Olaa Sugar Co., Ltd

,67O DECISIONS OF NATIONAL LABOR RELATIONS BOARD jority of the employees in, voting, group -A do, not vote for; the Union which is seeking to represent.them in a separate unit, employees in that group, will appropriatelybe included in the production and, mainte- nance -unit and their votes shall be,pooled with, those in voting group B,' and the Regional Director is, instructed ;to issue a certification of representatives to. the labor, organization selected, by_ ar majority of employees in the-pooled group, which the Board, in such circumstances, finds to be a single unit appropriate for purposes of collective bar- gaining. [Text of Direction of Elections omitted from publication.] MEMBER MURDOCK took no, part in the- consideration of the above Decision and Direction of Elections. 'if the votes are pooled, they are 'to be tallied in the following manner : The votes for the union seeking a separate unit shall be counted as valid votes, but neither for nor against any union seeking the more. comprehensive unit; all other votes are to be' accorded their face value whether for representation by a union seeking the comprehensive unit or for no union. American Potash & Chemical Corporation, 107 NLRB 1418, 1427. - O1aa Sugar Company, Limited and Favorito P. Banez ILWU Local 142 and Favorito P. Banez. Cases Nos. 37-CA-84 and 37-CB-6. October X6,1955 , DECISION AND ORDER On January 20,1955, Trial Examiner David F. Doyle issued his In- termediate 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 certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto. Thereafter, the Respondent Company awl' the Respondent Union filed exceptions to the Inter- mediate Report and supporting briefs, ' The Board has reviewed the rulings made by the Trial Examiner at the hearing, and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Inter- mediate Report, the exceptions and briefs, and the entire record in the case, and hereby adopts the Trial Examiner's findings,' conclusions,2 and recommendations. 1 in his findings of fact, the Trial Exammer, inadvertently failed to find that the Respondent Company'is'engaged in commerce, within the meaning of the Act. We so find: 9-In his conclusions. of law, the Trial Examiner inadvertently, failed to conclude that by executing and enforcing the contract provision in issue herein, the Respondent union has engaged .in and is engaging in unfair labor practices within the meaning of Section 8' (b) (1) (A) and Section 8 (b) (2) o`f the Act. We so conclude. 114 NLRB No. 112. OLAA SIJGAR "COMPANY, LIMITED 671 1'. , The Trial Examiner found, and we agree,-that Banez, the Charg- ing Party herein,'is'not an agricultural worker "excluded from' the coverage of the Act. The Respondents contend that Banez should be found to be an agri= cultural worker under the Board's.decision in the Clinton Foods case? In that case, the Board found, in accord with the desires of the parties, that "semi-drivers," who haul fruit exclusively from the road- side to the employer's processing plant, are industrial employees; and that "goat drivers," who haul fruit exclusively from the employer's groves to the roadside, are agricultural employees. The Board fur- ther found that "flat drivers," who haul fruit directly from the groves to the plant, are agricultural employees, because of the proximity of the groves to the processing plant (3 miles' maximum), the fact that in hauling directly from the groves to the plant the "flat driv- ers" spend a substantial part of their time on the farm property, and the fact,that the operation is conducted by and for the benefit of the employer who admittedly is engaged in a farming operation. For these reasons, the Board concluded that the "flat drivers" were dis- tinguishable from similar drivers whom the Board, in the past, had customarily found to.be nonagricultural 4 The Respondents contend that the Respondent Company's drivers fall into the same category as the "flat drivers" in the Clinton Foods case, and are therefore agricultural workers: However, Banez and the other truckdrivers of the Respondent Company. are engaged ex- elusively in hauling sugar cane from the roadside of the sugar cane fields to the Respondent Company's plant. It appears, therefore, that the general operation performed by the Company's truckdrivers is more like that of the "semi-drivers"- in the Clinton Foods case, and not like that of the "flat "drivers;" and is therefore industrial in character. Moreover, even if the general operation performed by the Company's truckdrivers be considered as, more like that of the "flat drivers" in that case, there are distinguishable factors. Thus, some of the fields from which the cane is hauled are as much as 23 miles from the plant. Moreover, while the, truckdrivers spend about, 38 percent of their time at the roadside during the loading of the trucks, they normally just stand around while others do the loading, and do nothing more after the truck is loaded than to slash off the ends of cane sticks which might be protruding from the truck so that, the cane sticks do not strike any objects or persons when, the truck is being driven. Accordingly; unlike the "flat. drivers" in the Clinton Foods case, the drivers in the instant case perform-no actual'work on the farm itself so as to be even partly engaged in an, agricultural a Clinton Foods, Inc., 108 NLRB 85. 4 See L Maxey, Inc ,'78 NLRB 525, and cases cited therein. 672 DECISIONS OF NATIONAL LABOR RELATIONS BOARD function.5 For, contrary to the -contention of the, Respondent Com- pany, we do not consider the use of the Respondent Company's private roads by the drivers for the sole purpose of transporting the cane from the roadside to the plant as work actually performed on the farm, where the general practice is then to drive the trucks over the public highways to the plant, and the drivers spend 60 percent or more of their driving time on the public highways. And there is, of course, clearly no merit to the Respondent Company's contention that the time spent by the drivers at the plant during unloading is time spent in work actually performed on the farm. In addition, independent growers cultivate about as much acreage and grow about as much sugar cane for processing at the Company's plant as the Company does, and the Company's truckdrivers spend about one-half of their time hauling the cane of independent growers. Therefore, about one- half of the Company's trucking operation is an independent trucking operation which is conducted for the benefit of other employers. Finally, although the Company's transportation section is considered by the Company as being part of its harvesting department, we note that the truck dispatcher is located at the plant, and that the truck dispatcher supervises the work of the drivers from the plant, which also indicates that the Company's trucking operation is carried on as an incident to, or in conjunction with, its plant operations, rather than its farming operations. We therefore reject the Respondents' con- tention that Banez should be found to be an agricultural worker under the Board's decision in the Clinton Foods case. Moreover, this case is also distinguishable from Maneja v. Waialua Agricultural Company, recently decided by the United States Supreme Court.6 In that case, the Supreme Court held that sugar cane plan- tation railroad employees who haul cane from the fields to the proc- essing plant, and also transport farm laborers and farming equipment to the fields, on a narrow-guage railway extending throughout the plantation, are agricultural employees as defined in the Fair Labor Standards Act' Thus, the Court did hold that employees who trans- port cane from the fields to a processing plant, like the truckdrivers in the instant case, are agricultural employees. However, the Court stressed the dual function of the employees involved there in support of its finding. Thus, at the very outset the Court stated that the employees there "not only" haul cane from the fields to the plant, "but also" transport the farm laborers and farm equipment to the fields; later stated that "The railroad is used exclusively for the effectuation 5 Thus, the "part-time" rule of the Clinton Food8 case, which our dissenting colleague relies on, is not applicable to the instant case. 6 349 U. S 254, decided May 23, 1955. 4 As stated by the Trial Examiner, the Board, because of the rider to its appropriation, must bp governed by the definition of agricultural employee in Section 3 of the Fair Labor Standards Act. OLAA SUGAR COMPANY, LIMITED 673 of the-agricultural, function of transporting exempt agricultural work- ers to the fields, together with their equipment and supplies, and hauling freshly cut cane to the processing plant"; and concluded with the statement that "Without it or some other `haul,' the land could not be cultivated and the cane, after harvest, would spoil in the fields and be lost." [Emphasis supplied.] In the instant case, the truck- drivers perform the single function of transporting the cane from the fields to the plant, and have no connection with the cultivation of the cane. Moreover, the Court expressly rested its decision on the fact that "Waialua's transportation system is all either in or contiguous to its fields, save the necessary trackage at the mill to accommodate cane cars arriving from various sections of the plantation." [Empha- sis supplied.] In the instant case, no part of the Respondent Com- pany's transportation system is in the fields, for as we have found above, we do not consider the use of the Company's private roads by the drivers for the sole purpose of transporting the cane from the roadside of the fields to the plant as work performed on the farm, where the general practice is then to drive the trucks over the public highways to the plant, and the drivers spend 60 percent or more of their driving time on the public highways. And while all of these private roads appear to be contiguous to the fields, a considerable por- tion of the public highways used are not contiguous to the fields. In fact, a long public highway not contiguous to any of the fields must be used to transport cane from the Company's southern fields to the plant which is in the geographically separated northern fields. Added to this, of course, is the fact that 60 percent or more of the Company's transportation system is on the public highways, whereas Waialua's entire transportation system 'was on its own private railroad beds. Finally, the Court also rested its decision on the fact that Waialua transported on its railroad from the fields to the plant only cane that Waialua grew in the fields; whereas in the instant case independent growers cultivate about as much acreage and grow about as much cane for processing at the Company's plant as the Company does, and the Company's truckdrivers spend about one-half of their time hauling the cane of independent growers. Thus, in Bowie v. Gonzales, 117 F. 2d 11 (C. A. 1), the court of appeals held that the agricultural exemption under the Fair Labor Standards Act did not apply to transportation employees who hauled cane grown by independent growers. And in Calaf v. Gonzales, 127 F. 2d 934 (C. A. 1), the court held this exemption to be inapplicable to transportation em- ployees hauling cane grown bj their own employer, because in its opinion the facts showed that the transportation was incident to mill- ing rather than to farming. In its discussion of the Bowie and Calaf cases in the Waialua case, the Supreme Court did not criticize either case, but, on the contrary, recognized that both were distinguishable 674 DECISIONS OF NATIONAL LABOR RELATIONS BOARD from,Waidlua, stating that "We do not believe that -either' Bowie or Calaf is.apposite." s We' conclude, therefore, that the agricultural exemption,-under the' Fair, Labor Standards, Act does- not apply to transportation. employees, who, as, here, haul both cane grown by their employer and. cane grown by independent, growers. . In view of the foregoing, and upon the entire record, 'we find that Banez is not an agricultural laborer. .. 