California Date Growers Association

246 DECISIONS OF NATIONAL LABOR RELATIONS BOARD APPENDIX A NOTICE TO ALL EMPLOYEES Pursuant to the recommendations of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the Labor Management Relations Act, we hereby notify our employees that: WE WILL NOT discourage membership in, or activities on behalf of, Local 96, International Brotherhood of Boilermakers , Iron Ship Builders, Blacksmiths, Forgers & Helpers , AFL-CIO, or in or on behalf of any other labor organization of our employees, by discriminating in • any manner in regard to terms or conditions of employment. WE WILL offer to Harold W. Boone, C. J. Ferguson, C. R. Maxwell, and Theodore Gonzales immediate and full reinstatement to their former positions without prejudice to any rights previously enjoyed. Clark C. Neal, Matthew Larry, Jr., and Larry Dials were reinstated on May 3, July 3, and July 9, 1956, respectively. WE WILL make *hole Harold W. Boone, Larry Dials, C. J. Ferguson, Matthew Larry, Jr., C. R. Maxwell, Clark C. Neal, and Theodore Gonzales for any loss of earnings suffered as a result of the discriminations against them. WE WILL NOT in any manner interfere with, restrain, or coerce our employees in the exercise of their right to engage in, or refrain from engaging in, union or concerted activities for the purpose of collective bargaining or other mutual aid or protection. All employees are free to become, remain, or to refrain from becoming or remain- ing members of Local 96, International Brotherhood of Boilermakers , Iron Ship Builders, Blacksmiths, Forgers & Helpers, AFL-CIO, or any other labor organization. L. C. FERGUSON AND E. F. VON SEGGERN d/b/a SHOVEL SUPPLY COMPANY, 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. California Date Growers Association and United Packinghouse Workers of America, AFL-CIO, Local Union No. 78.1 Case No. 21-CA.-2130. June 01,195' DECISION AND ORDER On February 20, 1956, Trial Examiner William E. Spencer issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Inter- mediate Report attached hereto. The Trial Examiner also found that the Respondent had not violated the Act in certain other respects. Thereafter, the General Counsel and the Respondent filed exceptions to the Intermediate Report and supporting briefs. The Respondent also filed a reply brief 2 ' Herein called the Union. ' The Respondent's request for oral argument is hereby denied as the record , exceptions, and briefs,' in our opinion , adequately present the issues and positions of the parties. 118 NLRB No. 29. CALIFORNIA DATE GROWERS ASSOCIATION 247 The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Inter- mediate Report, the exceptions and briefs, and the entire record in the case, and hereby adopts the findings , conclusions, and recommenda- tions of the Trial Examiner only insofar as they are consistent with our decision herein. 1. We find in agreement with the Trial Examiner that the Respond- ent on and after November 10, 1954, refused to recognize and bargain with the Union as the exclusive representative of its employees in the unit set forth in the consent-election agreement of the parties and thereby violated Section 8 (a) (5) and ( 1) of the Act. The respond- ent refused to bargain on the ground that the Regional Director acted arbitrarily and capriciously in deciding that the ballots of the 12 non- replaced economic strikers who refused jobs on the night shift estab- lished in January 1954 , should nevertheless be counted toward the Union's certification of October 21, 1954, because under the facts of this case they retained their employee status. The Respondent also contended that the certification was not valid for the additional reason that the Regional Director permitted the challenged ballots to be opened and counted in the absence of the Respondent. With respect to the Respondent's contention that the 12 laid-off strikers who were on the day shift before the strike of December 1 to 8, 1953, lost their employee status and were not entitled to vote in the election as a result of their rejection of assignment to the night shift, the Trial Examiner points out with ample support from the record that it was the Respondent 's prior practice to permit daytime em- ployees to decline night-shift work without loss' of their status as employees. Although there was testimony by Respondent's General Manager James F. Wright at the 1954 hearing on objections that in past seasons daytime employees who did not accept such assignments were the last hired and the first to be laid off, this means only that relative position on the seniority list but not employee status as such would be affected by an employee's refusal to transfer from the day shift. As for the Respondent's contention concerning the impropriety of opening and counting challenged ballots in the absence of its repre- sentative, the record shows that despite adequate notice to the parties that the conference for that purpose would be held in the Board's Regional Office at 2 . p. m., October 19, 1954, the Respondent's counsel did not appear until shortly after 2: 30 p: m., and the Respondent's general manager, although present on time, nevertheless did not identify himself or indicate his desire to attend the conference as the Respondent's representative. As the Trial Examiner found, the counting of the ballots was delayed by the Board agent until 2: 15 p. m. 248 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Moreover, when the Respondent's counsel did arrive, he was given an opportunity by the Board agent to examine the ballots as well as the tallies. - . Accordingly we find, as did the Trial Examiner, that the Regional Director did not act arbitrarily or capriciously in certifying the Union with which the Respondent refused to bargain in violation of Section 8 (a) (5) and (1) of the Act. 2. We also agree with the Trial Examiner that Respondent's con- duct in removing from its revised seniority list of March 18, 1954, the names of all striking employees who had not worked during the 1953-54 season, including the 12 employees who refused work on the night shift, constituted discrimination against these employees in violation of Section 8 (a) (3) and (1) of the Act. Like the Trial Examiner, we find no merit in Respondent's argument that the 12 em- ployees who refused to work on the night shift had thereby quit their employment. The record is clear that if these employees had been working instead of striking the Respondent would not have regarded their refusal to work the night shift as a quitting. Nor would the Re- spondent have denied preferential hiring status to other employees, who had worked during a prior season, but did not work during or since the strike but for their participation in the strike. As indicated above and in the. Intermediate Report, the Respondent refused to bargain with the Union following its certification by the Regional Director in a new election after the unsuccessful strike of December 1 to 8, 1953. The Respondent's alleged reason for this refusal is that the Regional Director acted arbitrarily and capriciously in certifying the Union. The record, however, as the Trial Examiner found, shows that the Regional Director acted most properly and reasonably in all re- spects. The Respondent's entirely unjustified refusal to bargain and its conduct in discriminating against the above employees, supported neither by economic nor other valid reasons, persuade us that it was motivated by'a desire to avoid all bargaining with the Union and to punish those employees who had not returned to work during or since the strike. 3. We do not agree with the Trial Examiner that the evidence in this case is insufficient to establish the Respondent's unlawful motiva- tion in reducing the seniority of striking employees below that of nonstrikers and replacements. While the Respondent contends that this action was necessary for economic reasons, the record shows that the new seniority policy was not announced until the Respondent pub- lished its hiring list of March 18, 1954, more than 3 months after the strike was ended. Contrary to the Trial Examiner, we regard this fact as a material distinction between the instant case and the Potlatch decision 3 upon which the Respondent relies. Our view in this respect 3 N. L. R. B. V. Potlatch Forests, Inc., 189 F. 2d 82 (C. A. 9). CALIFORNIA DATE GROWERS ASSOCIATION 249 has recently been affirmed by the Supreme Court of the United States, affirming the decisions of the Board and the Court of Appeals for the Fourth Circuit.4 In determining Respondent's motivation for this action it is, we believe, particularly significant that the Respondent, as we have found in agreement with the Trial Examiner, unlawfully discriminated against other employees who had not worked during or since the strike by publishing this very same list. Its refusal to bargain in violation of Section 8 (a) (5) of the Act upon, grounds totally lacking in merit is equally relevant. Such clear and unwar- ranted violations of the Act cannot be ignored in assessing Respond- ent's motivation for an additional act of discrimination, occurring exactly at the same time and by exactly the same means. Certainly, the violations of Section 8 (a) (5), (3), and (1) of the Act, found by the Trial Examiner, conflict with his conclusion that there is "no evidence of antiunion bias on the part-of this Respondent." It is true that the Respondent consented to an election when the strike was over and the Union sued for reinstatement. Consent to an election, how-' ever, does not establish Respondent's good faith when, as it had good reason to believe after the unsuccessful strike, the result might well have been adverse to the Union. Nor does the fact that Respondent was willing to reinstate some employees after the strike exonerate it from lesser acts of discrimination against them. In support of its position that the seniority policy was adopted for economic reasons as a means of continuing its business during the strike, Respondent's general manager, James F. Wright, testified that when individual nonstrikers or replacements expressed concern over their job security during the strike he told them they had become the "nucleus of our work force" and "gave them the assurance they would be maintained-if and when the strike was terminated." At no time, however, did Wright or any other representative of the Respond- ent inform any employee until the March 18, 1954, list was published that the actual seniority of the striking employees would be reduced below that of the nonstrikers and replacements. Nor do we believe that such a commitment can reasonably be inferred from Wright's general assurances to the latter employees that they would be "main- tained" when the strike was terminated. Such employees, of course, are normally concerned with job continuity and would seek assurance that their services would not be terminated at the conclusion of the strike in the event a successful union sought their ouster. In our opinion, it was this type of assurance, and no more, that Wright offered them. If the Respondent chose to replace permanently the economic strikers with those employees who continued to work during the strike, the former employees to the extent that they were permanently re- 4 Mathieson Chemical Corporation and/or Olin Afathieson Chemical Corporation, 114 NLRB 486, enfd. 232 P. 2d 158 (C. A. 4), affirmed 353 U. S. 1020. 