at the commencement of the vegetable shipping season, but that he never applied. At the hearing Willard admitted that Fredenburg applied to, him for reinstatement, and did not dispute Freden- burg's testimony that the application was made in December, which would be_ just before the commencement of the vegetable shipping season. His request for reinstatement was denied. Shortly thereafter the Ice Company hired an entirely new employee in preference to reinstating Fredenburg. Such evidence clearly establishes the discriminatory refusal to reinstate Fredenburg. The undersigned finds that Fredenburg was denied reinstatement because of the fact that he had applied for membership in the Union. In making the above findings the undersigned has taken into consideration the fact that because of the change-over from Diesel to electric power the jobs of six or seven employees would be eliminated. However, before the plant 540012-44-vol. 51--40 - 612 ° DECISIONS OF NATIONAL LABOR RELATIONS BOARD commenced operations in October 1941, four or five employees who started the preceding season quit and thus eliminated themselves from consideration. While the pay rolls during the first half of 1942, indicate that the Ice Company employed, on the average, 6 or '7 fewer men , the pay rolls for that period also disclose that no fewer than 5, and at times as many as 11 or more, new men were used. In other words , there appears to have been steady work from January 15, 1942, to July 15, 1942, for no fewer than five new men. By hiring entirely new employees and employees with limited experience in preference to the more experienced and satisfactory employees listed above , the Ice Company defeated its contention that such employees were not reinstated because of lack of work. In considering whether the above employees were discharged or refused reinstatement because of their Union activities , the undersigned is of the opinion that some weight is to be given to the fact that Fruhn was the only employee who had applied for membership in the Union and who had remained steadfast in his views who was employed to work during the following season. As noted, Fruhn was given heavy work which he had not done before and which lie obviously could not do . On the contrary those who did not join the Union, or those who, having applied for membership, thereafter actively promoted the Association were given steady employment and the preferred jobs. Through Pool's questioning of the employees about their Union membership and through Osborne's activities against the Union and in favor of the Association, the Ice Company was clearly informed as to which of the employees remained steadfast with the Union, and which employees were willing to go along with the Association. Despite Willard's and Pool's denials, the undersigned is con- vinced that this was one of the factors which determined which of the em- ployees were to be recalled to work in the season beginning October 29, 1941. The proof does not support the allegation that the respondents other than the Ice Company discriminated against the above employees in regard to their hire and tenure of employment. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE e The activities of the respondents set forth in Section III above, occurring in connection with the operations of the respondent Ice Company 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 dis- putes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that the respondents have engaged in certain unfair labor practices, the undersigned will recommend that they be required to cease and desist therefrom and that they take certain affirmative action designed to effectuate the policies of the, Act. It has been found that the respondents have dominated and interfered with the formation of the Association and have contributed support thereto. The effect and consequences of the respondents' domination of, interference with, and support of the Association, as well as continued recognition of the Associa- tion by the Ice Company as the bargaining representative of its employees, con- stitutes a continuing obstacle to the free exercise by its employees of the rights guaranteed to them in the Act. Because of the respondents' illegal conduct with regard to it, the Association is incapable of serving the Ice Company's employees as a genuine collective bargaining agency. Accordingly, it will be recommended HOLTVILLE ICE AND COLD STORAGE COMPANY 613 that the Ice Company withdraw all recognition from the Association and com- pletely disestablish it as the representative of any of its employees for the purposes of dealing with it concerning grievances, labor disputes, wages, rates of pay, hours of work, or other conditions of employment. The contracts dated November 1, 1941, and November 1, 1942, between the Ice Company and the Association are invalid since they are a means whereby the Ice Company utilizes an employer-dominated labor organization to frustrate self-organization and to defeat collective bargaining by its employees. Moreover, they provide for exclusive recognition of the Association, although at the time the contracts were made that organization had not been designated by an uncoerced majority of the employees covered by the contract as their representative for the purpose of collec- tive bargaining. The undersigned will recommend that the Ice Company cease and desist from giving effect to these or any other agreement with the Association in respect to rates of pay, wages, hours of work, or other conditions of employment. Nothing in these recommendations, however, shall be deemed to require the Ice Company to vary or abandon the wage rates or other substantive features of its relations with its employees which the Ice Company may have established in con- formity