2..'- The Trial Examiner -found, and we agree, that.the provision in the, contract between the, Respondent Company and • the Respondent Union under, which Banez was discharged is illegal, . and that. the Respondent, Union and the Respondent Company violated the Act by respectively causing the discharge of, and discharging,. Banez pursuant to that provision. The -provision in the contract reads as follows : "Any claim by the-, Union; that action on the job, of a non-union employee covered by this, agreement is .disrupting harmonious working, relations may be taken' up as a grievance. Repeated disruption of harmonious working relations shall be grounds for discipline or discharge." [Emphasis supplied.] On October 19, 1953, the Union requested the Company to discharge Banez, who was not a member of the Union, for violation of this provision, but at the same time stated that the Union-) felt-•that it, could take care - of two union' member ;employees ,}vho-had engaged in the same conduct as Banez. On December' 17, 1953, the Company discharged Banez for the stated reason that he had violated this provision of the contract; and in, another letter to Banez on January 7,1954, the Company again stated this as the reason for the discharge. The two union member employees who had en- gaged in the same conduct for which Banez was discharged were still employed by ,the Company at the time of the hearing. • In•essence, the provision of the contract gives the Union the right to request, and the Company to effect, the disciplining'or discharge of only nonunion employees for "disrupting harmonious working rela- tions," and gives the Union and the Company no such right with re- spect to union members. By thus subjecting nonunion employees to possible -discipline or discharge for such conduct and exempting union employees, the necessary effect of such a provision is to en- courage--membership in the Union in a manner not permitted -by Sec- tion 8 (a) (3) of the Act.' The provision is, therefore, discrimina- "'See also Farmers Irrigation Co v. McComb, 337 U S. 755, where the Supreme Court noted that one requirement for the agricultural exemption is that the "practices be in- cidental to `such'- farming" (Id , 766, footnote 15). "Thus " said the Court, "processing on a farm of commodities produced by other farmers is incidental to or in conjunction with the'farmiug ' operation of the other farmers and not incidental to or in conjunction ,with the farming operation of the farmer on whose premises the processing is done. Such processing is, therefore, not within the definition of agriculture," citing with approval -Bowie v Gonzales, supra (Id , 766-767). [Emphasis supplied.] -' ' 4The-proviso to Section 8 (a) (3)-,only permits compulsory 4hnion•membership under certain prescribed conditions. - - OLAA SUGAR fCOMPANY,- LIMITED, 675 tory per se. Moreover, it'is clear, from the disparate treatment'given Banez, a nonunion employee on the one hand, and the two union mem- ber employees',on the other hand, that the provision was-discrimina- torily, enforced. against Banez. Accordingly, we find that the Union's request for the,.discharge of Banez, and the Company's-compliance with that request, pursuant to such a, discriminatory provision, were unlawful.'° . - The Respondents contend that the contract provision is not illegal, because it simply, incorporates' the right. of the Union and the Com- pany to effect the 'discharge of an employee for "disrupting harmo- nious working' relations." -Even if the Union and the Company jointly did 'have the right, to effect a discharge for such reasons un- related to any aspect of union membership or'union fealty," they could not lawfully incorporate such Tight in a. contract provision 'which on its face applies only to' nonunion -employees and thus discriminates against such employees for what might otherwise be valid grounds for effecting a discharge. No do we find any merit *in the Respondent Company's further contention that the provision is' not illegal, be- cause the contract does not restrict or abrogate the Company' s basic right, apart from the contract, to discipline or discharge union em- ployees ' for. engaging in such conduct. The contract may not restrict or abrogate the Company's 'basic right in this respect, but it does restrict and abrogate any joint action in this respect by the Company and the Union and is thus discriminatory. This was clearly demon- strated by the disparate treatment of Banez, the nonunion employee, and the, two o union employees who had engaged in the same conduct as . Baliez. The Company also contends that ' the provision is not illegal, because it only obligates the Company to entertain union grievances involving disruptive conduct by a nonunion employee, and does not require the Company to discipline or discharge the employee. The concluding sentence of the provision states that "Repeated dis- ruption of harmonious working, relations shall be grounds for dis- cipline or discharge." [Emphasis supplied.] In our opinion, this mandatory language does require the Company to discipline or dis- charge, upon a grievance presented by the Union, a nonunion employee' who has engaged in "repeated disruption of,harmonious working relations." Accordingly, we find no merit in this contention. 'O For the reasons 'stated by him, we agfee with the Trial Examiner's finding that Banez' alleged poor, work record was not a-motivating factor in the Company' s decision 'to discharge Banez. In any event , the Company' in its brief concedes that Banez' alleged -bad work record-was ,not the motivating cause for his'discharge , but-was-at most only a factor that was considered in determining whether, the disciplinary action to be taken under the contract provision `should be a discharge , ss See, however, Studebaker ' Corporation, ' 110 NLRB 1307, where the Board reserved ruling on a similar issue. 1, 1 387644-56-vol. 114-44 676 DECISIONS OF NATIONAL LABOR RELATIONS BOARD . The Respondents also contend that the discharge of Banez under the contract provision was not illegal, because they were simply exer- cising their right to effect the discharge of an employee for "disrupting harmonious working relations." As already. indicated, we do not nec- essarily agree with the contention that the Union and the Company jointly had the right to effect a discharge for such reasons unrelated to any aspect of union membership or union fealty. In any event, however, the discharge of Banez under a provision which was other- wise discriminatory on its face was clearly illegal, particularly where, as here, there-is other evidence, which shows that the provision was dis- criminatorily enforced against Banez, viz., the disparate treatment of Banez, the nonunion employee, and the two union employees who had engaged in the same conduct as Banez. Finally, the Respondent Company urges as a defense to the dis- charge of Banez that his conduct was seriously jeopardizing the Com- pany's operations and might have resulted in work stoppages. How- ever, such economic pressures on an employer are no defense to what is otherwise a discriminatory discharge.12 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 : I. Respondent Olaa Sugar Company, Limited, its officers, agents, successors, and assigns, shall : A. Cease and desist from: (1) Performing or giving effect to paragraph 8, section I, of its contract with ILWU Local 142, which discriminates between union and nonunion employees of the Company. (2) Encouraging membership in ILWU Local 142, or in any other labor organization of its employees, by the execution or enforcement of such a discriminatory provision. (3) In any other manner interfering with, restraining, or coercing its employees in the exercise of their rights under Section 7 of the Act, except to the extent that such right may be affected by an agree- ment in conformity with 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 Favorito P. Banez 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 earnings suffered as a result of the discrimination against him, in the manner set forth in the section of the Intermediate Report entitled "The Remedy." is See The Englander Company, Inc., 108 NLRB 38; Wyandotte Chemicals Corporation, 108 NLRB 1406. OLAA SUGAR COMPANY, LIMITED 677 (2) Preserve and make available to the Board or its agents upon request, for examination or copying, all payroll records, social-security payment records, timecards, personnel records and reports, and all other records necessary or useful to an analysis of the amount of back pay due and the rights of employment under the terms of this Order. (3) Post at its office and mill at Olaa, Island of Hawaii, Territory of Hawaii, copies of the notice attached hereto marked "Appendix A." 13 Copies of such notice, to be furnished by the Regional Director for the Twentieth Region, shall, after being duly signed by a repre- sentative of the Company, be posted immediately upon receipt thereof .and maintained by it, for sixty (60) consecutive days thereafter in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken to insure that such notices are not altered, defaced, or covered by other material.14 (4) Notify the Regional Director for-the Twentieth Region in writ- ing, within ten (10) days from the date of this Order, what steps the Company has taken to comply herewith. II. Respondent ILWU Local 142, its officers, representatives, agents, successors, and assigns, shall : A. Cease and desist from : (1) Performing or giving effect to paragraph 8, section I, of its contract with the Company, which discriminates between union and nonunion employees of the Company. (2) Causing or attempting to cause the Company to discriminate against any of its employees because such employees are not members of the above-named labor organization. (3) In any other manner restraining or coercing employees of the Company in the exercise of their rights under Section 7 of the Act, except to the extent that such right may be affected by an agreement in conformity with 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) Make whole Favorito P. Banez for any loss of pay suffered by reason of the discrimination against him in the manner set forth in the section of the Intermediate Report entitled "The Remedy." (2) Notify the Company and Favorito P. Banez, in writing, that the Union withdraws its objection to his employment as a senior cane truckdriver, and requests the Company to offer Banez immediate and full reinstatement to his former or an equivalent position. v In the event that this Order is enforced by a decree of a United States Court of Appeals, there shall be substituted for the words "Pursuant to a Decision and Order," the words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order." 14 The record indicates that the employees live at different places throughout the area owned or controlled by the Company . This provision of the Order requires that copies of the notice be posted in all those places where such notices are customarily posted for employees. 678 DECISIONS OF NATIONAL LABOR, RELATIONS BOARD '(3)--Post' at tall' its business offices in the Olaa area, copies of the notice- attached hereto marked "Appendix B." 15 Copies of such -notice;- to-be furnished- by the Regional. Director for the Twentieth =Region, shall, after being signed by a representative of said Union, be •posted:by it immediately upon receipt, thereof and .maintained by it for sixty (60) consecutive days thereafter in conspicuous places,, in- cluding all places where -notices to members are -customarily posted. 'Reasonable' steps shall be taken to insure that such notices are not altered, defaced, or covered by other material. 