250 DECISIONS OF NATIONAL LABOR RELATIONS BOARD placed would under established law 5 not be entitled to reinstatement to the detriment of their permanent replacements. This is not to say, however, that the Respondent after the strike was over could go further .than that and reduce the seniority of the returning strikers, who had not been replaced, to punish them because they had engaged in protected concerted activity. The General Counsel points out, as Wright conceded in his testi- mony, that he did not mention a word about loss of seniority to those strikers who were offered reinstatement after the strike. Respondent's purpose in remaining silent about so crucial a matter was, according to Wright's testimony, a desire not "to agitate that situation at the time they return" because, as he expressed it, "You are interested in business continuing." The foregoing tends to establish the fact that no super- seniority policy was initiated by the Respondent until after the strike had terminated, because it is evident from the testimony that the Respondent did not want to "agitate the situation" and that it was "interested in business continuing," and, moreover, the record is devoid of any evidence indicating that the Respondent found it neces- sary to promise superseniority to its employees in order to continue operations. In these circumstances, for the Respondent to have made such a promise of superseniority during the strike would not only have tended to "agitate the situation" but it might well have tended to prolong the strike and thus greatly hamper the continuation of the Respondent's business. Moreover, the General Counsel points to fur- ther evidence that no such policy was formulated or adopted by the Respondent until long after the strike was over. Thus, Florence E. Hawkins, Respondent's personnel chief most closely associated with carrying out the Respondent's seniority policy, was not apprised of the new policy until February 1954. Hawkins herself admitted that in January 1954, in response to one striker's [Kathryn White] inquiry concerning her seniority status, she [Hawkins] "did not know" and "couldn't tell her [White] a thing about it." Moreover, the old pre- strike 1952-53 seniority list remained posted after the. strike and was used by the Respondent in recalling strikers during the balance of the 1953-54 season. The revised seniority list of March 18, 1954, was itself not prepared until virtually the close of the 1953-54 season. On the basis of the foregoing we find, contrary to the Trial Ex- aminer, that the Respondent did not adopt a new seniority policy until after the strike was over and that its purpose in reducing the seniority of the strikers was to punish them because they chose to strike rather than work. We find that the Respondent thereby violated Section 8 (a) (3) and (1) of the Acts B N. L. R. B. v. Mackay Radio and Telegraph Company, 304 U. S. 333. 6 Mathieson Chemical Corporation and/or Olin Mathieson Chemical Corporation, supra. In view of our decision herein, we find it unnecessary to and do not pass upon the appli- cability of the Board's decision in Potlatch Forests, Inc., 87 NLRB 1193, reversed by the CALIFORNIA DATE. GROWERS ASSOCIATION 251 4. We agree with the Trial Examiner's finding that the aptitude tests, which were instituted on an experimental basis by the Respond- ent for the 1954-55 season and administered by the California Bureau of Employment, were not discriminatorily applied against participants in the strike of December 1953. The General Counsel in his exceptions contends that the Respondent's action in requiring strikers who had been deprived of their seniority to pass the tests as a condition of em- ployment, while not constituting an independent violation, was merely additional evidence of discrimination with respect to seniority. The record shows that all strikers reinstated during the 1953-54 season were on the March 18, 1954, seniority list and that in common with nonstrikers and replacements appearing on the list they were not required to take the aptitude tests before going to work. A number .of these employees, including an indeterminate number of strikers, were required to take the tests thereafter. The record shows, however, that none of these employees suffered a loss of employment as a con- sequence thereof. It also appears that some of the employees on the list were not required to take the tests at any time. In this connection the record does not show that the Employer treated strikers and non- strikers on the list differently by requiring that the former, but not the latter, take the test after going to work. All strikers not on the list were required to take the tests, a number of them before returning to work. Only employees not on the list were denied employment on the ground that they had failed the tests. While this evidence raises some suspicion as to the motivation of the Employer in adopting a policy of aptitude tests for some employees, but not others, at this time, we are of the opinion that the evidence is insufficient to warrant a conclusion that the difference in treatment accorded employees was unlawful discrimination motivated by employees' strike activity. THE REMEDY As we have found in agreement with the Trial Examiner that the Respondent refused to bargain with the Union which was properly certified as the representative of its employees in an appropriate unit, we shall order the Respondent to bargain with the Union. As we have found that the Respondent engaged in unlawful dis- crimination by (1) reducing the seniority of all reinstated strikers, and (2) excluding from the March 18, 1954, seniority list the 12 non- replaced strikers who refused employment on the January 1954 night Court of Appeals for the Ninth Circuit, N. L. R. B . v. Potlatch Forests, Inc., supra, in which the employer's policy of snperseniority for nonstrikers was advocated before the strike was settled and adopted at the time of settlement. However, Member Murdock, with due deference to the Court of Appeals for the Ninth Circuit, disagrees with the court's Potlatch holding and would in accordance with the Board 's own Decision in that case find that the Respondent's superseniority policy was unlawful without regard to whether it was adopted during or after the strike. 252 DECISIONS OF NATIONAL LABOR RELATIONS BOARD shift, and all other nonreplaced strikers who were not reinstated during the balance of the 1953-54 season , we shall order restored to their prestrike seniority all nonreplaced strikers who were on the prestrike 1952-53 seniority list except the 12 employees declining the night-shift assignment . In view of Manager Wright's testimony that in past seasons employees refusing night-shift work were the last hired and the first to be laid off , we shall order that the 12 employees be given only reduced seniority and a place at the bottom of the March 18,1954, seniority list. We shall also order reinstatement on the basis of the restored seniority of the discriminatees . Although the Trial Examiner refused to recommend a back-pay order at the request of the General Counsel on the ground that there was an absence of evidence of monetary losses incurred by employees as a result of the discrimination , we find merit in the General Counsel 's contention that, as the Trial Examiner found, the record discloses that fluctuations normally . occur during the Re- spondent's seasonal operations which involve layoffs and the recall of employees on the basis of seniority . Accordingly, we shall order back pay in those cases where seasonal hiring has been delayed, or seasonal layoffs have been accelerated , or where there has otherwise, been a loss of employment as a result of the Respondent's seniority policy. As we agree with the Trial Examiner that the Respondent has not discriminated against strikers by requiring aptitude tests , we shall not order the Respondent to cease and desist from continuing to require such tests. In view of our findings concerning the Respondent's refusal to bargain, and particularly the' Respondent's unlawful seniority policy, we find, contrary to the Trial Examiner, a potential threat of future violations and shall therefore include a broad cease and desist order. ORDER Upon the entire record in this case, and pursuant to Section 10 (c) of the National Labor Relations Act, the National Labor Relations Board hereby orders that California Date Growers Association, Indio, California, its officers, agents, successors, and assigns shall: 1. Cease and desist from : (a) Refusing to bargain collectively with United Packinghouse Workers of America, AFL-CIO, Local Union No. 78, as the exclusive representative of all employees in the unit found in the Intermediate Report to be appropriate, with respect to rates of pay, wages, hours of work, and other conditions of employment. (b) Discouraging membership in or activities on behalf of the above-named labor organization, or any other labor organization, by CALIFORNIA DATE GROWERS ASSOCIATION 253 discriminatorily reducing the seniority of employees or entirely de- priving them of seniority status, or in any like or related manner discriminating in regard to hire and tenure of employment, or any terms or conditions of employment. (c) In any other manner interfering with, restraining, or coercing its employees in the exercise of their rights to self-organization, to form and join labor organizations, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection as guaranteed in Section 7 of the Act, or to refrain from any or all such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment, as authorized in Section 8 (a) (3) of the Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Upon request, bargain collectively with the above-named labor organization as the exclusive representative of employees in the unit described in the Intermediate Report with respect to their rates of pay, wages, hours of work, and other conditions of employment, and if an understanding is reached, embody such understanding in a signed agreement. (b) Rescind forthwith its discriminatory seniority policy as repre- sented by its March 18, 1954, seniority list. (c) Restore to their prestrike seniority all nonreplaced strikers who sought reinstatement at the end of the December 1 to 8, 1953, strike and were on the 1952-53 seniority list, except the 12 employees who refused work on the night shift of January 1954. Restore the 12 employees to reduced seniority at the end of the March 18, 1954, seniority list. (d) Offer to the discriminatees reinstatement on the basis of their restored seniority. (e) Make whole the discriminatees whose seasonal hiring was de- layed, or whose seasonal layoffs were accelerated, or who otherwise suffered loss of employment because of the Respondent's seniority policy. (f) Preserve and make available to the Board or its agents upon request, for examination and copying, all payroll records, social- security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amounts of back pay due under the terms of this order. (g) Post at its place of business in Indio, California, copies of the notice attached hereto and marked "Appendix." I Copies of the 7 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." 