George F. Joseph Orchard Siding, Inc.

976 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2: Local 153, Office Employees International Union, AFL-CIO, is a labor organi- zation within the meaning of Section 2 (5) of the Act. 3. All office and clerical employees of Local 11 employed at its offices in New York, New York, exclusive of all supervisors as defined in Section 2(11) of the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act. 4. All office and clerical employees of the Welfare Trust Fund employed at its offices in New York, New York, exclusive of all supervisors as defined in Section 2(11) of the Act, constitute a unit appropriate for the purposes of collective bargain- ing within the meaning of Section 9(b) of the Act. 5. Local 153, Office Employees International Union, AFL-CIO, was, on December 15, 1958, and at all times thereafter has been , the exclusive representative of the employees in each of the above-described units for the purposes of collective bargain- ing within the meaning of Section 9(a) of the Act. 6. By refusing to bargain collectively with Local 153, Office Employees Inter- national Union, AFL-CIO, on or about December 15 , 1958, and thereafter, as the exclusive representative of the Respondents ' employees in the respective appropriate bargaining units, the Respondent Chain Service Restaurant , Luncheonette & Soda Fountain Employees, Local 11, AFL-CIO, and the Respondent Welfare Trust Fund, Respondent Murray Solomon, administrator of the Fund, and Respondent trustees, have engaged in and are engaging in unfair labor practices within the meaning of Section 8 (a) (5) of the Act. 7. By unilaterally granting wage increases to their employees the Respondents thereby violated Section 8(a) (5) and (1) of the Act. 8. By sponsoring and sanctioning the circulation among their employees of a peti- tion of resignation from Local 153, and by threatening employees with discharge if they refused to sign the petition or promising benefits if they did so, the Respondents thereby violated Section 8(a) (1) of the Act. 9. 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.] George F. Joseph Orchard Siding Inc. and Mildred E. David. Case No. 19-CA-2076. August 14, 1961 DECISION AND ORDER On March 29, 1961, Trial Examiner Martin S. Bennett issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had not engaged in the unfair labor practices alleged in the complaint and recommending that the complaint be dismissed in its entirety, as set forth in the Intermediate Report attached hereto. Thereafter,' the Charging Party filed exceptions to the Intermediate Report, and Respondent filed an answer to the exceptions. The Board 1 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 In- termediate Report, the exceptions, and the entire record in this case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner. [The Board dismissed the complaint.] '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 McCulloch and Members Rodgers and Leedom]. 132 NLRB No. 76. GEORGE F. JOSEPH ORCHARD SIDING INC. INTERMEDIATE REPORT AND RECOMMENDED ORDER 977 STATEMENT OF THE CASE This case was heard at Yakima, Washington, on January 31, 1961. The com- plaint, as amended, alleges that Respondent, George F. Joseph Orchard Siding Inc., refused to employ the charging party, Mildred E. David, from approximately Sep- tember 20 through December 30, 1960, because of its belief that she had engaged in union or concerted activities, thereby engaging in unfair labor practices within the meaning of Section 8(a)(3) and (1) of the Act. Oral argument at the close of the hearing was waived and briefs have been submitted by the parties. Upon the entire record in the case, and from my observation of the witnesses, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF RESPONDENT George F. Joseph Orchard Siding Inc. is a Washington corporation with its principal plant at Yakima, Washington, where it is engaged in the cold storage, packing, and shipping of fresh fruit. During its last fiscal year, it sold and shipped fruit valued in excess of $50,000 to points outside the State of Washington. I find that ,the operations of Respondent affect commerce. II. THE ALLEGED UNFAIR LABOR PRACTICES A. Introduction; the issue Respondent's plant has never been organized by a labor organization and there is no substantial evidence of union activity among its employees at any time. The Charging Party, Mildred E. David, worked as a packer for Respondent during the various seasons from October 1957 through July 8, 1960, these including the cherry season for 3 or 4 weeks in June, the pear season starting in August, and the apple season starting in September and running through the winter. The last season she worked, prior to the dispute treated herein, was the 1960 cherry season which started in June and ran through the pay period ending on July 9, 1960. David was not called back to work in September 1960 when the pear and apple seasons started, but was offered employment by 'Respondent on December 30, 1960, pursuant to advice by its counsel, the instant charge having been filed in October. Because of her convalescence after surgery in November 1960, David did not return to work until January 23, 1961, and she was still employed by Respondent at the time of the instant hearing. The sole issue herein is whether Respondent failed