16 (4) Mail to the Regional Director for the Twentieth Region, signed copies of the notice attached hereto marked Appendix B for posting, 'the'-Company willing, at the Company's office and mill at Olaa, Island of Hawaii, Territory of Hawaii, in places where notices to employees are customarily posted. Copies, of said notice, to be furnished by the Regional Director for the Twentieth Region, shall, after being duly signed as provided above, be returned forthwith to the Regional Di- rector for such posting. (5) Notify the Regional Director for the Twentieth Region in writ- ing, within ten (10) days from the date of this Order, what steps it has taken to. comply herewith. ACTING CHAIRMAN RODGERS, dissenting : I would dismiss the complaint in this case on the ground that the Company's drivers, including Banez, are agricultural employees, and thus excluded from the Act's coverage. The Company's drivers haul sugar cane from the fields on which the cane is grown to the'Company's processing plant. A little more than half the fields' acreage, or 7,418 acres, is owned and cultivated by the Company; the balance, or 6,911 acres, is owned and cultivated by inde- pendent growers. To 'the extent that the drivers haul sugar cane grown on company- owned land, I believe that the Board; under the Supreme Court's de- cision in Maneja v. Waialua Agricultural Company, 349 U. S. 254, must find the drivers to be agricultural employees. As I read the Waialua case, the Supreme Court there said that under "the compre- hensive wording of the agricultural exemption"^ the transportation of sugar cane to a processing plant by a grower of the cane is an agri- cultural function.'' That the drivers in this case do not haul'laborers 15 In the event that this Order is enfoiced by a decree of a United States Court of Appeals, there shall be substituted for the words "Pursuant to a Decision and Oider" the words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order , 1e The record indicates that notices to employees are posted by the Union throughout the holdings of the Company in `the Olaa area. This provision requires that copies of this notice be posted in all those places where notices are 'customarily posted for employees. 17 The essence of the Court's thinking in the Wasaiua case with respect to the agricultural exemption appears. I believe, in this passage, 349 U S. 254, 261: Furthermore, had Waialua not owned a mill its transportation activities from field to mill would come squarely within the agriculture exemptions covering "delivery to 0 , (- " ,OLAA. SUGAR, COMPANY;' LIMITED, !; ; CI 679;- and equipment, and that'they are'routed,over public highways for a portion- of their hauls, are. factors -which, I believe,.are not sufficient lo so differentiate the "drivers from-the- railroad, workers in Waialua case as,to-give them a different status ,under the agricultural exemp- tion. To the extent,'however, that the drivers haul cane grown on land owned and cultivated by the independent growers, they appear *to be engaged ma commercial hauling:venture undertaken by the Company. To that, extent, therefore, • I, w ould find the drivers to be engaged in nonagricultural work. - . ' - But in the Clinton Foods case, 108 NLRB 85, 89, the Board recently held that employees who divide their time between agricultural and nonagricultural employment, spending a substantial part of their time in performing agricultural duties, will be deemed to be "agricultural laborers." I would apply this holding of the Clinton Foods ,case, which is now an established Board doctrine,"' to the facts of this case, and as it appears, for the reasons I have stated, that the, Company's drivers spend a substantial part of their time in an agricultural func- tion, I would find them to be agricultural employees. storage or to market or to carriers for transportation to market ." We do not - believe the Congress intended to deprive farmers having their own mills of the exemption it afforded farmers who do not. In the debate on the amendment extending exemption to "delivery to market," its sponsor made clear that auxiliary activity of the kind here involved would be included within that term 81 Cong Rec. 7888. 's See Hershey Estates, 112 NLRB 1300. 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, as amended, we hereby notify you that : - WE WILL cease performing or giving effect to section I, para- graph 8, of our current contract with ILWU Local 142,-by which the Union may initiate disciplinary action against or the discharge of nonunion employees. - WE WILL NOT enter into, renew, or enforce any agreement with said, labor organization by which the Union may cause us to dis- charge any nonunion employee, except - to the -extent that such action is permitted under a union-security provision in con- formity with the Act, as amended. WE WILL NOT encourage membership in said labor organization under such an agreement by hearing a grievance, or discharging any nonunion employee, on the ground that the employee has 'disrupted harmonious. working relations, or in any other manner discriminate in regard to hire , or tenure of employment or any terms or conditions of employment. 680 DECISIONS OFD NATIONAL LABOR -RELATIONS BOARD WE WILL NOT in any other manner interfere-with, restrain, or, coerce' our employees in the exercise of the' rights guaranteed them in Section 7 of the Act, except to the extent that' such right may- be affected by an agreement requiring 'membership in a labor, organization as a condition of employment as authorized in Sec- tion 8 (a) (3) oft-he-Act. WE WILL offer Favorito P. Banez immediate and full reinstate- ment 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 suffered as a result of our discrimi- nation against him. All our employees are free to become, to remain, or to refrain from becoming, or remaining, members of the above-named' Union, or any other labor organization, except to the extent that this right may be affected by an agreement in conformity with Section 8 (a) (3) of the Act, as amended. OLAA SUGAR COMPANY, LIMITED, Employer. Dated---------------- By------------------------------------- (Representative ) (Title) This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. APPENDIX B NOTICE TO ALL OFFICERS, REPRESENTATIVES , AGENTS, AND MEMBERS OF ILWU LOCAL 142 Pursuant to a Decision and Order of the National Labor Relations Board, and in+order--to effectuate the policies of the National Labor Re- lations Act, as amended, we hereby notify you that : WE WILL cease performing or giving effect to section I, para- graph 8, of our contract with Olaa Sugar Company, Limited, be- cause of its discriminatory nature. WE WILL NOT enter into, renew, or enforce any provisions of our contract with the above-named Employer which permits us to request disciplinary action against, or the discharge of, any nonunion employee, except to the extent that such action is per- mitted under a union-security provision in conformity with the Act, as•aiilended. WE WILL NOT cause or attempt to cause any employer to dis- criminate against employees in regard to their hire or tenure of employment, or any term or condition of employment, in viola- tion-of Section 8 (a) (3) of the Act, as amended. OLAA SUGAR-COMPANY, LIMITED 681 WE WILL NOT in any other-manner restrain or coerce employees of any employer in' the "exercise ,of•` the' rights guaranteed them- in Section 7 of the Act, except to the extent that such right may be affected by an agreement requiring membership in a labor or- ganization as a condition of employment as authorized in Section 8 (a) (3) of the-Act,,as amended. WE WILL notify the ' above-named Company and Favorito P. Banez, in writing, that we withdraw our objections to his employ- ment as a senior cane truckdriver, and request that he be rein- stated to his former or an equivalent position. WE WILL make Favorito P. Banez whole for any loss of pay suffered because of the discrimination against him. ILWU LOCAL 142, Labor Organization. Dated---------------- By----------------=-------------------- (Representative) (Title) This notice must remain hosted 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 This proceeding brought under Section 10 (b) of the National Labor Relations Act, as amended, herein called the Act, was heard at Hilo, Territory of Hawaii, on August 23-25, 1954, pursuant to due notice to all parties. The consolidated complaint dated July 13, 1954, issued by the General Counsel of the National Labor Relations Board and duly served on the Respondents, was based on charges duly filed by Favorito P. Banez, the Charging Party. It alleged in substance that: (1) The Union and the Employer, on or about October 29, 1952, executed a collective-bargaining agreement which contained an unlawful discriminatory provision; and (2) on December 17, 1953, the Union caused the Employer to discharge Banez from his employment pur- suant to the said discriminatory provision, and that thereby the Union had committed unfair labor practices within the meaning of Section 8 (b) (1) (A) and 8 (b) (2), and the Employer had committed unfair labor practices within the meahing.of Section 8 (a) (1) and (3) of 'the Act, as amended. The Union, in its duly filed answer, admitted that: (1) It was a labor organization, representing both "employees," as defined in the Act, and other workers who were not covered by the same definition; and (2) on October 29, 1952, the Employer and the Union had executed a contract containing a provision which shall be hereafter set forth, and denied the commission of any unfair labor practices. The answer of the Union also stated that the Union lawfully presented to the Employer a grievance, based on the conduct of Banez, under the provisions of the collective-bargaining agree- ment, and that thereafter the Employer notified the Union that the merits of the grievance had been substantiated, and that thereafter Banez was discharged. It was also the position of the Union, as stated at the hearing, that the alleged discriminatory provision of the contract was not discriminatory or unlawful. The Employer in its duly filed answer admitted: (1) Certain allegations of the complaint setting forth facts of its business operations; and (2) that the Employer and the Union had executed the collective-bargaining agreement containing the par- ticular,provision,'above'&i•eferred to, and denied the commission of any uifair,labOr practices. The answer of the Employer also alleged, as an affirmative defense, that Banez was discharged without discrimination and for cause, because he engaged in a course of conduct intended to, and resulting in, the disrupting of the harmonious working relations of the employees and the Company, "and that based upon such conduct, considered in the light of the work record of the complainant, and the effect 682 DECISIONS. OF. NATIONAL LABOR RELATIONS BOARD of such conduct -upon the operations of the Respondent , the complainant ; was dis- charged by the Employer." 