254 DECISIONS OF NATIONAL LABOR RELATIONS BOARD notice, to be furnished by the Regional Director for the Twenty-first Region, shall, after being duly signed by Respondent's representative, be posted by the Respondent immediately upon receipt thereof, and maintained by it for a period of sixty (60) days thereafter in con- spicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respond- ent to insure that said notices are not altered, defaced, or covered by any other material. (h) Notify the Regional Director for the Twenty-first Region in writing, within ten (10) days from the date of this Order, what steps the Respondent has taken to comply herewith. MEMBER JENKINS took no part in the consideration of the above Decision and Order. APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, we hereby notify our employees that : WE WILL bargain collectively, upon request, with United Pack- inghouse Workers of America, AFL-CIO, Local Union No. 78, as the exclusive representative of employees in the appropriate unit with respect to grievances, labor disputes, wages, rates of pay, hours of employment, and other conditions of employment, and if an understanding is reached, embody such understanding in a signed agreement. The appropriate unit is: All packing shed employees employed at the Indio, Cali- fornia, packing shed, excluding all office and clerical employ- ees, and also excluding watchmen, guards, supervisors, and professional employees as defined in the National Labor Relations Act. WE WILL NOT discourage membership in the above-named labor organization, or in any other labor organization by discriminating with respect to seniority or any term or condition.of employment. WE WILL NOT, in any manner, interfere with, restrain, or coerce our employees in the exercise of their right to self-organization, to form, join, or assist the above-named or any other labor organiza- tion, to bargain collectively through representatives of their own choosing, to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, or, to refrain from any and all such activities, except to the extent that such right may be affected by an agreement requiring member- CALIFORNIA DATE GROWERS ASSOCIATION 255 ship in a labor organization as a . condition of employment, as authorized in Section 8 (a) (3) of the Act. WE WILL rescind our discriminatory seniority policy, as represented by the March 18, 1954, seniority list. WE WILL restore all nonreplaced strikers who applied for rein- statement at the end of the strike of December 1 to 8, 1953, except the 12 employees who refused assignment to the night shift of January 1954, to their prestrike seniority as indicated on the 1952-53 seniority list. We will restore these 12 employees to reduced seniority at the end of the March 18, 1954, seniority list. WE WILL offer the discriminatees reinstatement on the basis of their restored seniority status. WE WILL make the discriminatees whole for any loss of pay suffered as a result of the discrimination against them. All our employees are free to become or remain members of the above-named or any other labor organization. We will not discrim- inate in regard to hire or tenure of employment against any employees because of membership in or activity on behalf of any such labor organization. CALIFORNIA DATE GROWERS ASSOCIATION, 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. INTERMEDIATE REPORT AND RECOMMENDED ORDER STATEMENT OF THE CASE This proceeding, brought under Section 10 (b) of the National Labor Relations Act (61 Stat. 136), herein called the Act, against the Respondent, California Date Growers Association, Indio, California, upon charges filed by the Union, United Packinghouse Workers of America, AFL-CIO, Local Union No. 78, and upon com- plaint and answer, was heard, upon due notice, in Riverside, California, on January 9, 10, 11, 12, 1956. The allegations of the complaint, denied by the answer, are, in substance, that in violation of Section 8 (a) (1) and (5) of the Act, the Respond- ent on and after November 10, 1954, refused to bargain with the Union, the duly constituted representative of a majority of its employees in an appropriate unit; and in violation of Section 8 (a) (1) and (3), discriminated against certain of its em- ployees by reducing their seniority or depriving them of seniority status for the reason that they had participated in a strike against the Respondent. .All parties were represented at the hearing, participated, and were afforded full opportunity to present and to meet material evidence and to engage in oral argument and to file briefs. There was oral argument at the close of the hearing and briefs have since been submitted by the General Counsel and the Respondent. Upon consideration of the entire record in the case, and from my observation of the witnesses, I make the following: .FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT The admitted facts on commerce are: The Respondent is a California corporation with a packinghouse in Indio, Cali- fornia, where it is engaged in the business of processing and packaging dates and date 256 DECISIONS OF NATIONAL LABOR RELATIONS BOARD products. It annually ships from its Indio plant to points outside the State of California dates and date products of a value in excess of $50,000. On these facts it is admitted , and is found, that Respondent is engaged in com- merce within the meaning of the Act to an extent to bring it within the Board's current formula for asserting jurisdiction. II. THE LABOR ORGANIZATION INVOLVED The Union is a labor organization within the meaning of the Act , admitting to membership employees of the Respondent. III. THE UNFAIR LABOR PRACTICES A. Prefatory note The Re'spondent's business of processing and packaging dates is seasonal. The season normally opens in late August or early September and closes in the spring of the following year. Total employment varies both during season and between seasons. The seasonal peak is reached in late November or December , and at such times Respondent is normally able to employ all qualified persons seeking employ- ment with it. Beginning operations are governed by the amount of dates carried over from the previous season and prevailing crop conditions . Normally, packers are the first to be called , and a single line of operations is started ; at the seasonal peak there may be three lines of operations and a night shift. Preliminary to start- ing operations, employees who had acquired seniority status the previous season are contacted by telephone ; in 1952, notice of starting operations was mailed to persons carried on Respondent's payroll the preceding season. Regardless of seniority status, applications are required at the start of the season in order to determine current availability for employment . Both before Respondent's 1952 contract with the Union and under it, employees who had acquired seniority status in one season were given preferential hiring status over new applicants for employment . In short, an employee who acquired seniority status in one season had a reasonable expectancy of employment in the next succeeding season . Seniority I traditionally and under the union contract was on'a departmental basis. B. Chronological and other findings of fact 1. On December 27, 1951 , the Union, under its previous name of United Fresh Fruit and Vegetable Workers Local Industrial Union 78 , Congress of Industrial Organizations , was certified as representative of Respondent's employees in an ap- propriate unit,2 pursuant to a consent election in Case No. 21-RC-2274. 2. On October 28, 1952, Respondent and the Union entered into a contract effective from July 1, 1952, to July 1, 1953. 3. The agreement of October 28, 1952, provided in part as follows: SECTION 1. Seniority shall be obtained for the purposes of this agreement, when the employee has been employed by the Association for a period of not less-than twelve ( 12) weeks or fifty-one percent (51%) of the season. Any and all seniority heretofore acquired by employees shall remain in full force and effect . All other employees employed by the Association shall be known as "temporary employees." Seniority shall apply only to job classifications covered by this agreement. SEC. 2. In the event of layoffs or rehirings , seniority on a job classification basis shall be the determining factor. SEC. 4. Association shall mail notices of each season's opening date to employees two (2 ) weeks prior to the beginning of each season and each such employee shall sign the Association 's availability sheet or send a reply by mail within one ( 1) week after the mailing of such notices, declaring his availability. SEC. 5. Whatever seniority an employee has is lost if he (a) is not able to perform his usual duties. 'Respondent used the term "priority " rather than ".seniority " as descriptive of its system of recall outside the union contract . For the most part the terms are used interchangeably herein. 2 The unit agreed upon , and found to be appropriate , was-and is: All packing shed employees employed by the Respondent at its Indio , California, packing shed , excluding all office and clerical employees , and also excluding watchmen, guards, supervisors and professional employees as defined by the Act. CALIFORNIA DATE GROWERS ASSOCIATION 257 (b) is discharged for a just cause. (c) voluntarily leaves the employment of the Association without a written leave of absence. (d) fails to give notice and report as required under this section. SEC. 6. The seniority of employees shall be on a job classification basis. 4. The contract of October 28, 1952, expired on July 1, 1953, and was not re- newed nor extended. 5. On December 1, 1953, following an impasse in negotiations, the Union called a strike against Respondent. 6. On December 8, 1953, the Union terminated the strike. 7. During the strike Respondent continued to operate with nonstrikers and some replacements. 8. On December 8, 1953, substantially all those who had been on strike signed an availability list amounting to an unconditional application for reinstatement. 9. On and/or after December 8, 1953, and during the 1953-54 seasonal operations, a substantial number of former strikers were reinstated though not all of them for the reason that there were not job openings for all of them. 10. Strikers were reinstated in the order of their seniority as determined by seniority lists existing at the time of the strike and formulated pursuant to seniority provisions of the 1952-53 contract . This is referred to herein as the 1952-53 seniority list. 11. On or about January 18 , 1954, Respondent started a new production line on its night shift, and in their order of seniority as set forth above, proffered these jobs to former strikers who had not as yet been reinstated. 