and refused to recall David in September 1960 because of its belief that she had contacted a labor organization in some manner not precisely defined herein. This labor organization, only vaguely referred to in the record, appears to be Local 760 of the Teamsters which repre- sented employees in a number of packing plants in the Yakima area. What is pri- marily relied upon herein by the General Counsel in certain brief testimony at- tributing to Arthur Enbom, Respondent's, production and warehouse manager, a statement on September 6 or 7, 1960, allegedly disclosing his discriminatory motiva- tion. It is to be noted, however, that David did not, so far as this record discloses, contact this labor organization or engage in any other union activities prior to the date Respondent refused to take her back, September 6 or 7, 1960; indeed, she testi- fied that she was not a member of a union before September 9 and there is no evi- dence of union activity by any other employees. B. Sequence of events Although Respondent has never been organized, it has made a practice of fol- lowing the wage scales and related pay requirements negotiated by a local trade association, Tree Fruits Labor Relations Committee, Inc., which represents in excess of 20 local packinghouses in the area but not Respondent. The most recent agreement contained a requirement for 4 hours call-in pay when an employee was utilized for a lesser period and Respondent had followed this practice. During the 1960 cherry season, Respondent abandoned its practice with respect to call-in pay; it appears that this resulted indirectly from a wage controversy between Tree Fruits and the labor organization with which it was negotiating at that time. The General Counsel has introduced evidence of a minor dispute involving David and the 4-hour pay requirement. This incident, as well as a later incident in September primarily relied upon by the General Counsel, also involved • David's 'coworker, Georgia Williams, an employee whose seniority dated back to 1953. 978 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The cherry season ended on or about July 8 and, according to David, and Re- spondent's records so indicate, the girls worked 11/2 hours that day. In David's presence, Williams asked Foreman Arthur Roberts if they would be paid for 4 hours and if their timecards should be so marked, consistent with practice. Roberts re- plied that there was no longer a (Tree Fruits) contract in effect and that they should put down only the actual time worked. Roberts testified similarly that he told the girls that they would be paid only for the time worked, because Respondent was not operating pursuant to any contract. According to Roberts, there was another incident 2 days earlier when Williams and David reported for work at 10:30 a.m. Williams then asked if the women should put down 10 a.m. as their starting time, this being the hour the shift had started, and Roberts told them to put down their actual starting hour. While these incidents are manifestly on the trivial side and lend no support to the General Counsel's position herein, they nevertheless demonstrate that these two women had been a source of some friction in the past. The cherry crews were laid off in July and Respondent resumed operations on September 6 or 7 with the packing of the pear crop. The apple season, a longer season, started several weeks later on September 19, according to David, and be- tween September 17 and 20, according to Williams. The same crews are regularly used for both the pear and apple crops. The General Counsel has relied chiefly on certain conversations that took place on September 6 or 7 between General Manager Enbom and Williams and David. The respective versions are in marked conflict. Williams testified that she te'ephoned Enbom and asked why she had not been called back to work. He replied that she "was unhappy out there," and Williams stated that she was no unhappier than any- one else. Later that day, she asked David to drive her to the plant. Upon arrival, Williams entered the plant and David remained in the car. According to Williams, Enbom escorted her into the office of President Joseph and no one else was present. She pointed out that she needed the work because of family responsibilities and Enbom again brought up her "unhappiness ." He also stated that she had "appealed against" Respondent to the State unemployment compensation agency. Williams insisted that she had only endeavored to obtain another check which had been improperly withheld by that agency. Enbom then added that "David went to the union ." Williams interjected that this was untrue because "she [David] did not go to the Union. The girl that went to the Union" was working at that very moment for Respondent. Enbom did not respond to this and he told Williams that Foreman Roberts would telephone her that evening about employment. Williams and David agree that Williams returned to the car, and, according to Williams, she informed David of this conversation. David promptly entered the plant and testified that she confronted Enbom and asked him to clarify the statement he had made to Williams about her "going to the Union." Enbom "didn't say anything" in response to this accusation and David asked if she would be given a job for the season. Enbom replied that he could not give her such