1 1 All parties were represented at the ` hearing and were afforded a full opportunity to be heard, to examine and cross-examine witnesses, to introduce evidence bearing on the issues, to argue -the issues orally upon the record , and to file briefs and proposed findings. Brief oral arguments were presented by counsel and all waived the' filing of briefs: ' Motion to Dismiss , „ - At the opening of the hearing, and at the close , thereof; both the Employer and the Union moved to dismiss the complaint on the ground that the Board was without jurisdiction of the subject matter , or the persons involved, because ( 1) the Charging Party, Banez,' at the time of the acts alleged in the complaint , was not an "employee" as definesi in the Act, being an agricultural laborer, and (2) the Board was forbidden to use funds for investigating or,hearing the subject matter, by the terms of the Board's appropriation acts .2 The motions are based on the following sequence of legislative enactments. " Section 2 (3) of the National Labor Relations Act excluded from the definition of the term employee, "any, individual employed as an agricultural laborer." Annually since 1946 Congress has added a rider to the appropriation for the Board , providing that no part of the appropriation, "shall be ... used in connection with investigations, hearings, directives, or orders concerning bargaining units composed of agricultural laborers as referred to in . . . Section 3 (f)" of the Fair Labor Standards Act (29 U: S. C. A. 203 (f) ). The last mentioned section , so far as here pertinent, reads as follows: "agriculture" includes farming in-'all its branches, and among other things includes ... the production, cultivation, growing and harvesting of any agricul- tural ... commodities ... and' any practices ... performed by a farmer or on a farm as an incident to or in conjunction with such farming operations, including preparation for market delivery-to storage-or to•market'or-to carriers-for trans- portation to market. When the motion was made at the opening of the hearing it was denied, with leave to renew, on the ground that, at that time, there was no factual basis for the motion. The Trial Examiner suggested that counsel present evidence on both the issue raised by the motions, and. the issues raised by the pleadings, thus affording the Board an op- portunity of making a final disposition of all issues in the one proceeding. This suggestion was accepted by counsel, and thereafter evidence was presented and re- ceived on the issue raised by the motions, and those raised by the pleadings. At the close of the evidence, the Union and the Employer each renewed its motion to dismiss on the grounds previously stated., , The' Trial Examiner reserved, ruling, stating that he would dispose of the motion in the course of his Intermediate, Report, after an examination and consideration of the authorities, submitted by counsel, in the course of their argument. The motion is hereinafter denied. Upon the entire record in the case, and from my observation of the witnesses, I make the following: - - FINDINGS OF FACT - 1. THE LABOR ORGANIZATION - Upon the pleadings, the evidence as 'a whole, and the 'Board's decision and direction of election in the proceeding entitled Pepeekeo Sugar Company, et at., and International Longshoremen's and Warehousemen's Union, Local 142, et at., 59 NLRB 1532, dated January 12, 1945, of which I take judicial notice, I find that ILWU Local 142, is a labor organization, within the meaning of Section 2 (5) of the Act. At the hearing it was stipulated by the 'parties, that as a result of the above- named proceeding, in which both the instant Union and the instant Employer were parties,'the Union on March 22, 1945, was certified-by the Board as the collective-, bargaining -representative, of `certain of the `,`employees" of'the' Employer,' and'that 2 The answer of the Employer, was amended at the hearing 'to include the quoted allegation - ,, s National Labor Relations Board Appropriation Act, 1954 (Title III, Act of July 31, '1953, Pub L 170, 83d Congress, 1st. Session) and National Labor Relations Board Appropriation Act, 1955 (Title -III, Act of July, 2, 1954, Pub. L. 472, 83d 'Congress, 2d 'Session'), OLAA SUGAR COMPANY, LIMITED 683 since that date the Union and the. Employer have' engaged in collective bargaining and have been in contractual relationship with respect to various employees and workers of the Company at its operations located at Olaa, Island of Hawaii, Territory of Hawaii. However, it is clear that for some time past the'Union, in addition to representing "employees," has also represented "agricultural" workers employed by the Com- pany. The General Counsel introduced into evidence the current labor agreement between the parties, which was effective September 1, 1951, and amended October 29, 1952.3 Section 3 of this contract, entitled "Employee Coverage," states that the employees covered by the agreement are: "All production, maintenance and agri- cultural employees of the Company with the exception" of workers in certain categories specifically excluded. The section' then sets forth four units of employees represented by the Union. It-should be noted that unit 3 brings within the operation of the contract some agricultural workers, whose positions had been considered by the Board in the Pepeekeo Sugar case, supra, and had been specifically excluded from the certification granted to the Union, on-the ground that they were agricultural workers. The Board found that the employees of the sugar companies engaged in the following operations, in addition to certain dairy workers, were agricultural laborers within the meaning of the Act: (1) Preparation of the land for planting, cultivating, fertilizing, irrigating, harvesting, including the loading by hand or by crane of the cut cane onto the initial means of transporting the cane from the fields, and the care of animals. The contract, by its terms, covers these agricultural workers in nearly identical language. Section 3 (c) reads as follows: Unit 3. Those agricultural employees of the Company who are engaged in clearing and preparation of land, preparation and transportation of seed, plant- ing, cultivating, irrigating, fertilizing, spraying with herbicides and insecticides, harvesting, including the loading of the agricultural products onto the initial means of transporting them from the fields, and the care of animals used in cultivating and harvesting; and also employees in ranch and dairy operations, except employees in the milk room on dairy ranches and employees engaged in milk delivery: . . . The contract, by its terms, also covers a category of employees whose employment was found by the Board to be within the definition of employee, although they spent part of their time in agricultural pursuits. It should also be noted that in the Pepeekeo decision, supra, workers engaged in transportation were found to be "employees" within the definition of the Act. Banez, the complainant herein, at the time of his discharge was, and for sometime prior thereto had been, a senior cane truckdriver, so there is no question of his personal status as an "employee" under the Act, unless his status within a group has been changed by virtue of the appropriation acts, as contended by the Respondents. The fact that a union undertakes to represent both employees and agricultural workers does not place the union outside the operation of the Act.4 U. THE BUSINESS OPERATIONS OF THE EMPLOYER; EVIDENCE RELATING TO THE MOTION TO DISMISS It was stipulated by counsel that Olaa Sugar Company, Limited, is an Hawaiian corporation which is engaged in the growing and processing of sugar cane on the Island of Hawaii, Territory of Hawaii. The Company owns and cultivates 7,418 acres of cane fields on the Island of Hawaii, and also purchases sugar cane from a number of independent growers whose 6,911 acres of cane fields are also located on the Island of Hawaii. The Employer produces raw sugar and molasses annually in excess of a value of $6,000,000, which is shipped to points outside the Territory of Hawaii from the Employer's sugar mill located at Olaa, Island of Hawaii. The nature of the relationship, between the Employer and the independent growers is established by a series of agreements introduced in evidence by the General Counsel.5 These agreements are typical contracts of sale, by which the independent grower agrees to sell and, the Employer agrees to buy the sugar cane grown by the s General Counsel Exhibit No. 14. • Di Giorgio Wine Company, 87 NLRB 720. 5 General Counsel Exhibits Nos. 17A, 17B, 17C, 17D. r , , ,684 DECISIONS OF NATIONAL LABOR RELATIONS BOARD grower on certain lands specified -in the contract. The contracts contain provisions as to weight of sugar cane, basis of price, quality factor correction, rate of payment, accounting and settlement, etc. The sections of the various contracts which are of im- portance in the instant proceeding are those relating to the delivery of sugar cane, or the passing of title thereto: In the Independent Grower Agreement,6 it is stated that the mill (the Employer) "will take delivery of the crop or crops of sugar cane now growing or to be grown . . . cut and piled by the Grower (or cut and piled by the'mill at his request and expense) on slings within 300 feet of a passable road . all at the time or times designated by the mill feasibly nearest to the time of maturity of said crop." The temporary amendment 7 to the independent grower agreement, section 2 thereof, states that "the mill [the Employer] will take delivery of the crop . . . now grown or to be grown during the term hereof, cut and piled by the grower on slings within 300 feet of a passable road. . . all at the time or times designated by the mill feasibly nearest to the time of maturity of said crop or crops." It further provides that, "should the mill undertake to perform the harvesting opera- tions required of the grower, at the request of the said grower, then the mill shall have the right in its sole discretion to determine the method whereby the said opera- tions shall be performed, either by hand cutting and piling as described herein . . or alternatively by such mechanical methods as the mill may select . . . and delivery of said sugar cane shall be taken by the mill at the point of severance from the ground of the said crop or crops at time of harvest, and subsequent loading and transport- ing operations shall be performed by the mill at its expense by any methods compatible with the selected method of mechanical harvesting." This same document in section 10 states that the grower will grow and care for the crop, planting or replanting, with only such. varieties of sugar cane as the mill may approve, all in accordance with the methods of good husbandry as practiced in the surrounding area; and that the grower will cut and pile his crop on his land upon slings (to be furnished by the mill) in bundles of specified size within 300 feet of a passable road for delivery to the mill at the time or times scheduled by the mill. The tenor of all the agreements is that the independent growers shall have ex- clusive control of the planting, cultivation, and harvesting of their crop, and its de- livery at a point within 300 feet of a roadway, where it can be picked up by the Employer. The gist of all the agreements appears to be, that when the grower has raised his crop, cut it, and placed it in bundles of specified sizes, upon the slings furnished by the Employer, at a place within 300 feet of a passable roadway, he has fulfilled his contract, and at that time and place delivery of the sugar cane is deemed complete. Caleb E. S. Burns, Jr., manager of the Employer, testified credibly, furnishing further details as to the operations of the Company. He testified that the sugar cane fields of the independent growers are contiguous to the sugar cane fields of the Company. There are 438 independent growers, who cultivate 6,911 acres, and who furnish sugar cane to the Company's mill located at Olaa. The same mill also processes the sugar cane from the Company's own acreage amounting to 7,418 acres. Burns testified that the relationship of the growers to the Company dated back to the start of the Company in the early 1900's. At that time the Company en- couraged its employees to grow sugar cane on the side as a means to aiding them to increase their own income, and also to give the Company more sugar cane for its milling and processing operations. The relationship between the growers and the Company changed during the years. During the period 1935 to about 1951, the growers who had a relationship with a sugar milling company, were classified as "adherent planters," a term used in the Sugar Act of those years. In early 1951, their status was changed from that of adherent planter to one of "independent grower." Under that change, the grower actually assumed more of the