12. Twelve employees offered work on the night shift refused the offer for personal reasons. 13. On February 5, 1954, a consent-election agreement between Respondent and the Union, was approved by the Board's Regional Director , and on February 18, 1954, an election on the basis of the consent agreement was conducted by the Board's agents. Case No. 21-RM-280. 14.. At the February 18 election, the Respondent challenged the right to vote of the 12 employees who had been offered, and who had refused , work on the night shift, on the grounds that the said refusals constituted a quitting of their employment. 15. On March 24, 1954, the Board's Regional Director having found that the challenged ballots could determine the election results, and having conducted an investigation of the Respondent's claim, overruled the Respondent and issued a direction that the challenged ballots be counted. 16. The Respondent having filed exceptions to the Regional Director's report, the latter on April 22, 1954, directed a hearing on the challenges . This hearing was held on April 29, 1954. 17. On October 5, 1954, on consideration of the transcript of the April 29, 1954, proceedings, and briefs filed by Respondent and the Union, the Regional Director issued his supplemental report on challenges in which it was again directed that the challenged ballots in question be counted. 18. On October 19, 1954, a revised tally was made including the counting of the challenged ballots. 19. Following this revised tally, which showed a majority in favor of the Union, and on October 21, 1954, the Regional Director certified the Union as bargaining representative of employees in the appropriate unit as set forth in the consent- election agreement. 20. The Respondent thereafter filed objections to conduct affecting results of the election and these objections were in effect overruled by the Regional Director by letter dated October 27, 1954. 21. By letter dated October 22, 1954, the Union requested a meeting with Respondent for purposes of collective bargaining. A second letter dated November 2 reiterated the request. Representatives of the parties did meet on November 10, but it is clear that neither at this meeting nor at any subsequent time did the Re- spondent agree to recognize the Union's certification by the Board's Regional Di- rector as binding on it or enter into collective bargaining with the Union as the certified representative of its employees. . 22. At the hearing in the instant proceedings the Respondent admitted its refusal to recognize and bargain with the Union subsequent to its certification. 450553-5 8-v o1. 118-18 258 DECISIONS OF NATIONAL LABOR RELATIONS BOARD C. The issues 1. The refusal to bargain On the basis of items 21 and 22 of the chronological findings above, it is found that on and after November 10, 1954, the Respondent has refused to recognize and bargain with the Union. Respondent's contention is that the 12 former strikers who were offered and, for personal reasons, refused jobs on the night shift, quit their employment and because of that quitting thereafter had no employee status justifying their participation, as voters, in the consent election of February 18, 1954, and that in directing that their ballots, challenged by Respondent,3 be opened and counted, the Regional Director acted arbitrarily and capriciously? If Respondent is correct in this latter contention, the certification of the Union was invalid because except for a tally of the 12 challenged ballots the Union would not have received a majority of votes cast. If the certification was invalid the Respondent was under no duty to recognize and bargain with the Union. The issue is not whether the Regional Director was right or wrong in determining that the 12 employees in question were eligible to vote. By the terms of the consent-election agreement his decision was "final and binding." Having signed this agreement the Respondent, as a party to it, has no right to question the soundness of his judgment, as such, but, under the decisions, may show that in so deciding the Regional Director acted arbitrarily and capriciously.5 There are a number of ways in which this might be shown, such as a one-sided investigation, a refusal to permit the Respondent to present evidence supporting its position, or a decision based on no evidence of a probative character. There was nothing arbitrary or capricious in the procedures followed by the Regional Director with respect to the challenged ballots. As to the election itself, all parties certified that it was fairly conducted. The Regional Director's initial determination that the challenged ballots should be counted, was based on •an in- vestigation in which representatives of the Respondent participated. The Respondent filed a memorandum with respect to its position in the matter. Thereafter, on receipt of the Regional Director's report on challenges, Respondent filed exceptions and requested a hearing. This request was granted. At the hearing, conducted by an attorney of the Regional Office, all parties were afforded full opportunity to submit evidence on their respective positions. The Respondent participated in this hearing, and thereafter filed a brief with the Regional Director. After an elapse of some 6 months, the Regional Director issued his supplemental report in which the ruling was again adverse to the Respondent. Thereafter, a conference was arranged for the opening and counting of the challenged ballots and a date and time was set, a postponement of the original date having been granted at Respondent's request. Respondent complains that it was not actually present when the challenged ballots were opened and counted, and this is true. Respondent was not present because, though informed as to the date, the place, and the time, Respondent's counsel did not appear on time and Respondent's general manager though present at the Board's offices where the ballots were opened and counted, did not identify himself in such manner that those responsible for handling the ballots in question were aware that he was available. As a matter of fact, the counting of the ballots was delayed to allow for any ordinary tardiness on Respondent's part and proceeded only when it appeared that Respondent would not be present through its representatives. Ob- viously, there was nothing arbitrary or capricious here since it was Respondent's fault, and Respondent's alone, that it was not represented at the opening and count- ing of the challenged ballots, and, in any event, Respondent does not dispute the accuracy and bona fides of the count. From the foregoing, it is clear that Respondent had •a fair and full opportunity to present and amplify its position before the Regional Director before a final de- termination was made in the matter of the challegned ballots. It was not permitted to adduce any additional evidence in this proceeding because, obviously, the Regional Director could not have acted arbitrarily or capriciously on the basis of evidence that was not before him at the time he made his determination on the issue of the challenged ballots. g There were other challenged ballots but they are not an issue here and I shall not 'urther refer to them. 4 Actually, a Regional Director made the initial determination and an Acting Regional Director made the final determination. The matter being of no consequence, for con- ,enience I shall refer to each as the Regional Director. 5 Elm City Broadcasting Corporation, 111 NLRB 980, 981, and cases cited in footnote p. 981, therein. CALIFORNIA DATE GROWERS ASSOCIATION 259 Turning now to the evidence upon which the Regional Director based his decision: In the initial stage of his investigation affidavits were taken, and at the hearing :granted at Respondent's request, the sworn testimony of Respondent's general man- ager, James F. Wright, plant manager, Hillman Yowell, and personnel officer, Flor- ence Hawkins, as well as the testimony of several of the employees in question, was taken. From this testimony it appears that Respondent's operations normally opened with a day shift and then, as the workload increased, a night shift might be added; that at least the nucleus of the night shift was recruited from the day shift; that, on occasion, day-shift workers would be given a choice of transferring to the night shift; that they were free to accept or refuse the transfer, and if they refused they were neither laid off nor discharged nor regarded as having quit their employment; that night-shift work offered some advantages of advancement in job status and some priority in continuity of employment both as to the order of layoffs and order of recall in subsequent seasons. It is true that Wright testified that persons refusing night-shift work were dropped from the "priority list" but in the context of his entire testimony and that of other witnesses, it is clear that being dropped from the "priority list" in the sense in which Wright used the term, did not mean the loss of employee status. He testified: "I wish to point out then . . . that a person who wasn't willing to work nights, wasn't willing to work shorter weeks, wasn't willing to work during the hot weather, that that person wasn't laid off or fired because of it but they were the last hired and the first to be laid off." From what is virtually an undisputed state of facts, it seems clear that had the 12 strikers in question been at work on the day shift at the time Respondent offered them night-shift work, their rejection of that offer would not have caused their layoff or discharge and would not have been regarded by the Respondent as a quitting. They were not actually working on the day shift at the time they were offered night-shift work because they had been on strike and had not yet been reinstated. Absent a showing that they had been replaced or that their jobs had been abolished- and there was none-they occupied the same employee status when they were offered and refused night-shift work that was theirs when they went on strike, and it appears that all of them were day-shift employees at that time. (Section 2 (3) of the Act.) Their application for reinstatement did not place them in the category of new applicants for employment; they had acquired seniority status as shown by their placement on the 1952-53 seniority list, and they did not lose that status when they went on strike. The Respondent, however, appears to have treated them as new applicants for employment, without choice in the matter of accepting work on a night shift. The issue here is not whether their order on the seniority-or priority- list was affected but whether their employee status was wiped out by their refusal. Like the Regional Director I am convinced that it was not. If they had employee status they were entitled to vote, because the consent-election agreement provided that those eligible to vote were: All packing shed employees employed by the Employer at its Indio, California, packing shed during the last complete