an assurance at that time, but that the matter would be cleared up by Friday, several days later. Still later in her testimony, David was asked by the General Counsel if she had said anything to Enbom in addition to pointing out his error concerning her "going to the Union." She replied that she had told Enbom that she "knew the party that had gone to the Union . . . but it wasn't me . I said she was working [for Respondent] at that time." Enbom did not reply. David did not mention any particular union. It is to be noted that her testimony conflicted with that of Wil- liams, because David testified that Sales Manager James Truesdell was present in the room during the conversation , whereas Williams contended that he was not. The testimony of Enbom is in marked contrast. He testified, initially, in large measure contrary to the testimony of Williams, that there had been a meeting sev- eral weeks earlier with Williams during which they discussed the "disharmony" on the packing line. He further testified that Williams appeared at the plant on September 6, and I find, as both Enbom and Truesdell testified, that Truesdell was present when both women respectively appeared on the scene and that the conver- sations took place in Truesdell's office. Indeed , as noted, David placed Truesdell on the scene although Williams did not. Truesdell testified, and I find, that Enbom had asked him to be present for this meeting. Enbom testified that Williams came in, that he escorted her immediately into Truesdell's office, and that they did not enter Joseph's office. Williams asked about her prospects for returning to work and Enbom replied that he and Roberts had not as yet decided upon this. He went on to discuss the "disharmony" among the sorters. Williams claimed that she was innocent in this matter and had done good GEORGE F. JOSEPH ORCHARD SIDING INC. 979 work. Enbom admitted that her work was good, but that the "friction" among the packers had to be eliminated. Enbom told Williams that he would advise her whether or not she would be recalled and that he would have Foreman Roberts telephone her. Williams left and shortly thereafter David appeared in the office doorway, still in the presence of Truesdell, and asked, "What is to come of me?" Enbom replied that she would not be working for Respondent because she was unhappy there. David claimed and Enbom admitted that she had done her work well, but nevertheless Enbom escorted her to the door; she not only placed Truesdell on the scene, but, in addition, did not place the talk in Joseph's office, unlike Williams. These two conversations lasted approximately 15 minutes, the talk with Williams, an old school chum, being the longer. Enbom categorically testified that no reference whatsoever was made to Williams' difficulties in obtaining her last unemployment compensation check, and that there had been no reference to the union activities of anyone. He conceded that both were good workers. Truesdell flatly supported the testimony of Enbom that there was no reference to any unemployment compensation claim by Williams or to David's union activi- ties. His testimony was, I find, erroneous in one respect. He contended that Williams remained in the room until David finished her talk with Enbom and that the two women then left together. The record demonstrates, and I find, as Enbom, Williams, and David testified, that Williams left before David entered the room. For the reasons set forth below l believe and find that Enbom's testimony, sub- stantially corroborated by that of Truesdell, is the more reliable: (1) Initially, there is no evidence of any union organizational activity among Respondent's employees. David herself testified that she did not join the Union before September 9, a date subsequent to this incident. i(2) Both women testified that they told Enbom someone else then working for Respondent, rather than David, was the one who had "gone to the Union." It would certainly seem probable that a discriminatorily motivated employer would have taken up the issue and would have inquired concerning the identity of the true culprit. (3) Even on David's own version, she made no effort to contact Respondent on the following Friday. To the contrary, she went to the plant on 'September 20 to retrieve her chair, hardly an act consistent with the prospect of her being recalled. This lends credence to Enbom's testimony that he told David she would not be working there. (4) The refusal to recall Williams to work, on her own testimony, is unrelated to any union activities, yet she and David were treated similarly. Moreover, her testimony about Enbom's remarks does not appear to have involved a complaint by her against Respondent. Her complaint, if any, was solely with the State of Washington which had allegedly deprived her of an unemployment compensation check. Williams was telephoned on the evening of September 7 by Foreman Roberts who instructed her to report for work the next day and told her that he wished no further discord in the plant. Williams did so and is still employed by Respondent. Roberts testified that he recalled Williams pursuant to instructions from Enbom, the latter having explained to Roberts that Williams had visited him in search of work.' David did not attempt to contact Respondent again that week nor during the fol- lowing week as well. On September 19, she heard that additional hiring was taking place and, on September 20, as she testified, went to the plant only for the purpose of retrieving her chair. She testified that she was observed but not spoken to by Enbom and Foreman Roberts; that Schlagel, then transferred to the job of fieldman, brought her the chair; and that he stated, "I wish you would call Mr. Enbom again." David replied that she had called Enbom once and that he knew her telephone num- ber. She claimed herein that she attempted to telephone him during the following week, that he was not in, and that she did not leave any message. 