with the contracts, as extended, renewed, modified; supplemented, or superseded. The Associated Farmers and Hugh T. Osborne have dominated and interfered with the formation of the Association, and contributed support thereto. Such activities were carried on in order to forestall organization by a legitimate labor organization. It will be recommended that the Associated Farmers and Hugh T. Osborne cease and desist from such activities, and that they inform their members and contributors of such injunction. It has been found that the Ice Company discriminated in regard to the hire and tenure of employment of Arthur Standifer, Lester C. Hart, L. H. Davis, H. C. Fredenburg, Perry T. Blankenship, Herman T. Pool and Herman Fruhn because they applied for membership in the Union. It will be recommended that the Ice Company offer to those employees immediate and full reinstate- ment to their former or substantially equivalent positions without prejudice to their seniority and other rights and privileges, dismissing if necessary new employees hired since the date of the Ice Company's discrimination against the above employees, and make them whole for any loss of pay each has suffered by, reason of the discrimination against him from the date of the Ice Company's discrimination against him to the date of the Ice Company's offer of reinstate- ment, less his net earnings 6 during said period. Upon the basis of the foregoing findings of fact and upon the entire record in the case, the undersigned makes the following : CONOLusIONs OF LAW 1. Truck Drivers, Warehousemen and Helpers Union 898, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers, A. F. of L., and Holtville Ice and Cold Storage Company Employees Association, are labor organizations within the meaning of Section 2 (5) of the Act. 5 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 else- where than for the respondent, which would not have been incurred but for his unlawful discharge and the consequent necessity of his seeking employment elsewhere. See Matter of Crossett Lumber Company and United Brotherhood of Carpenters and Joiners of America, Lumber and Sawmill Workers Union, Local 2590, 8 N. L. R. B. 440. Monies received for work performed upon Federal, State, county, municipal, or other work-relief projects shall be considered as earnings. See Republic Steel Corporation v. N. L. If. B., 311 U. S. 7. 614 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2. The respondents Associated Farmers of Imperial County, and Hugh T. Osborne, are employers of the employees involved herein, within the meaning of Section 2 (2) of the Act. 3. By interfering with, restraining, and coercing the employees of the Ice Company in the exercise of the rights guaranteed in Section 7 of the Act, the respondents have engaged in and are engaging in unfair labor practices, within the meaning of Section 8 (1) of the Act. 4. By dominating and interfering with the formation of the Association and by contributing support to it, all the respondents have engaged in and are engaging in unfair labor practices, within the meaning of Section 8 (2) of the Act. - 5. By discriminating in regard to the hire and tenure of employment of Arthur Standifer, Lester C. Hart, L. H. Davis, H C. Fredenburg, Perry T. Blankenship, Herman T. Pool and Herman Fruhn, the respondent Ice Company has engaged in and is engaging in unfair labor practices, within the meaning- of Section 8 (3) of the Act. 6. The 'aforesaid unfair labor practices are unfair labor practices affecting commerce, within the meaning of Section 2 (6) and (7) of the Act. 7. The respondents have not engaged in unfair labor practices within the- meaning of Section 8 (5) of the Act. 8. The respondents Associated Farmers of Imperial County and Hugh T. Osborne have not engaged in unfair labor practices within the meaning of Section 8 (3) of the Act. RECOMMENDATIONS Upon the above findings of fact and conclusions of law, the undersigned recom- mends that : 1. The respondent Holtville Ice and Cold Storage Company, its officers, agents, successors, and assigns , shall: (a) Cease and desist from: (1) Dominating or interfering with the formation of the Holtville Ice ands Cold Storage Company Employees Association, or with the formation and admin- istration of any other labor organization of its employees and from contributing support and assistance to said Association or to any other labor organization of its employees,; (2) Giving effect to the contract of November 1, 1942, with the Holtville Ice and Cold Storage Company Employees Association, or to any extension, renewal, modification, or supplement thereof, or to any superseding contract ; (3) Discouraging membership in Truck Drivers, Warehousemen and Helpers Union 898, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers, A. F. of L., or any other labor organization of its, employees by discharging or refusing to reinstate any of its employees or in any other manner discriminating in regard to their hire and tenure of employment or any term or condition of employment ; (4) In any other manner interfering with , restraining, or coercing its em- ployees in the exercise of the right of self-organization, to form, join, and assist labor organizations, to bargain collectively through representatives of their own. choosing, and to engage in concerted activities for the purposes of collective bargaining or other mutual aid and protection, as guaranteed in Section 7 of the Act ; (b) Take the following affirmative action which the undersigned finds will effectuate the policies of the Act ; (1) Withdraw all recognition from Holtville Ice and Cold Storage Company- Employees Association , as the representative of any of its employees for the- HOLTVILLE ICE AND COLD STORAGE COMPANY 615 purposes of dealing with the