payroll period in January, 1954, and including all persons whose names appear on the 1953 seniority list; but ex- cluding any such persons who have been permanently replaced and those employees who have quit or have been discharged for cause, and have not been rehired or reinstated prior to the date of the election. As previously stated, the names of all 12 employees in question appeared on the 1953 seniority list. There is no evidence that any of the employees in refusing night-shift work intended to quit, or did in fact quit, other than evidence of their rejection of night- shift work for personal reasons. Nor do I think a voluntary yielding of their employee status can reasonably be inferred. Though, as testified to by Respondent's witnesses, night-shift work may have offered exceptional opportunities for advance- ment and preferment in continuity of employment, women employees for innumerable personal reasons, such as arranging for care of children, might choose to forego such opportunities and remain on their daytime jobs. The Respondent doubtless was well aware of this and, being aware of it, never made it mandatory for a day-shift worker to transfer to a night shift. Nor does the fact that in previous seasons certain of these 12 employees had accepted nightwork, or had indicated on their applications that they would accept nightwork, provide a sufficient basis for an inference that in refusing such work in January 1954, they quit , because circumstances change with the times and in January 1954, they may have been confronted with a situation of personal convenience entirely different from the occasions when they actually worked on a night shift or indicated on their applications that night-shift work would be acceptable.. In this connection, it is significant that in.making out applica- 260 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tions required of all employees regardless of status at the start of a season, it was. not required that an employee express a willingness or lack of it to work on a night shift, though the application forms made provision for such a statement, and em- ployees whose application forms indicated that night-shift work was not acceptable, were not thereby prejudiced in the order of their hiring. In short, there is no showing that any empolyee with seniority status lost that status by indicating that night-shift work was not acceptable. All reasonable inferences to be drawn from the testimony is that the 12 employees in question, in refusing night-shift work, did not intend to quit, and in view of past practices it may not be inferred that they would reasonably believe that their refusal would have the effect of relinquishing their employee status. That all 12 of these employees had actually applied for reinstatement following the termination of the strike, and that some of them inquired concerning availability of day-shift work at the time they refused the night-shift offer, reveals a state of mind inconsistent with a voluntary surrender of employee status. And, of course, the Respondent may not make that a quitting which lacks the assent of the person involved, either actual or implied. A quitting necessarily implies voluntariness on the part of one who quits. One other matter raised before the Regional Director in support of Respondent's position, was that 2 of the 12 employees whose votes were challenged gave illness as a reason for refusing the offer of work on a night shift. Neither had applied for a leave of absence. A leave of absence was normally required of an employee absent- ing himself from work because of illness. By their failure to apply for a leave of absence, the Respondent argues, they lost their status as employees. Obviously, a leave of absence is not required of employees who are participating in a strike, or are laid off. A leave of absence can only mean a leave of absence from a state of actual employment. The two employees in question had the status of employees at the time they received the offer of night-shift work but were not then actually working. Their regular jobs had not been abolished but were not then operative and there- fore their status was analogous to. that of laid-off employees. If they were free to accept or reject night-shift work and chose to reject it, they remained in the status of laid-off employees and there was no occasion for them to apply for a leave of absence. The Regional Director found, and I have concurred in his finding, that employees with acquired seniority status were not normally considered to have re- linquished their status as employees when and by refusing work on a night shift. From the foregoing and upon the entire record, it seems clear and is found, that in his decision on the challenged ballots the Regional Director did not act arbitrarily or capriciously, or upon insufficient or insubstantial. evidence. His certification of the Union was therefore valid and binding upon the Respondent. Accordingly, it is found that by its refusal on and after November 10, 1954, to recognize and bargain with the Union as exclusive representative of its employees in the unit set forth in the consent-election agreement and herein found to be appropriate,6 the Respondent violated Section 8 (a) (1) and (5) of the Act. 2. Discrimination with respect to seniority Prior to its contract with the Union, Respondent maintained a priority list which governed the order of layoffs during seasonal operations and rehirings at the start of a new season. Under its contract with the. Union- executed October 28, 1952, and expiring July 1, 1953, it was bound by the seniority system of that contract as set forth in item 3 of the chronology above. The priority list maintained prior to the contract, and the seniority list under it, followed the same general principles in method and order of compilation. Following the expiration of the contract Re- spondent continued seniority ratings as provided in the contract, at least up to the time of the December 1, 1953, strike. As previously stated, during the period of the strike from December 1 to December 8, the Respondent continued its operations with a work- ing force composed of nonstrikers and a few replacements? This was an economic strike and under the rule of the Mackay Radio cases the Respondent could lawfully hire new employees to fill the jobs of strikers. The General Counsel makes no issue of the five striking employees who were thus replaced. Following'the termination of the strike on December 8, and the unconditional offer to return to work made by the strikers on December 8, the Respondent reinstated all strikers for whom work was available and reinstated them in the order in which they appeared on the 1952-53 seniority list compiled under the union contract. o See footnote 2, supra. Actually, only five strikers were replaced during the strike. a N. L. R. B. v. Mackey Radio e- Telegraph Co., 304 U. S. 333, 346. CALIFORNIA DATE GROWERS ASSOCIATION 261 There is no contention made that any striking employee was denied reinstatement because of his or her union or concerted activities. Admittedly, however, all em- ployees reinstated upon termination of the strike , were reduced in seniority below .all employees who worked during the period of the strike. In short, while adhering to the old seniority list in the order of its reinstatement of striking employees, the Respondent in effect adopted a new overall seniority policy upon termination of the strike, which had the necessary effect of penalizing strikers while rewarding non- strikers, since thereafter, regardless of comparative seniority status at the time of and prior to the strike, all nonstrikers were given seniority over all strikers. This new policy was given concrete expression in the compilation of a new seniority list dated March 18, 1954. The reduction in seniority status was a matter of substance .9 Fluctuations occur during Respondent's seasonal operations which involve layoffs and such layoffs are normally made on the basis of seniority-or priority-lists; at the start of a new season, employees are recalled in the order of their seniority. Obviously, therefore, the continuity and duration of employment is governed, in large measure, by seniority status. Lacking such evidential factors, it would, in any event, be inferred that involuntary reduction of seniority is discriminatory,10 and this is true whether seniority follows contractual relationships or is unilaterally established by the em- ployer. True, the Act does not confer seniority rights upon strikers, and such rights are usually derived from union contracts," but where there exists a seniority system, whether that system derives from contractual relationships or the unilateral action of the employer, the Act prohibits a discriminatory application of it where such application discourages or encourages membership in a labor organization. Here, at all times material to the issue, whether or not it was called that, there existed a seniority system, and when at the conclusion of the strike it was changed to the detriment of the strikers who had not been permanently replaced, discrimina- tion occurred. It is not necessary that proof be adduced that such discrimination actually discouraged union and concerted activities. The inference is inescapable.12 Not all acts, however, which have the necessary effect of discrimination against those engaging in protected concerted activities, are unlawful under the Act. An economic striker may be permanently replaced and thus lose his job because of having engaged in a strike , and such action while necessarily and emphatically dis- couraging union activities , is lawful where it is consistent with, and because of the -exercise of the employer's "right to protect and continue his business by supplying places left vacant by strikers." Mackay Radio, supra. Motive controls here because in this situation "the [employer's] true purpose is the object of investigation with full opportunity to show the facts." N. L. R. B. v. Jones & Laughlin Steel Corp., 301 U. S. 1. If the employer has the "right to protect and continue his business by supplying places left vacant by strikers," it would seem to follow that he has also the right to take such other action as he deems necessary "to protect and continue his business" in the face of an economic strike, providing his motive is, in fact, "to protect and continue his business," and not to retaliate against and punish his striking employees . Determining motive in a given situation frequently requires "a high degree of introspective perception," 13 and this is true here where the discriminatory effect of the Respondent's action on seniority is apparent and substantial . There are certain objective factors present, however, which are invaluable in assessing motive. Independent of the action with respect to seniority , there is no evidence of antiunion bias on the part of this Respondent . There is no evidence that this Respondent opposed the unionization of its employees , or was in any way hostile to it. Such elections as were held were held pursuant to consent agreements. It is true that negotiation of an agreement to supersede the contract expiring July 1 , 1953, reached an impasse and presumably to break that impasse in its favor the Union called a strike, but no refusal to bargain is charged and no inference of antiunion sentiment 9 "Seniority rights are basic conditions of employment. . . ' N. L. R. B. v. Wheeling Pipe Line, Inc., 229 F. 2d 391 (C. A. 8). 