responsibilities of being an independent farmer, which is the relationship existing at the present time. Under the terms of the Company's present agreement with each independent grower, the Company takes possession of the cane in the field. There are two types of contract, one mechanical, in which the Company takes possession of the cane at the moment the cane stalks are severed from the ground, and the hand harvesting contract in which the, Company, takes, possession of theocane,after, it has.,been cut. and,piled_in,the.field. During the period of the adherent planter relationship, one of the regulations of the Sugar Act prohibited a company from changing the ratio of administration, or com- pany land, to that of adherent planters cane land; thus a sugar company was pro- hibited from increasing its area under cultivation to the exclusion or detriment of the adherent planters. The sugar companies were compelled to adhere to that ar- 6 General Counsel Exhibit No. 17A. 7 General Counsel Exhibit No. 17B. OLAA SUGAR COMPANY, LIMITED 685 rangement, if they were to obtain benefit payments allowed under the terms'of the Sugar Act. At the present time, under the independent status of the growers, the same rule does not apply, but the land which a,company owns and -leases to growers, cannot be taken back by the company and put into cultivation for the company's purposes, during the term of the company's lease with the independent grower. A harvesting schedule for both the company's fields and the independent growers' fields is formulated each, year by, the. company on the basis of age of, crop. The company attempts to keep'its age-of harvest at about 24 months,-so fields that were harvested in 1951 in a particular order will probably be harvested again in 1953 in the same order. This scheduling, based on the age of crop, applies alike to the fields of both independent growers and the company. - In 1953 the Company was engaged in hand harvesting exclusively. In that oper- ation the cane is cut by hand by workers and gathered into piles of specified sizes, on cable slings. Each pile weighs approximately 11/4 tons. When the slings are hooked together the pile becomes a bundle, which is then lifted from the ground by a traveling crane and loaded into trucks for transportation to the sugar mill. Olaa Sugar Company has about 340 plus miles of roadway on its own land, and about 106 miles of roadway which is on independent growers' acreage, over which the Company also has a right of way, or a total of about 450 miles of private roadway in the 14,300 acres of cane land. All of the cane is loaded on plantation field roads; none of it on public highways. However, a network of public roads connects the various large sections of fields with each other, and with the sugar mill at Olaa, and these public roads are used by Company's trucks, when more convenient, and when necessary. Burns testified that on General Counsel's Exhibit No. 2A the only Company road shown was the old-railroad bed which-became a private, road with the, removal of the railroad tracks, but that the public roads through the area were marked in dark blue lines. On map 3 the public roads are shown as well as the plantation roads. Examination of the maps discloses that the public highway system is the primary means of transportation between the various sections of the Company's lands and the sugar mill, and are the only hard surface roads in the entire area. The Company's mill is located close to Olaa village (shown on General Counsel's Exhibit No. 2A). The longest haul is from Kanaili, Malama, to the mill, a distance of approximately 23 miles. It is also approximately 12 or 14 miles from the Pahoa area to the mill. On cross-examination Burns testified credibly that there are 170 people employed at the mill in factory operations and associated service operations. A value of be- tween 6 to 7 million dollars was placed on the mill by an insurance company in a recent appraisal. The original cost of the mill on the books of the Company is $1,200,000. The Company's production of sugar in 1953 amounted to 55,967 tons of 96 ° sugar. Olaa stands sixth among the sugar mills in the Hawaiian Islands rated on the basis of total production. Burns also said that the usual term of the company leases to independent growers is 15 years, and that of the 6,900 acres of independent growers' land, approximately 2,500 acres was company owned; the balance was owned outright by the independent growers. The Company usually made contracts for sugar cane with the independent growers on a crop-to-crop basis. The independent grower paid for the seed cane and was responsible for all irrigation and cultivation necessary to bring the crop to maturity. As to harvesting there were two types of arrangement, one by which the Company performed the harvesting at the expense of the independent grower, and another where the grower performed the harvesting. In 1953 the only harvesting performed was by hand, the Company performing the 'work, and the grower paying for the cutting and piling. The entire cost of harvest- ing an independent grower's cane was borne by the grower, but the labor was fur- nished by the Company through its own labor force, which consisted of cane cut- ters. After the cane was cut, its transportation to the mill was the responsibility of the Company alone. The company fields and the independent grower fields are in- termingled. The average holding of independent growers varies from an acre to 200 acres, but the average is approximately 12-15 acres. All terms of the con- tract between the independent growers and the sugar companies are under the su- pervision, of the .Department of, Agriculture. George Mair, the harvesting superintendent of the Employer, testified credibly, giving a clear description of harvesting operations . He also described the work of the cane truckdrivers. He said that the hand -harvesting operation at Olaa in 1953 was subdivided into three sections-Mountain View, Olaa, and Puna. Each of these sections was under the supervision of a harvesting overseer , each of whom had approximately 4 to 5 gangs of cane cutters, approximately 130 men , under him. In the morning the men were taken to the fields of matured cane , which had been burned the previous day, and each was assigned 5-lines of cane , which are 5 feet 686 DECISIONS OF - NATIONAL LABOR RELATIONS BOARD apart, to cut. Slings were distributed to the men, and each one dragged a sling to his assigned place., As he cut the cane into piles of 11/4 tons, the cut cane was piled on the slings. A traveling crane which moved along .the -field, then picked up the piles of cane, and deposited them into the trucks, or trains, for transportation to the mill: It was one of these trucks which Banez, as a senior cane truckdriver, operated at the time of his discharge. In the 1953 harvest the Company operated 15 White gasoline trucks and 6 GMC diesel trucks. He said he was not sure of the horse- power of these trucks, but he explained that the equipment as used, and as driven by the senior cane truckdrivers, consisted of a tractor-truck to which was attached a semitrailer and full trailer. This equipment comprised a "train" which was 64 feet long overall, and rolled on 26 wheels overall. The frames of the semitrailer and full trailer were approximately 12 feet high and 8 feet wide. Each of such trains carried a load of approximately 16-18 piles of cane, making a payload of ap- proximately 22 tons. The same equipment was used on both the public highways and private roads of the Company. The field roads are one-way roads, while the public roads are two-way. Mair stated that the central point of all trucking operation was the mill, from, which the trucks were dispatched and their operations controlled by a dispatcher who directed operations by means of radio-telephone. He explained that when a truck left the dispatcher's shack at the mill, the time was noted. When it reached the field, the loading foreman on the traveling crane, who has a radio-telephone in the cab of the crane, reported the truck's arrival by number. Thereafter, he notified' the dispatcher when loading of the truck was begun, when the loading was completed, and when the truck left the field for the mill. The truck dispatcher recorded the time and each movement of each truck in his log. A trip from the mill to the farthest point in the Company's fields, and return to the mill, took 21/2 to 3 hours. In general, the trucks were routed via Company roads where the cane was cut, to, the nearest public highway, and thence over the public highway to the mill. The company roads ran through the cane fields at intervals of 500 feet, and were one- lane, dirt roads. The trucks went in on one road and out by another. The cane from, some fields near the mill, and from other fields which could be reached via the old railway bed, could be transported to the mill by using company roads alone, but the general practice was to use the two-lane, hard-surfaced public roads where practicable. In December 1953 the Employer had 33 truckdrivers, all under the dispatcher who supervised truckdrivers only, except for a small crew who took tare samples of the sugar cane. Mair testified that on an annual basis, truckdrivers spent approximately 50-60' percent of their time on public highways and 40-50 percent on company roads. He also said that all loading and unloading was performed exclusively on com- pany property, and not on the public highway, and that during loading and unload- ing the truckdrivers had no duties except to stay with their truck, move it as re- quired, and chop off any cane stalks protruding from the vehicles. In 1953 the Com- pany operated' 19 trains, approximately 11 on each shift, three 8-hour shifts per day. He explained that a day shift of cane cutters could cut sufficient cane to keep truck- drivers busily engaged for three shifts. During 11 months of the year cane cutting, and transportation, continued at that same steady rate. One month each year was. devoted to an overhaul of equipment. During that month truckdrivers worked on trucks at the Company's garage. The transportation of the cut cane from the fields of independent growers, and, from the fields of the Employer, are accomplished by the same force of truckdrivers, the same trucking equipment, and by the same methods of dispatch. The truck- drivers spend about half their time hauling cane from the Company's fields, and half their time from the independent growers' fields. Mair said that senior cane truckdrivers did not operate anything but cane trucks. Jobs in this classification 'were filled by posting, and selection by the Company on the basis of ability, with due consideration being given to seniority, and all other relevant factors. The General Counsel -introduced in evidence the job description for senior cane truckdrivers as prepared by the Company. Mair testified that the job descrip- tion was originally prepared by the control dispatcher, checked with the industrial relations department, and then'by himself;-as-the head of the department. This job description specifies the abilities and duties of senior cane truckdrivers in minute detail. It is especially noteworthy for two reasons: (1) The numerous duties there detailed relate to truckdriving only, there is no prescribed conduct therein that could possibly be classified as an "agricultural" task;-and (2) a condition precedent to oc- cupying the position is the possession of a county of Hawaii vehicle operator's license.