respondent Ice Company concerning grievances, labor disputes , rates of pay , wages, hours of employment , or other conditions of em- ployment and completely disestablish the Association as such representative ; (2) Offer to Arthur Standifer, Lester C. Hart, L. H. Davis, H. C. Fredenburg, Perry T. Blankenship, Herman T. Pool and Herman Fruhn, immediate and full reinstatement to their former or substantially equivalent positions without prejudice to their seniority and other rights and privileges; (3)- Make whole Arthur Standifer , Lester C. Hart, L. H. Davis, H C. Freden- .burg, Perry T. Blankenship , Herman T. Pool and Herman Fruhn, for any loss of pay they may have suffered by reason of the respondent Ice Company's discrimination against them by payment to each of a sum of money equal to that which he normally would have earned as wages from the date of his discharge to the date of the offer of reinstatement , less his net earnings a during said period ; (4) Post immediately in conspicuous places in its plant and maintain for a period of not less than sixty ( 60) consecutive days from the date of posting, notices to its employees stating ( 1) that the respondent Ice Company will not engage in the conduct from which it is recommended that it cease and desist herein; ( 2) that the respondent Ice Company will take the affirmative action .herein recommended ; and (3 ) that its employees . are free to remain or become members of Truck Drivers, Warehousemen and Helpers Union 898 , affiliated with the International Brotherhood of Teamsters , Chauffeurs , Warehousemen .and Helpers , A. F. of L., and that the Ice Company will not discriminate against any employee because of such membership or activity ; (5) File with the Regional Director for the Twenty -first Region ( Los An- geles, California ), within ten (10) days from the receipt of this Intermediate Report a report in writing setting forth in detail the manner and form in which it has complied with the foregoing recommendations. 2. The respondents Associated Farmers of Imperial County and Hugh T. Os- borne, their officers, agents , successors and assigns , acting in the interest of the respondent ' Ice Company, or in the interest of any other employer , shall : (a) Cease and desist from: (1) Dominating or interfering with the formation of Holtville Ice and Cold .Storage Company Employees Association , or with the formation or administra- tion of any other labor organization of the employees of the Ice Company, or :any other employer, and from contributing support and assistance to said As- sociation , or to any other labor organization of the employees of the Ice Com- pany, or of any other employer ; (2) Soliciting and "collecting funds from the respondent Ice Company , or from any other employer , to be used in whole or in part for the purpose of interfering with the rights of employees guaranteed in Section 7 of the Act ; (3) In any other manner interfering with, restraining , or coercing the em- ployees of the Ice Company, or of any other employer, in the exercise of the right to self-organization , to form, join, or assist labor organizations , to bargain collectively through representatives of their own choosing , and to engage in concerted activities for the purpose of collective bargaining, or other mutual aid and protection , as guaranteed in Section 7 of the Act; (b) Take the following affirmative action, which the undersigned finds will effectuate the policies of the Act : (1) Immediately send notices in writing through the United States mails to all members and contributors of the Associated Farmers, including the respond- 0 See footnote 5, supra. 616 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ent Ice Company, stating that each of them will not engage in the conduct from which it is herein recommended that they cease and desist ; (2) Notify the Regional Director for the Twenty-first Region in writing, within ten (10) days from the receipt of this Intermediate Report, what steps they have taken to comply with the foregoing recommendations. It is further recommended that unless on or before ten (10) days from the receipt of this Intermediate Report the respondents notify said Regional Di= rector in writing that they will comply with the foregoing recommendations, the National Labor Relations Board issue an order requiring the respondents to take the action aforesaid. It is recommended that the complaint be dismissed insofar as it alleges that tbq respondents engaged in unfair labor practices within the meaning of Sec- tion 8 (5) of the Act. It is further recommended that the complaint be dismissed insofar as it alleges that the Associated Farmers of Imperial County and Hugh T. Osborne engaged in unfair labor practices within the meaning of Section 8-(3) of the Act. As provided in Section 33 of Article II of the Rules and Regulations of the National Labor Relations Board-Series 2-as amended, effective October 28, 1942, any party may within fifteen (15) days from the date of the entry of the order transferring the case to the Board, pursuant to Section 32 of Article II of said Rules and Regulations, file with the Board, Shoreham Building, Washington, D.C., an original and four copies of a statement in writing setting forth such exceptions to the Intermediate Report or to any other part of the record or proceeding (including rulings upon all motions or objections) as he relies upon, together with the original and four copies of a brief in support thereof. As further provided in- said Section 33, should any party desire per- mission to argue orally before the Board, request therefor must be made In writing to the Board within ten (10) days from the date of the order trans- ferring the case to the Board. FRANK A. MOURITSEN, Trial Examiner. Dated April 23, 1943.