11 N. L. R. B. v. InternationalBrotherhood of Teamsters, Chauffeurs, Warehousemen of Helpers of America, Local Union No. 41, 347 U. S. 17. N. L. R. B. v. Potlatch Forests, Inc., 189 F. 2d 82 (C. A. 9). ""Both the Board and the courts have recognized that proof of certain types of discrimination satisfies the intent requirement. This recognition that specific proof of intent is unnecessary where employer conduct inherently encourages or discourages union membership is but an applicaton of the common law rule that a man is held to in- tend the foreseeable consequences of his conduct." Gaynor News Company, Inc ., et at. V. N. L. R. B., 347 U. S. 17. ss N. L. R. B. v. Donnelly Garment Co., 330 U. S. 219, 123. 262 DECISIONS OF NATIONAL LABOR RELATIONS BOARD can rest on this state of facts. It may be assumed that the Respondent did not like it when its employees struck, but when they applied for reinstatement it took them back as fast as it had work for them to perform. With respect to its action in reducing the seniority of reinstated strikers, we have the undisputed testimony of its general manager, James F. Wright, that this action was taken for the purpose of reassuring its nonstriking employees and replacements concerning the continuity of their employment, and because it considered such action essential to safeguard and. protect its economic interests in continuing to operate during the strike.14 If there is something inherently false or specious in this position, I fail to discern it. The strike hit the Respondent when its seasonal operations were at their height since during the Christmas holidays Respondent's products are particularly in demand. It is not in the least incredible that nonstriking employees, and employees newly hired during the strike, would seek some assurance of preferred seniority status which would protect them from displacement by striking employees when and if the latter chose to return to their jobs, or that an employer would give such assurance if he felt it would bolster his economic situation. It is true that the Respondent did not call any of these employees to the witness stand to corroborate the testimony of its general 14 Excerpts from Wright's direct examination : 0. Now, during the period that you were in operation, did you have conversations with the employees either directly or through representatives with respect to the status of the employees who remained and the status of employees who were em- ployed and the status of employees who would come back to work?-A. Yes. I was in, you might say, constant touch with the employees during this period. In, fact, I used to pick them up-quite a few of them up and escort them into work every morning, and was in contact not only with the employees who remained during the- strike and those who were hired during the strike, and also the ones that returned. to work during the strike. : x e s m Q. What did you do with respect to the [non-striking and newly hired] employees. that I have described here?-A. Well, as would be natural under a trying situation, the employees would be concerned with their job security, and I assured them at the time that those who had remained through the strike, the replacements and the people who returned, that they would be-had become and would be treated as the nucleus of our work force ; that we didn't know how long the strike would'. go on; that we intended to continue to operate the plant and receive and grade- and pack and ship our dates, and that these people we felt were a necessary part of" our business ; and that I gave them the assurance they would be maintained if and' when the strike was terminated. s x s s a Excerpt from Wright's cross-examination : e Q. Anyway, what it comes down to is this, then : That when some of these people that worked during the strike came to you personally and wanted personal assur- ance that they would be taken care of after the strike, you gave it to them?- A. That's right. Q. And that is about all it amounted to?-A. Well, you say that is about all. It was a pretty important thing for the people Q. It is very important to a girl who had no seniority and was working during the strike and wondered what would happen to her job when seniority employees offered to come back. I understand that. But I want to know whether your' publication of your determination to protect these people went any farther than in- dividual assurances.A. I believe, Mr. O'Brien, that I talked-well, I know that during the strike I would talk to the working force that was there every day, and' this was one of the primary things these people were concerned about, so I am sure. they were advised of it in meetings of all the people who were at the plant. As I recall, I met-I had met with the graders and the people in that area of the plant in one meeting, and met with the packers and the people in the pitting department in that area of the plant at another meeting, but that was a daily occasion during' the strike. Q. That was to encourage them to get out production, let them know you were with them, is that it?-A. Well, it covered a lot of things. TRIAL EXAMINER: Mr. Wright, do you have any distinct recollection whether, during any of these meetings that you had with the employees during the strike, whether you specifically mentioned the matter of their security to them? Do you have a recollection of it? The WITNESS: Yes, I do. CALIFORNIA DATE GROWERS ASSOCIATION 263 manager, but neither did the General Counsel call any witness to refute it. I ob- served nothing in the demeanor of the witness which would lead me to discredit him. To the contrary, I was favorably impressed with his forthrightness and his cooperative attitude throughout the hearing. There are factors, relied on by the General Counsel in his brief, to counter this testimony. The old seniority list, posted in the plant, was not removed, it appears, nor was a new one, conforming to Respondent's revised policy, posted. It is re- membered, however, that the old. seniority list was not entirely discarded: it was still followed as to the order of reinstating the strikers. The union contract having expired, there was no requirement that the Respondent post its revised list or any list at all. There is also some question as to just when a revised seniority list, dated March 18, 1954, was first prepared, but this does not seem very significant inasmuch as it had little, if any, utility until the beginning of a new season. Further, it appears that Wright issued no instructions to Florence Hawkins, Re- spondent's personnel clerk, at a time when, according to Wright, the new seniority policy was instituted, and at the' time strikers were reinstated they were not told that their seniority had been reduced. Presumably, the General Counsel would have it inferred from such factors that the reduction in seniority of reinstated strikers, had not actually been determined at the time the strike was concluded and therefore could not have had as its moving cause the protection and continuance of Respond- ent's business during the period of the strike. In the face of Wright's positive and uncontested testimony to the contrary, I think such an inference is not justified. With a single exception, there is no showing that strikers on reinstatement inquired concerning seniority status and there is no showing of a deliberate withholding of information; nor was there any advice given them contrary to the position Respond- ent now asserts. It may well be that Respondent was not impelled to volunteer information which would be adverse to the reinstated striker's interests, until some occasion arose requiring the application of a new policy.15 Nor does it appear that the situation was such that once the revised seniority policy had been determined, notice of it would necessarily be channeled immediately to the personnel clerk. It was Wright's undisputed testimony that his supervisory staff was advised concerning the new policy during the period of the strike and the General Counsel apparently accepted this testimony inasmuch as no evidence was offered to refute it. Assuming, however, as apparently the General Counsel would have it found, that no definite formula for a revised seniority policy had been determined until after the strike, such delay would have little significance if, as Wright testified, assurances had been given to nonstrikers, during the strike, concerning the continuity of their employ- ment. It is sufficient that the action, when taken, was consistent with such assurances. Upon the evidence afforded me, I can only conclude that the General Counsel has not proved unlawful motive in a situation where motive is controlling. I am unable, in fact, to distinguish the situation here from the seniority displacement of economic strikers which the court found lawful in Potlatch Forests, Inc., supra. That decision stands squarely for the proposition that an employer may advance the seniority of nonstrikers to the detriment of economic strikers where the action is consistent with, and for the purpose of protecting and continuing his business during the strike. While in the Potlatch decision the court refers to those whose seniority was advanced as "replacements," it appears that this term as employed by the court included strikers who returned to their jobs before the strike was ended. I do not perceive a valid distinction between such employees and employees who, as here, never went on strike. Neither were actually "replacements" as that term was employed in the Mackay Radio case. Nor do I think the fact that in the Potlatch case the employer announced his new seniority policy before the strike was ended, is a material dis- tinction. In fact, the case at bar is stronger on its facts because in the Potlatch case it appears that the employer had given no assurances to his nonstriking em- 1s Excerpt from Wright's testimony on cross-examination : Q. Are you pretty sure that you did not tell any of the returned strikers that they had lost seniority by reason of the fact that some people had continued to work during the strike and they had not?-A. I didn't personally. One of the problems after a strike when you have people come back, you have the problem of trying to rebuild a coordination between some people who are out and some people that were in, and it isn't too good business policy to agitate that situation at the time they return. You are interested in business continuing. Q. Anyway, what it comes down to is this, then : That when some of these people that worked during the strike came to you personally and wanted personal assur- ance that they would be taken care of after the strike, you gave it to them?- A. That's right. 