* 8 General Counsel's Exhibit No. 5.. ' - OLAA SUGAR COMPANY, LIMITED III. THE UNFAIR LABOR PRACTICES 687 A. Background There is no substantial conflict in the testimony as to the events which culminated in the discharge of Banez on December 17, 1953. It is undisputed that the contract between the parties, in effect at all times pertinent hereto, contained in section 1, en- titled Recognition and Union Security, the following paragraph: Any claim by the Union that action on the job of a non-union employee cov- ered by this agreement is disrupting harmonious working relations may be taken up as a grievance. Repeated disruption of harmonious working relations shall be grounds for discipline or discharge. [Emphasis supplied.] The background of the employment of Banez is likewise undisputed. His employee service record 9 discloses that he was born in the Philippine Islands in 1918, com- pleted 11 grades at English-speaking schools in those islands, and entered the Terri- tory of Hawaii in 1946. He is married and has one child. He began his employ- ment with the Company in February 1946 as a cane cutter and continued in its em- ploy until his discharge. His first rate of pay, shown by his record, was 74 cents per hour. In his 7 years' service with the Company he occupied 20 various positions in milling, field, and transportation. Each change of position, apparently, was accom- panied by an increase in his rate of pay, except in 2, of the 20 changes enumerated in his record. The principal positions which he held successively: cane cutter, 74 cents per hour; centrifugal operator, 78 cents per hour; fingerlift operator, 81, 86, and 92 cents per hour; utility electrician trainee, 80, 83, and 94 cents per hour; field trans- portation handyman, 94 cents per hour; and his last position, senior cane truck- driver at a rate of pay of $1.17 per hour, which was raised to $1.28 per hour on September 1, 1952. He continued as a senior cane truckdriver at that rate of pay until December 17, 1953, when he was discharged, as hereafter related. The nature of the changes in Banez' employment were noted on his service record, which sum- marized, shows that from February 4, 1946, to December 17, 1953, he was trans- ferred on 7 occasions; reduced on 1 occasion in October 1948; transferred-reduced on 1 occasion on November 26, 1951; and upgraded on 10 occasions-the last upgrading being dated August 7, 1952, to senior cane truckdriver, his last position. When Banez began his employment with the Company he became a member of the Union and continued in membership until the latter part of 1951. During the years of his membership he authorized a checkoff of his dues by the Company. He did not authorize a checkoff for the year 1952 and he did not pay any dues there- after. Banez stated that thereafter he was not a member of the Union, and it was stipulated by the parties that at the conference of October 19, 1953, which will be hereafter described, the Union represented to the Company that Banez was not at that time a member, and had not been a member for some months prior thereto. It is likewise undisputed, that for many months prior to the discharge of Banez, the Company had been planning the mechanization of its field operations. The in- troduction of mechanical equipment for the cutting of sugar cane, would result in a large reduction in the number of cane cutters employed by the Company. Company officials expected to cut the work force from its normal complement of 1,100 em- ployees to 540 employees, with the installation of the mechanical equipment in De- cember 1953. They were apprehensive of labor trouble occasioned by the reduction in force, and were especially apprehensive of the reaction of the Filipino employees, who to a very large extent made up the field force, and who would receive 75 per- cent of the planned reduction. Desiring to effect the reduction with a minimum of friction, company officials discussed the situation with the representatives of the Union and it was agreed that the reduction in force would be based on seniority and ability to do the work. A short time after this first arrangement was made, the Union asked that certain employees with large families, who would be disqualified on the basis of seniority and ability, be retained on the payroll as "hardship cases." The Company agreed to consider the proposed hardship cases, and vary the general bases where warranted by the circumstances. It is against this background that the discharge of Banez was accomplished. B. The conference of October 19, 1953 10 Francisco Latore, who in 1953 was the second vice president of the Union, testified that about August 10, two men, named Dela and Revera, came to his home and 6 Employer Exhibits Nos. 8-A and B. 10 All dates in this section of the report are -in 1953 unless otherwise noted. Egg DECISIONS OF NATIONAL LABOR RELATIONS BOARD showed him a petition. He told the men that they should get permission to circulate a petition from the executive board of the Union. He asked' them what the petition was for. They were reluctant to answer; but upon further questioning said that they wished to call a general membership meeting of the Union to clear up some misun- derstanding, between the rank and file and the Japanese officers of the Union. He took the men to a meeting of the executive board, but they refused to tell the board the purpose of the petition. On the following day, he learned that Banez also was circulating a petition. The executive board of the Union designated him to investi- gate the activities of the three men and to report, which he did. As a result of'his report, the executive board requested a conference with company officials. On October 19, the conference was held. At this conference, the Company was represented by Nelson L. West, assistant manager; Myron O. Isherwood, director of industrial relations; and Caleb S. Burns, Jr., manager of the Company, previously referred to. The Union was represented by the members of its grievance committee, about 20 in number, including employees Latore, Kinji, Omuri, Shirasaki, Inaga, Arakaki, and Fred Low, a business agent of the Union, not an employee of the Company. All the company representatives tes- tified as to the events of this conference, as did Latore and Arakaki. These wit- nesses were in agreement as to the substance of the conference. To start the meeting off, Burns asked who would be the spokesman for the Union. Latore answered that he'would, and thereafter Latore and Arakaki acted as spokes- men. Latore told the company representatives that three men, Dela, Revera, and Banez, were engaged in circulating petitions, a copy of which he had not been able to obtain, but which was critical of the union officers who belonged to the Japanese nationality group. He said that Banez had made remarks to the effect that the officers of the Union, being of Japanese extraction, had favored the Japanese employees in the proposed layoffs, and in job opportunities, to the detriment of Filipino employees. The spokesmen for the Union then called upon various members of the Union who were present to tell of various incidents showing, im- proper conduct by Banez in the course of his employment. Evidently these incidents covered hitherto unnoticed delinquencies of Banez in his various jobs, and deroga- tory remarks made by him about the union officers. The union representatives said that the activity of the three men had fostered racial or national antagonism between the Japanese officers of the Union and the Japanese employees on one side, and the Filipino employees on the other." Dela and Revera were union members, so the Union felt that it could take care of those individuals. However, as to Banez, the Union took the position that his conduct constituted a violation of section 1 of the contract, in that his activity disrupted the harmonious working rela- tions existing between the Employer and the Union, and the Union demanded that the Company take action against Banez pursuant to that section of the contract. The company representatives told the Union that they were very much con- cerned with any racial or national antagonism, and that they would check into the matter. Burns also assured the Union that the policy of the Company was not to consider national or racial matters,in regard to layoffs, promotions, or job opportunities. In his testimony, Latore said that he told the Company that Banez had been cir- culating petitions and had been seeing too many stewards, saying that the Japanese are looking out for their nationality alone, and the Filipinos were being deprived of opportunities for promotions and jobs. He also said that he learned from other employees that the substance of Banez' petition was that some of the Filipino em- ployees were dissatisfied with some conditions and they wanted a general meeting of the Union to clarify some of these misunderstandings. The union officers felt there were regular channels for bringing up such matters, and that the petition was not the proper procedure. When Latore was questioned closely as to what request the Union made to the Company in regard to Banez, he answered, "We just told the Company to act upon this grievance; either transfer him, or kick him out of the Company. It is not our business." A question or two later, he said that the Union asked the Company to take "disciplinary or discharge" action, using the terminology of section I. A little later he was asked, "You couldn't fire him your- self, but you were asking the Company to do this, weren't you? Isn't that right?" His answer was "Yes." u It should be understood that any reference in this report to the "Japanese" or "Filipino" employees merely adopts the language of the witnesses. Such was their- manner of reference. There was no evidence as to the citizenship of any of these people. I presume they are all Americans, by either birth or naturalization, so the terms are descriptive of ancestry, or place of birth only. - OLAA- SUGAR COMPANY, LIMITED 689 The officials of the Company who were present at the meeting stated that the tenor of the Union's grievance was that the Union demanded that the Company take action against Banez pursuant to section 1 of the 'contract, although none of the union representatives requested or demanded that Banez be fired in so many words. C. The discharge of Banez On December 17, 1953, Burns, the manager 'of the Employer, sent the following letter to Banez: DEAR SIR: This will be notice to you that your services will no longer be required by Olaa Sugar Co., Ltd., on and after December 17, 1953. This action is taken as a result of your actions in violation of Section 1 (Recognition and Union Security) of the agreement between Olaa Sugar Co. Ltd. and the United Sugar Workers, ILWU, Local 142, as brought to our at- tention by the union. Yours truly,12 On January 7, 1954, Burns sent the following letter to Banez in explanation of the prior letter: DEAR SIR: The reason for your discharge, as of December 17, 1953, was as stated in our letter of December 17, 1953-violation of Section 1 (Recognition and Union Security) of the agreement between this company and the United Sugar Workers, ILWU, Local 142, as brought to our attention by the union. The details of this violation, as presented to us by the union, were explained to you at the time of your meeting with Assistant Manager West on December 23, 1953. Very truly yours, 13 Apparently the first official notice that Banez had that his conduct had evoked action by either the Union or the Company was received by him in the Company's discharge letter of December 17. Before receipt of this letter, neither the Company nor the Union warned him of the pending action against him, or afforded him an opportunity to defend himself. As mentioned in the letter of January 7, 1954, he was afforded some information relative to his discharge by Assistant Manager West in an interview which occurred on December 23, 1953. Both Banez and West testified credibly, giving almost identical accounts of what each said in this interview. West's version of the interview made crystal clear the motivation of the Company in the discharge of Banez. It is quoted verbatim: Mr. Banez came to see me. He originally asked for a meeting with Mr. Burns. Mr. Burns was in Honolulu at the time that Mr. Banez wanted to see him, and he asked me to interview Banez in his stead. Mr. Banez came to my office, it was in the afternoon if I recollect right, and asked me why he was discharged. I told Mr. Banez that the Union had filed or had brought up a grievance to the Company and we had held at their request a meeting, that there were some 20 odd members present at this meeting, and they had brought out at this meeting that he-Banez-was disrupting harmonious relationships with the Company, by circulating a petition against the officers of the Union, and was fostering racial discontent among the Filipinos, claiming the Japanese were getting all the breaks in this layoff procedure that we were in the middle of. I also told Mr. Banez that his work record at Olaa had been very poor. And Mr. Banez reviewed his long disagreement with the Union over many issues which he brought out, such as the union shop, claiming that the union officers were out to get him, and had brought this action against him for that reason. I told him that it was no concern to the Company what the internal affairs of the Union were and we were not interested in it, but we were sincerely disturbed by this charge of racial, stirring up of racial discontent. Mr. Banez asked me what he could do in regard to this discharge. I told him that the steps of the grievance procedure were open to him. I also told him that if he took the grievance procedure to its final conclusion, which would be arbitration, that he could not possibly expect the Union to pay for the cost of the arbitration since they had brought these charges against him, and that it would cost him, would be of some cost to him to take this matter to arbitration. 