11 C: Contentions and conclusions Turning to Respondent's defenses herein, it relies upon certain difficulties in the Golden Delicious line near the close of the 1960 season involving David and Wil- 1 Williams testified that Roberts said he was acting pursuant to Enbom's instructions inasmuch as he, Roberts, had suffered from ulcers when Williams previously worked at the plant. 614913-62-vol 132-63 980 DECISIONS OF NATIONAL LABOR RELATIONS BOARD liams. It basically claims that although they were competent workers, it sought to eliminate a source of dissension in the plant. (1) Several weeks before the end of the season , on or about February 1, 1960, according to Foreman Schlagel, David came to him and complained that apples were coming down the wrong belt, that is, they had been graded incorrectly. She asked for instructions and Schlagel told her "to take them off and put them on their respective belts and forget it." This backfired and apparently created dissension among the rest of the sorters, for, 2 days later, the other girls on the crew com- plained to Schlagel about David re-sorting apples previously sorted by them. Schlagel, as he testified, promptly stopped the machinery and told the entire group that Respondent required harmony among the group because the quality of the work would otherwise suffer. He personally told David not to concern herself with the fruit sorted by the other sorters, to "sort only her own fruit ," and not to spend her time watching fruit come down the line. - A second incident took place about 3 days after the first . During the afternoon recess, the sorters congregated, in the absence of David, and complained to Schlagel. They asked "what did she [David] have against them that she was re-sorting" the fruit and claimed that David was attempting to create dissension among them , despite their best efforts. The following day Schlagel told David to "strictly pay attention to her own sorting and not those of the others" and "I reminded her everyone was to keep their own comments to themselves ." Both Enbom and Schlagel testified -that Schlagel reported these incidents to Enbom . It may be noted that Schlagel and his wife were on social terms with David and her husband? According to Enbom's uncontroverted testimony, three of the women who worked with David and Williams complained about them ; none of them testified herein. One was Sue Wetmore, a sorter on the Golden Delicious line and Enbom 's sister-in- law, who complained about the two women by name some weeks before the end of the apple season in February 1960. She stated that apples she had sorted were being removed at the other end and complained about remarks between the two women and the rest of the crew. About the same time, another coworker, Lucille Corliss, complained that working conditions in the packing room were affecting her nerves and, according to Enbom, the comments could have been applicable only to David and Williams. The third, Ethel Hooper, complained about resorting at the end of the packing line of apples she had previously sorted and her comments also could have been applicable only to David and Williams. During the summer , and shortly before the pear crew was hired, Schlagel went over the list of employees with his successor, Roberts, and told him of the trouble on the Golden Delicious line during the previous season involving David and Williams, but appears to have directed his remarks chiefly to the former. In August, according to Roberts, Enbom told him that David and Williams were responsible for prior discord on the apple line. Enbom testified similarly and added "that he told Roberts he would not be displeased if" he did not recall the two women for the pear season. Offsetting this is the fact that Respondent saw fit to employ David and Williams during the cherry season in the spring of 1960. There is, on the other hand, some evidence that the packing problem on the cherry line is less complicated than that of the Golden Delicious line and that high school students are used for the former.3 'David testified that Enbom and Schlagel had instructed her to sit at the end of the roller and remove fruit "that shouldn't be there" ; that Schalgel never suggested that she not re-sort fruit ; that she was not spoken to about making derogatory remarks about her coworkers ; and that she was not reprimanded . I credit the testimony of Schlagel which is corroborated by that of Enbom who, as he testified and I so find , personally observed this antagonism among the women after Schlagel informed him of the difficulty and specifically noted that David and Williams were holding themselves aloof and separate from the rest of the girls . He testified uncontrovertedly that he had once told