264 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ployees that "their places might be permanent," whereas the uncontested evidence here is that such assurances were given. I do not of course undertake to assess the merits or demerits of the Potlatch decision. It is the law-at least in the Ninth Circuit. The Board did not seek certiorari and in my opinion it has not been overruled in any material respect by the Supreme Court in Radio Officers and related cases, supra. If the Board does not intend to follow the court in Potlatch, it is for the.Board and not the Trial Examiner to voice its dissent, and until it does so, I consider myself bound by the court's de- cision .16 Accordingly it is found that the Respondent did not violate the Act when, for economic reasons, it gave nonstriking employees and replacements seniority over striking employees. In certain respects, however, the Respondent went beyond its stated objectives in advancing the seniority of its nonstriking employees and replacements, and in so doing it went outside the purview of the Potlatch and Mackay decisions. First, with respect to the 12 female employees who went on strike and were there- after offered reinstatement on a night shift which they refused. The Respondent, taking the position that by the said refusals they quit their employment, dropped them from its seniority list altogether. Accordingly, their names do not appear on the March 18, 1954, list. Such action could have had nothing to do with the success- ful prosecution of Respondent's business during the strike, and the Respondent does not contend that it did. Such action was discriminatory if in fact the strikers had maintained their status as employees, and they had maintained that status by virtue of Section 2 (3) of the Act because they had not been permanently replaced nor had their jobs been abolished. Because of seasonal curtailment or curtailment due to strike, there was not then work for them on the day shift but there is no showing that their day-shift jobs had been abolished. As previously found, the action was discriminatory because customarily and normally day-shift workers were not required to accept night-shift work in order to maintain employee status. Such action, resulting in destroying their seniority status altogether, had the necessary effect of discouraging union affiliation, and, being without the justification which made Re- spondent's revised seniority policy valid in other respects, was unlawful. It is in such a situation that the common law rule that a person is held to intend the fore- seeable consequences of his conduct, finds its proper application.17 Also excluded from Respondent's March 18, 1954, seniority list, were all striking employees who were not actually reinstated during the 1953-54 season. They, too-with the exception of those who were replaced during the strike, and there is no issue concerning them-had continuing employee status, not having been replaced and their jobs not having been abolished. Preferential status 'because- of having worked during a prior season was recognized both under the union contract and prior to it. These employees were not, as Respondent chose to regard them, new employees from the start of the 1954-55 season.18 Their status as employees had not been affected by the fact that for some 8 days they were on strike, and they were therefore entitled to be placed on Respondent's new seniority list, though, as previous- ly found, Respondent could lawfully reduce their seniority below that accorded non- strikers and replacements. As in the case of the 12 employees whom Respondent le Mathieson Chemical Corporation, et at., 114 NLRB 486, cited by the General Counsel, is distinguishable, because in that decision the Board said : It is highly significant that not until the strike was over, and all the strikers had been put back to work, did the Respondent for the first time decide to separate its employees into two seniority groups for layoff purposes, depending on whether or not they had reurned to work before the end of the strike. The Respondent does not claim and there is no suggestion in the record that, as an economic measure to get employees to work during the strike, it had promised them super-seniority. In fact, it does not appear that the matter of relative seniority was ever mentioned to any employees before the end of the strike. Other cases, cited by the General Counsel, in which labor organizations have been found to have violated the Act by causing an employer to discriminate with respect to seniority; are inapposite because of express limitations stated in Section 8 (b) (2) and the proviso of Section 8 (a) (3) of the Act. Minneapolis Star and Tribune Company, 109 NLRB 727; Pacific Intermountain Express Company, 107 NLRB 837. 17 See Intermountain Equipment Co., 114 NLRB 1371. 18 Testimony of Florence E. Hawkins, personnel clerk : Q. Miss Hawkins, were they (strikers not reinstated during the 1953-54 season] returned as new employees?-A. Yes, Sir. CALIFORNIA DATE GROWERS ASSOCIATION 265 regarded as having quit, there was no economic justification for dropping them from the seniority list. It is true that Respondent in hiring employees for the 1954-55 season, after exhaust- ing its March 18, 1954, priority list, and before hiring persons not previously em- ployed, followed the 1952-53 seniority list, but it is clear that it did so because of pending litigation, as a matter of caution, and not because it considered that the employees in question had acquired and retained preferential status and were entitled to such status as a matter of right. There is of course a difference between a right and a gratuity, and we are here concerned with rights under the Act. It is found that the Respondent in denying seniority status to those of its employees who went on strike, were not replaced during the strike, and were not thereafter re- instated during the 1953-54 season, including the.12 employees who were offered and refused work on a night shift, discriminated against them with respect to terms and conditions of employment, thereby discouraging union affiliation, in violation of Section 8 (a) (3) of the Act. The said action interfered with, restrained, and coerced employees in the exercise of rights guaranteed under Section 7 of the Act, and consti- tuted a violation of Section 8 (a) (1) of the Act.19 3. Alleged discriminatory application of aptitude tests Near the start of seasonal operations for the 1954-55 season, but not at the start, persons available for employment, both old and new employees, were given aptitude tests. Aptitude tests had not previously been used in Respondent's operations. These tests were administered by the California Bureau of Employment, and ap- plicants for employment who failed to pass the tests, were not hired. There is no allegation in the complaint that these tests were discriminatorily applied against strik- ing employees, but that was the position of the General Counsel at the hearing, and testimony in the matter was taken without objection. I shall therefore consider it though it would seem that a matter of such potential gravity would more properly appear as a part of the pleadings in the case. The General Counsel's position rests on the contention that none of the employees whose names appeared on Respondent's March 18, 1954, seniority list were required to take the tests as a condition of being employed for the 1954-55 season, whereas all applicants for employment not on the March 18 list were required to take and pass the tests before being employed. It has been seen that the March 18 list contained the names only of persons who worked during the December 1953 strike or were re- instated during the 1953-54 season, and it has been found that the Respondent was in violation of the Act when it deprived strikers who had not been replaced and who were not reinstated during the 1953-54 season, of seniority. status. In support of his position, the General Counsel examined but one witness. That witness was Respondent's personnel clerk, Florence E. Hawkins, acknowledged by the General Counsel to be a reliable witness. Concerning the use of aptitude tests, Hawkins testified: ". . it was purely experi- mental as far as the date industry was concerned. They had never tried it. These tests had been tried in various other lines of fruit, and . . . proved very beneficial, consequently, they weren't too sure as to what the results would be in our industry, but they wanted to try, and he [Proser, an employee of the State of California as- signed to the Employment Office in Indio], plus Mr. Bonham, 1?] and all connected with the deal felt that they could do us a lot of good." This is the sole evidence as to how the aptitude tests came to be given to Respond- ent's employees. I see nothing implausible about it. Admittedly, no employee whose name appeared on the March 18 list was required to take the test before going to work. Admittedly, a substantial number of them were required to take the test after going to work. It was Hawkins' further undis- puted testimony that not all persons hired whose names did not appear on the March 18 "'The Respondent in its brief argues that it was not shown that any of the persons whose seniority was affected were in fact strikers or affiliated with the Union. Respond- ent, however , admitted, the allegations of the complaint that on December 1, 1953, the Union called the strike and on December 8 terminated it. This being admittedly -a union strike it is immaterial whether the strikers were individually members of the Union , for discrimination practiced against them for engaging in the strike whould be violative of the Act regardless of union affiliation , and would have the necessary effect of discouraging union affiliation . As to the identity of persons engaging in the strike, Hawkins testified that substantially all of the strikers upon termination of the strike signed an unconditional request for reinstatement . It is a reasonable inference that all persons signing such a statement of availability , were in fact strikers. 266 DECISIONS OF NATIONAL LABOR RELATIONS BOARD list, were required to take the test before going to work, though they were later required to take the test. It would appear, however, that a majority of those whose names did not appear on the March 18 list were required to pass the test before going to work. Concerning these matters Hawkins testified: ". . we wanted everyone to take it [the aptitude test], but it just so happened that they couldn't get the setup down in time for it to be given to those people [referring to the March 18 list]. We called them in to work sooner than they were able to get the setup made. That is the reason they were hired without it." Continuing with Hawkins' examination by the General Counsel: Q. But, at least, as far as 1954-the fall of 1954, the only people who were given these aptitude tests were those whom you regarded as new applicants?