'a General Counsel Exhibit No. 15. 13 General Counsel Exhibit No 16. 690 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Mr. Banez asked me whether there was.any charges made by other than the officers. I told him that there were approximately 20 people there and that various members of this union committee had stood up and given testimony in regard to his actions . That testimony was covered by Mr. Isherwood in his testimony and is correct'as he gave it. I also told Mr. Banez that if he took this matter through arbitration and was successful in regaining employment with the Company, that he would still have to live with the people on the plantation there, and giving him a little advice I said that he would probably be happier if he didn't spend this money to go to arbitration and maybe attempted to find employment elsewhere. Mr. Banez agreed with me, said that he wanted to stay and fight the Union, bringing up other matters such, as he put it, communist-led union ; that they were out to get him and he was there, was going to stay there, and fight this matter to a final conclusion. I think in general that is the gist of the meeting. It should be noted that in the above testimony, West referred to the "poor work record" of Banez. His reference is in line with much more detailed testimony by Manager Burns, who testified that as a result of the conference of October 19, he asked for and received Banez' complete work record . He assessed the record as poor, and considering the Union's complaint "in the light of his poor work record," he decided to discharge Banez. It was the injection of the factor of Banez' work record into the case , to which the General Counsel promptly objected , that resulted in the amendment of the Employer's answer, as previously noted . To substantiate Burns' testimony as to Banez' poor work record, the Employer introduced records pertaining to 3 disciplinary layoffs and 3 reprimands given Banez in the course of his 7 years' employment.14 Giving due consideration to the undisputed evidence in the case , I am not per- suaded that the work record of Banez played any part in influencing Burns to a decision to discharge Banez. On the contrary , I am satisfied that the feature of Banez' work record is merely a pretext, belatedly thought of, and seized upon, by the Company in an effort to exculpate itself. The testimony of the company officials on this point, as given from the witness stand, lacked persuasive quality, and stands re- futed by other undisputed evidence in the case . The Company's discharge letter given to Banez on December 17, and the Company's letter of explanation of the discharge given Banez on January 7, 1954, state in unequivocal language that Banez was dis- charged because of his "violation of Section I . of the agreement." Furthermore, Banez was a senior truckdriver at the time of his discharge , and all his delinquencies were in the remote past. It is conceded that he had been punished by disciplinary action for each of his past infractions of company rules, and that for some months prior to his discharge he had been charged with no new infractions or delinquencies, save that charged by the Union . At the time of his discharge Banez stood in the same position as any other employee previously reprimanded-that of one whose record was less than perfect, but good enough to be retained in employment. One further fact should be mentioned . Burns testified, and it is undisputed , that as far as he knew Dela and Revera were still employed by the Company. Concluding Findings Upon the credible evidence, I find that on October 19, 1953 , the Union requested the Employer to take disciplinary action against or to discharge Banez, pursuant to section I, eighth paragraph, of the contract between those parties, and that on December 17, 1953, the Employer complied with the request by discharging Banez. I specifically find that Banez was not discharged because of his poor work record, or for cause. That the above-mentioned section of the contract is discriminatory as alleged by the General Counsel, is patent from the disparate treatment afforded Banez, a non- union man, on the one hand, and that accorded Dela and Revera , union members, on the other. By its terms , the provision confers on the Union the right to initiate the disciplining or the discharge of nonunion employees of the Company. It has no such right in regard to its own members. The provision is an instrument of obvious purpose, by which the employees who refrain from joining the Union are made, none the less, subservient to it. In the instant case , Banez, one of the non- union employees , felt that his particular group had not been treated fairly in the arrangements for job redistribution made by the Union with the Company. He exercised his right of free speech to criticize the arrangement , and the employee 14 Employer's Exhibits Nos. 7A, B, C, D, E, F. OLAA SUGAR COMPANY, LIMITED 691' representatives who had made the arrangement, and sought by the circulation of a petition to enlist the support of others who shared his views. In this conduct he exercised his fundamental right of free speech guaranteed to him by the Constitu- tion, above and beyond the guarantees of the same right vouchsafed him by the National Labor-Management Act. However, the officers of this Union sought by the provision in question to deprive him of this right, and force him to accept in silence, what they, gave him, regardless of whether it was fair or not. With the merits or the truth of Banez' criticism, we are not here concerned, but we are concerned with his right to voice his criticism. It may be that his criticism of the union officers was entirely unjustified, but they must suffer the criticism as one of the unpleasant features of office, and reply by words or conduct that deny or disprove the, criticism; they may not silence their critic by force,'the forfeiture of his property, or by the forfeiture of his job by which he lives, and supports his family: The evidence establishes, beyond doubt, that the union officers caused the'Employer to effect just such a forfeiture. And the Employer's conduct is no less reprehensible. It may have been apprehensive of dissatisfaction among the employees occasioned by the reduction in force, and made what to them seemed to be an expedient arrangement with the Union as to how the reduction would be effected, but that is no excuse for the Employer's violation of Banezy,rights. Although, inherent in the Union's complaint about Banez, the non- union employee, was knowledge of similar conduct by Revera and Dela, the union employees, and although on its face section I of the contract discriminated between union and nonunion employees, yet the Company weakly submitted to the Union's discriminatory demand, discharged Banez, and continued the employment of the union employees., That this discriminatory provision of the contract and the conduct of the Union and the Employer are unlawful, is clear from the recent decision of the, Supreme Court in Radio Officers' Union etc., v. N. L. R. B., 347 U. S. 17. Mr. Justice Reed, in the opinion of the Court, has the following to say in regard to the prohibitions of the Act against discrimination in the hire and tenure of employees by employers or by unions: . The policy of the Act is to insulate employees' jobs from their organizational rights.40 Thus Sections 8 (a) (3) and 8 (b) (2) were designed to allow em- ployees to freely exercise their right to join unions, be good, bad, or indifferent members, or abstain from joining any union without imperiling their livelihood. The only limitation Congress has chosen to impose on this right is specified in the proviso to Section 8 (a) (3) which authorizes employers to enter into certain union security contracts, but prohibits discharge under such contracts if member- ship "was not available to the employee on the same terms and conditions gen- erally applicable to other members" or if "membership was denied or terminated for reasons other than failure of the employee to tender periodic dues and initia- tion fees uniformly required as a condition of acquiring or retaining member- ship."41 Lengthy legislative debate preceded the 1947 amendment to the Act which thus limited permissible employer discrimination.42 This legislative history clearly indicates that Congress intended to prevent utilization of union security agreements for any purpose other than to compel payment of union dues and fees. Thus Congress recognized the validity of unions' concern about "free riders," i. e., employees who receive the benefits of union representation but are unwilling 40 See Section 7, 29 U. S. C. ( Supp. V) Section 157 , note 13 , supra. 41 The full text of the proviso to Section 8 ( a) (3) is set out in note 1, supra. That Congress intended Section 8 ( a) (3) to proscribe all discrimination to en- courage union membership not accepted by the pioviso see H. Conf Rep No 510, 80th Cong, 1st Sess 44; where it is stated that Section 8 (a) (3) "prohibits an employer from discriminating against an employee by reason of his membership or nonmembership in a labor organization , except to the extent he-obligates himself to do so under the terms of a permitted union shop or maintenance of membership contract." "Under the Wagner Act the proviso read . "Provided, That nothing in sections 151-166 of this title or in any other statute of the United States, shall 'preclude an 'employer from making an agreement with a labor oiganization ( not established, maintained , or assisted by any action defined in said sections as an unfair labor practice ) to require as a condition of employment membership therein , if such labor organization is the representative of the employees 'as provided in Section 159 (a) of this title , in the appropriate collective bargaining unit covered by such agreement when made." 29 U. S. C Section 158 (3 ). See Colgate-Palmolive-Peet Co v. iV L R. B., 338 U. S 355. 387644-56-vol . 