Williams he hated to enter the Golden Delicious room because of this friction . This of course ties in with the specific related complaints by several girls to Enbom , described below. S Roberts admitted that he informed a representative of the General Counsel that be did not recall the two women because they had not indicated their availability to him While David testified that such an indication from the employee was unnecessary, Williams' testimony discloses that the women , at times , would take the initiative in con- tacting Respondent for work Roberts disputed that he had assigned this as the only reason, but, in any event, I do not deem this to be substantial enough to refute the other evidence herein. GEORGE F. JOSEPH ORCHARD SIDING INC. 981 (2) Lending support to Respondent 's contentions herein is the fact that in February 1960 Enbom suggested to Sue Wetmore , his sister-in-law, that she find employment elsewhere . As Enbom uncontrovertedly testified , he is more severe on his kinfolk than on others; he did not want Wetmore involved in squabbles in the plant; and since she had taken exception to the two women , he preferred that she leave Respond- ent's employ. This would indicate that he chose to eliminate a disruptive force from Respondent's employ despite the family relationship , and, although at an earlier date, treated her in essence as he did David. (3) As set forth above , there were two minor complaints involving Williams and David, with the former as spokesman, during the cherry season. These involved a request for payment for working time of one-half hour in excess of that actually worked, and a claim for the 4-hour call-in pay. In September 1960, Respondent allegedly decided not to rehire the two women. As noted, there is undisputed evidence that they had held themselves aloof from the other girls in the crew during the previous apple season and that David had been a source of friction . I deem it significant that David initially was treated no differ- ently than Williams who in no way was involved with any union activities . And for that matter, David was involved with no union activities , such • as they may have been, until at least 2 days after her interview with Enbom , set forth above. It is true that Enbom decided to reverse himself and rehire Williams, but this was unrelated to union or nonunion activities and is reasonably explained not only by her tenure with Respondent but with his long personal friendship with her and the economic difficulties with which she was faced . Moreover, she had much greater sen- iority than David and was due for recall sooner than David who was. 16th in seniority in contrast to Williams who was fifth or sixth. One cannot escape the impression that if Enbom were discriminatorily motivated herein he would have in all probability seized upon and explored the statements by David and Williams , on their versions of the crucial interview , that the true culprit in the union matter was in Respondent's employ and as yet undetected. Further evidence of Respondent's bona fides herein is the fact that, several weeks after David's interview with Enbom, set forth above, Enbom was asked by his brother-in-law, connected with another packing company, to refer prospective work- ers and he submitted David's name among others. If Enbom were discriminatorily motivated herein in not recalling David, it would hardly seem logical for him to include David's name on the list. There is some indication that Enbom's brother-in- law was being struck by a labor organization and this would demonstrate even more strongly that a discriminatorily motivated Enbom would not have referred David to the job. Finally, even if Williams and David were credited as to the conversation with Enbom in the plant, contrary to the credibility resolution heretofore made, the evidence would not preponderate in favor of the General Counsel 's position herein. David had not engaged in any union activities prior to Respondent 's refusal to rehire her and there is evidence suporting Respondent 's decision not to recall her for non- discriminatory reasons. In addition , the alleged remark about David going to the union is ambiguous in that it in no way is tied in with the instant factual picture, thus detracting from its weight. This is shown by the fact that, even on David's testimony, Enbom told her that he would know on the following Friday if she would be recalled, a position consistent both with her lower seniority as well as Respondent's position that it was reluctant to recall her for nondiscriminatory reasons, and David never pursued the matter with Respondent, despite Schlagel's statement on September 20 that she should do so. In view of all the foregoing considerations, including the absence of any union activity by the complainant at the time of the alleged discrimination , I am persuaded and find that the evidence does not preponderate in favor of the position of the General Counsel herein . I shall, accordingly, recommend that the complaint be dismissed. CONCLUSIONS OF LAW 1. The operations of Respondent George F. Joseph Orchard Siding Inc., affect commerce within the meaning of Section 2 (6) and (7) of the Act. 2. Respondent has not engaged in unfair labor practices within the meaning of Section 8 (a)(1) and (3) of the Act. [Recommendations omitted from publication.]