- A. No, that is not so, because, as I say, the only reason all of them weren't given the test was because they didn't have things. available to give them that rapidly, but we had some people of this list that it was possible to give it to them. He had the time to give it to them, and it was possible that we could have them take it 20 We had some on the list that had taken it, but not the complete list, you know, because we didn't have the time, and wherever possible, I tried to see that they had the test, whether they were on the list or whether they were new ones. Continuing further with General Counsel's examination of Hawkins: Q. Now, with regard to people who went to work, and whose name was not on the March 18th list, were all of those required to take the aptitude test?-A. No, because there again they were not set up to handle them in the volume in which I was required to bring them in, consequently, it was necessary for me to hire people who had not had the aptitude test because they could not process them over there rapidly enough for us for our needs. From the foregoing it is clear, if Hawkins is believed, that the sole reason why employees on the March 18 list were not given aptitude tests before being offered employment, is that at the time Respondent began hiring for its 1954-55 season, the State office was not as yet equipped to administer the tests, and for the same reason employees not on the March 18 list but the first to be hired among those whose names were not on the March 18 list, also were not given the tests before going to work. I can see no reason not to credit Hawkins who was the only witness to testify in the matter and whose testimony in all other respects has been given credence and has been relied on by the General Counsel. If this testimony is credited, and it is, there was no discrimination with respect to the order in which aptitude tests were ad- ministered, as between persons whose names appeared on the March 18 list and those hired later, that is not explained by the inability of the State office to process the tests in the order of hirings. It is also borne in mind that all strikers who were reinstated during the 1953-54 season appeared on the March 18 list. In common with all others on that list, they were not required to take the aptitude tests before going to work, and, if later required to take the tests they suffered no loss of employment as a consequence thereof. Finally, it appears that the General Counsel would have inferences of discrimina- tion drawn from the fact that no one on the March 18 list was denied employment because of the aptitude tests whereas a number whose names were not on the March 18 list were denied employment on the grounds that they had failed the test. But it does not affirmatively appear that anyone on the March 18 list who took the test failed it. The General Counsel at the hearing stated that this was immaterial but I should think it would be material if failing the test they were nevertheless retained whereas employment was refused to those not on the list who failed the test. We must assume, however, that no one on the March 18 list failed to pass the aptitude test because there is no evidence that they did. Some of those not on the March 18 list did fail the test and were denied employment. We are asked to draw the inference of discrimination from these naked facts alone. But absent any evidence whatever of the competence of those failing the tests other than the fact of acquired seniority, or evidence that the tests were more exactingly applied in the one situation than in the other, or of collusion between the Respondent and the State office which applied the tests-for, if General Counsel is right it would amount to that-such an inference would in fact be not an inference but pure speculation. It seems clear, and is found, that the General Counsel's position that the aptitude tests were used by Respondent to rid itself of unwanted strikers, for the reason that they went on strike, is without substantial support in the record. 2.Respondent's records corroborate Hawkins' testimony that a substantial number on the March 18 list, though by no means a majority of them, took the aptitude tests. CALIFORNIA DATE GROWERS ASSOCIATION 267 IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent, set forth in section III, above, occurring in con- nection with the operations of the Respondent described in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States , and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY It having been found that the Respondent engaged in unfair labor practices by refusing on and after November 10, 1954, to bargain with the Union though the Union had been properly certified as representative of its employees in an appropriate unit, it will be recommended that on request the Respondent bargain with the Union. It having been found that the Respondent discriminated against certain of its strik- ing employees by depriving them of seniority status, it will be recommended that as to such of those who had acquired seniority status prior to the strike as shown by the inclusion of their names on the 1952-53 seniority list, and as to such of these as requested reinstatement upon conclusion of the strike , as shown by affixing their names to an availability list on or about December 8 or otherwise identifying them- selves to Respondent as desiring reinstatement , the Respondent restore to such of them as have not since quit their employment or been discharged for cause,21 the seniority status that would have been accorded them had they been reinstated during the 1953-54 season, by inclusion of their names on the Respondent's March 18, 1954, seniority list. The General Counsel seeks a back-pay order, but I can find no basis in the evidence for such an order and therefore none will be recommended . It is true, as the General Counsel argues, that the computation of back pay may be left to compliance, but I consider it essential as a basis for a back-pay order even in general terms, that it be shown that losses were incurred as a result of the unfair labor practices. I do not find in the evidence here the slightest basis for an inference that money losses were incurred. I do not find in the circumstances of this case a potential threat of future viola- tions, or an underlying purpose generally to thwart and discourage organizational activities, and therefore I shall not recommend a broad cease and desist order. Upon the basis of the foregoing findings of fact, and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. United Packinghouse Workers of America, AFL-CIO, Local Union No. 78, is a labor organization within the meaning of Section 2 (5) of the Act. 2. Since October 21, 1954, the said labor organization has been and now is the' exclusive representative of all Respondent's employees in the following unit ap- propriate for the purposes of collective bargaining within the meaning of Section 9 (a) of the Act: All packing shed employees employed by the Respondent at its Indio, California, packing shed, excluding all office and clerical employees, and also excluding watchmen, guards, supervisors, and professional employees as defined in the Act. 3. By refusing on and after November 10, 1954, to bargain collectively with the aforesaid labor organization as exclusive representative in the above appropriate unit, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (5) of the Act. 4. By discriminating in regard to the hire, conditions, and tenure of employment of its employees whose names appeared on the 1952-53 seniority list, who participated in the December 1 to 8 , 1953, strike and thereafter unconditionally applied for reinstatement but were not reinstated during the 1953-54 season, thereby discouraging membership in the aforesaid labor organization, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (3) of the Act. 5. By interfering with, restraining, and coercing employees in the exercise of rights guaranteed in Section 7 of the Act, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act. 6. The aforesaid unfair labor practices affect commerce within the meaning of Section 2 (6) and (7) of the Act. 1This qualification I deem necessary in view of the extraordinary (?) lapse of time ;between the occurrence of the unfair labor practices and the hearing herein. 268 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 7. The Respondent has not engaged in unfair labor practices by according its nonstriking employees and replacements during the period of the December 1 to 8, 1953, strike , superseniority over its employees who participated in the strike. 8. The Respondent has not engaged in unfair labor practices by instituting and discriminatorily applying a system of aptitude tests. [Recommendations omitted from publication.] H. Muehlstein & Co., Inc. and Emmett A. Hunter and Rubber and Plastic Workers Union, Local No. 82, affiliated with Distillery, Rectifying Wine and Allied Workers' International Union of America, AFL-CIO. Case No.13-CA-2251. June 21,1957 DECISION AND ORDER On December 11, 1956, Trial Examiner Reeves R. Hilton issued his Intermediate Report in the above-entitled proceeding, finding that Respondent had engaged in and was engaging in certain unfair labor practices, and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Inter- mediate Report attached hereto. Thereafter, Respondent filed ex- ceptions to the Intermediate Report together with a supporting brief. Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its powers in connection with this case to a three-member panel [Chairman Leedom and Members Bean and Jenkins]. 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, Respondent's exceptions and brief,' and the entire record in the case, and hereby adopts the findings, conclusions, and recommendation of the Trial Examiner with certain modifications.2 ' These adequately present Respondent 's position . Its request for oral argument is therefore denied. 2 The Trial Examiner found that "in delegating to the Union final authority in the determination of whether an employee is a member in 'good standing ,' and that the Union could effectuate his dismissal when he ceased to maintain that status," Respondent vio- lated the Act. As no exceptions have been taken to this finding, we adopt it pro forma. Similarly , no exceptions have been taken to the Trial Examiner's finding that , because the parties did not attempt to enforce the unlawful security provisions in their contract, Respondent did not violate Section 8 ( a) (3) by the inclusion of such unlawful clauses in its contract with the Union. We also adopt this finding pro forma without neces- sarily adopting the Trial Examiner's rationale. See Carty Heating Corporation, 117 NLRB 1417; County Electric Co., Inc., 116 NLRB 1080, 1081-1082; and Port Cheater Electrical Products Corporation , 97 NLRB 354, 355-356, where we have held that dis- criminatory contractual provisions are also violative of Section 8 (a) (3) of the Act whether or not they are enforced , unless there is an° actual agreement between the parties not to enforce them. . Although not reflected in the Intermediate Report the contract accords employees. the requisite 30-day grace period in which to join the Union. 118 NLRB No. 34.