114-45 ` . . , , 692 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to contribute their share of financial support to such union, and gave unions the power to contract to meet that problem while withholding from unions the power to cause the discharge of employees for any other reason43 Thus an employer can discharge an employee for nonmembership in a union if the employer. has entered a union security contract valid under the Act with such union, and if the other requirements of the proviso are met. No other discrimination aimed at encouraging employees to join, retain membership or stay in good standing in, a union is condoned.44 [Emphasis supplied.] "For example, Senator Taft said : "It is contended that the employer should be obliged to discharge the man because the union does not like him. That is what we are trying to prevent. I do not see why a union should have such power over- a man in that situation. 93 Cong. Ree. 4191. In H. R. Rep. No. 245, 80th Cong., let Sess., p. 33, it was stated that The bill prohibits what is commonly known as the closed shop, or any form of compulsory unionism that requires a person to be a member of a union in good' standing when the employer hires him." See also 93 Cong. Ree. 4135, 4193, 4272, 4275, 4432; S. Rep. No. 105, 80th Cong., 1st Sess., 6 et seq. ; H. R. 3020, 80th Cong., 1st Sess. 21-28; H. Conf. Rep. No. 510, 80th Cong., 1st Sess.-41. "See N. L. R. B. v. Eclipse Lumber Co., 199 P. 2d 684 Union Starch &'Refining Co. v. N. L. R. B., 186 F. 2d 1008. Therefore, I find that the Employer has violated Section .8 (a) (1) and (3), and the Union Section 8 (b) (1) (A) and Section 8 (b) (2) of the amended Act; as, alleged in the complaint. The Motion to Dismiss In the motions to dismiss, the Respondents rely principally upon two recent de- cisions, one by the Board 15 and the other by the Court of Appeals for the Ninth Circuit.l6 From an overall consideration of his duties, it would appear that Banez, as a senior cane truckdriver was not an agricultural worker. The description of that job furnished by the Employer, which is the only evidence of that nature, establishes that all his time is spent driving a truck-tractor, to which are coupled a full trailer and a semitrailer. These vehicles form a "train" of considerable proportions, which must require skillful operation. From the job description, and. the testimony of Mair, it would appear that Banez spent 100 percent of his time driving this vehicle, except for 1 month each year, when equipment was overhauled, when he worked on the trucks at the garage. He did not at any time lend a hand to any agricultural operation. According to Mair's testimony, Banez drove his vehicles on the public highways over half the time. While the maps may indicate a larger proportion of private roads in the area than public roads, that disproportion is deceptive. The Company has roads or lanes, one-vehicle wide, through the cane fields at intervals of approximately 500 feet. The total mileage of these one-way dirt roads is a substantial figure, but it should be borne in mind that Mair testified that the usual manner of operation was to route the vehicles over the public highways, then into the fields via the private lanes, and to bring them out by the shortest route to the highway, and thence to the mill. When it is considered also, that loading and unloading occurred on company property, and that such time was included in time spent on company property, although the driver merely awaited completion of the operation, it would appear that most of Banez' duties as a driver were performed on the public highway. Banez and the other drivers hauled the cane of independent growers to the mill, in addition to cane raised on company lands. I take it, that the ratio prevailing be- tween the two types of land, would be reflected in the work of the drivers. On that basis, they spend very nearly as much time hauling independent grower-raised cane as they do hauling company-raised cane. Also, the truckdrivers are required to have a driver's license issued by the County of Hawaii. In view of all this evidence it would seem clear that Banez could not be considered an agricultural worker. In the Waialua case, supra, the circuit court held that all employees of a large sugar plantation, whose work was necessary to put the crop into a form in which it will not spoil, and to prepare it as "raw sugar," for shipment to the mainland of the United States for manufacturing, are exempt from the Fair Labor Standards Act. The court held that the exemption extended to employees operating the com- 1s Clinton Foods, Inc., 108 NLBR 85. 1e N. L. it. B. v. Waialua Agricultural Company, Limited, et al., 216 F. 2d 466, cert. granted 349 U. S. 254. OLAA SUGAR COMPANY, LIMITED 693 pany mill and private railroad. However, in a series of cases, the Court of Appeals for the First Circuit, held that.the exemption did not apply to the milling operations of the Company, which milled the cane of independent growers and its own.17 Later, the same court specifically held that, "the transportation of sugar cane is incident to milling rather than to farming and therefore is not exempt under the Act." 18 -It is also evident that the Board in setting up the instant units, in the Pepeekeo Sugar,case,' had in mind the rationale of the Calaf • case, supra, for it specifically refers to that case by-name iii its decision. - . Inasmuch as the Board has followed a rationale similar to that of the Calaf case, in applying the Labor Act to the sugar industry, I feel constrained to follow that authority. In the Waialua case, the Fair Labor Standards Act, its ' purpose and its legislative history were before the court. Here, we are concerned with the Labor-Management Relations Act, 1947, its. purpose and its legislative, history. I am not persuaded that decisions of courts interpreting the purpose and application of one Act, can be accepted as limiting the interpretation and application of an- other Act. r Nor am, I persuaded' that. the rider in, the Board's, appropriation act is equivalent to amending the Labor Management Act, 1947. 1 On the evidence before, me, Banez is a full-time truckdriver, who is engaged in transporting cane, grown by the Company and others, to the mill, as a' part of the milling processes. To hold otherwise would be to reach one of the anomalous conclusions referred.to by the Board in the Pepeekeo Sugar case, supra. , .. Inasmuch as the Board.has considered and answered the question here involved, I feel constrained to follow its decision in the Pepeekeo, case, which appears to be buttressed by the decisions of the Court of Appeals for the First Circuit. The Supreme Court decision in the Waialua case should end. the. conflict'on. this ques- tion. For the reasons stated, the motions are denied. , IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Union and the Employer set forth in section' III, above,- which occurred in connection with the Employer's operations set forth 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 obstruct c ing commerce and the free flow of commerce. V. THE REMEDY Having found that the contract between the Employer and the Union, effective September 1, 1951, and amended October 29, 1952, contained an illegal discrunina= tory provision, to wit, the eighth paragraph of section I, it will be -recommended that the Union and the Employer cease and desist from- giving effect to the illegal provision, and from entering into, renewing, or enforcing any provision of similar nature in the future. Having found that the Union and the Employer engaged in'unfair labor practices, it will be recommended that they cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. It has been found that: (1) From December 17, 1953, the Employer has discriminated against Favorito P. Banez in his hire, tenure, terms, and conditions of,employment; (2) such con- duct by the Employer encouraged membership in the Union and interfered with, restrained, and coerced employees in the exercise of rights guaranteed by Section 7 of the Act; and (3) the Union engaged in unfair labor practices by causing the Employer to so discriminate, thereby restraining employees in the exercise of rights guaranteed by the Act. ' It will be recommended, therefore, that the Employer offer to Favorito P. Banez immediate and full reinstatement to his former or sub- stantially equivalent position without prejudice to his seniority or other rights' and privileges; and that the Union notify the Employer, in writing, and furnish a copy, of said notification to Banez, that it-has withdrawn its objections to his employ- ment as a senior cane truckdriver by the Employer, at its sugar mill in Olaa, Island of Hawaii, Territory of Hawaii, and request the Company to offer Banez full and immediate reinstatement to his former or an equivalent position. ' Having found that the Employer and the Union were jointly responsible for the discrimination in the hire and tenure of employment of Banez,, it will be recom- mended that the Employer and the Union, jointly and severally, make Favorito 17 Bowie 'v. Gonzales, 117 F. 2d 11 (C. A. 1). ' za Calaf v. Gonzales, 127 F. 2d 934 ( C. A. 1) ; see also Paves v. Serralles, 145 F. 2d 552 (C. A. 1). 694 DECISIONS OF NATIONAL LABOR RELATIONS BOARD P. Banez whole for any loss of pay he may have suffered by reason of the discrimina- tion against him, by payment to him of a sum of money equal to the amount he would normally have earned as wages from December 17, 1953, until his rein- statement as ordered above, less his net earnings during this period. The loss of earnings will be computed in accordance with the formula of the Board stated in F. W. Woolworth Company, 90 NLRB 289. It is also recommended that the Employer be ordered to make available to the Board upon request, payroll and other records to facilitate the checking of the amount of earnings due. Upon the foregoing findings of fact, and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. ILWU Local 142 is a labor organization within the meaning of Section 2 (5) of the Act, which admits to membership both employees and agricultural workers of the Employer. 2. Olaa Sugar Company, Limited, an Hawaiian corporation, is an employer engaged, in commerce within1he. meaning of Section 2 (6) and, (7) of the Act. 3. By executing and enforcing the contract provision, aforesaid, the Employer has engaged in and is engaging in unfair labor practices within the meaning of Sec- tion 8 (a) (3) of the Act. 4. By interfering with, restraining, and coercing employees in the exercise of rights guaranteed by Section 7 of the Act, the Employer has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act. 5. By causing the Employer to discriminate against employees in violation of Section 8 (a) (3) of the Act, the Union has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (b) (2) of the Act. 6. By restraining and coercing employees in the exercise of the rights guaranteed in Section 7 of the Act, the Union has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (b) (1) (A) of the Act. 7. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2 (6) and (7) of the Act. [Recommendations omitted from publication.] The Rein Company and Houston Printing Pressmen & Assist- ants' Union No. 71, International Printing Pressmen & Assist- ants' Union of North America, A. F. of L. Case No. 39-CA-427. October 26, 1955 DECISION AND ORDER Upon a charge duly filed on July 1, 1954, and an amended charge filed on September 7, 1954, by Houston Printing Pressmen & Assist- ants' Union No. 71, International Printing Pressmen & Assistants' Union of North America, A. F. of L., herein called the Union, the General Counsel of the National Labor Relations Board, herein called, respectively, the General Counsel and the Board, by the Regional Director for the Sixteenth Region, issued a complaint dated May 17, 1955, against The Rein Company, herein called the Respondent, alleging that the Respondent had engaged in and was engaging in unfair labor practices affecting commerce within the meaning of Section 8 (a) (1) and Section 2 (6) and (7) of the National Labor Relations Act, as amended. Copies of the charge, the amended charge, 114 NLRB No. 118.