Mikami Brothers

522 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Mikami Brothers and Ben Rojas Idaho Potato Foods, Inc. and Local Union No. 983, International Brotherhood of Teamsters, Chauf- feurs, Warehousemen and Helpers of America. Inde- pendent and Idaho Potato Foods, Inc. Employees' Gripe Committee. Cases 19-CA-4657 and 19-CA- 4809 February 12, 1971 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS BROWN AND JENKINS On October 15, 1970, Trial Examiner Martin S. Bennett issued his Decision in the above-entitled con- solidated proceeding, finding that Respondents had engaged in and were engaging in certain unfair labor practices and recommending that they cease and de- sist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. Thereafter, Respondents filed exceptions, and a brief in support thereof, to the Decision. General Counsel has submitted a brief in support of the Decision. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its powers in connection with these cases to a three-member pan- el. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no preju- dicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions, the briefs, and the entire record in these cases, and hereby adopts the findings,' conclusions, and recommendations of the Trial Examiner. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Rela- tions Board adopts as its Order the Recommended Order of the Trial Examiner as modified below and hereby orders that Respondents, Mikami Brothers, Idaho Falls, Idaho, and Idaho Potato Foods, Inc., Idaho Falls, Idaho, their officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order, as so modified? 1. Insert the following as paragraph 2(b) of the Recommended Order directed to Respondent Mika- mi Brothers and reletter the subsequent paragraph accordingly: "(b) Notify immediately the above-named individ- ual, if presently serving in the Armed Forces of the United States, of the right to full reinstatement, upon application after discharge from the Armed Forces, in accordance with the Selective Service Act and the Universal Military Training and Service Act." 2. Insert the following as paragraph 2(b) of the Recommended Order directed to Respondent Idaho Potato Foods, Inc., and reletter the subsequent para- graphs accordingly: "(b) Notify immediately the above-named individ- ual, if presently serving in the Armed Forces of the United States, of the right to full reinstatement, upon application after discharge from the Armed Forces, in accordance with the Selective Service Act and the Universal Military Training and Service Act." 3. Substitute attached Appendix B for Trial Examiner's Appendix B. ' We hereby correct the Trial Examiner's occasional and inadvertent erro- neous reference to Respondent Idaho Potato Foods, Inc., Business Manager Franklin Adamson as "Anderson." 2 In footnote I I of the Trial Examiner's Decision, substitute "20" for "10" days. APPENDIX B NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT discourage membership in, or ac- tivity in behalf of, Local Union No. 983, Interna- tional Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Inde- pendent, or any other labor organization of our employees, by discriminating in regard to hire or tenure of employment or any term or condition thereof. WE WILL offer Irene Henderson immediate and full reinstatement to her former position or, if it no longer exists, to a substantially equivalent position without prejudice to her seniority or oth- er rights and privileges. WE WILL make whole Irene Henderson for any loss of pay suffered by reason of our discrimina- tion against her. WE WILL withdraw and withhold all recogni- tion from and completely disestablish Employ- ees' Gripe Committee or Idaho Potato Foods, Inc., Employees' Gripe Committee, or any suc- cessor thereto, as the representative of any of our employees for the purpose of dealing with respect to grievances, labor disputes, wages, rates of pay, 188 NLRB No. 78 MIKAMI BROTHERS hours of employment, or conditions of work. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their rights guaranteed under Section 7 of the Act. All our employees are free to become or remain, or refrain from becoming or remaining, members of a labor organization, except to the extent such right may be affected by an agreement requiring member- ship in a labor organization as a condition of employ- ment, as authorized by Section 8(a)(3) of the Act. IDAHO POTATO FOODS, INC. (Employer) Dated By (Representative) (Title) We will notify immediately the above-named individ- ual, if presently serving in the Armed Forces of the United States, of the right to full reinstatement, upon application after discharge from the Armed Forces, in accordance with the Selective Service Act and the Universal Military Training and Service Act. This is an official notice and must not be defaced by anyone. This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. Any questions concerning this notice or compli- ance with its provisions may be directed to the Board's Office, Republic Building, 10th Floor, 1511 Third Ave., Seattle, Washington 98101, Telephone 206-583-4532. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE MARTIN S. BENNETT, Trial Examiner: This matter was heard at Idaho Falls, Idaho , on August 11 and 12, 1970. The complaint, issued July 16 and based on charges filed Feb- ruary 6 and February 7, 1970, by Ben Rojas, an individual, in Case 19-CA-4657, and on May 27, 1970, in Case 19-CA- 4809, by Local Union No. 983, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Independent, herein the Union, alleges that Re- spondents, Mikami Brothers, a partnership, and Idaho Po- tato Foods, Inc., had engaged in unfair labor practices with- in the meaning of Section 8(a)(1),(2), and (33) of the Act. Briefs have been submitted by the parties . Upon the entire record in the case, and from my observation of the witness- es, I make the following: FINDINGS OF FACT 1. JURISDICTIONAL FINDINGS 523 Sach Makami, his brother Dan S. Mikami, and the wife of the former are a partnership located at Idaho Falls, Ida- ho, where they are engaged in the growing and nonretail marketing of potatoes from what is known as a fresh pack plant. The partnership annually sells and ships potatoes valued in excess of $50,000 directly to points outside the State of Idaho. Idaho Potato Foods, Inc., herein IPF, is an Idaho corpo ration owned by the same three individuals . It is engaged at an adjacent location in Idaho Falls , Idaho, in the processing of potatoes and annually sells and ships potato products valued in excess of $50,000 directly to points outside the State of Idaho. The partnership owns approximatel 2700 acres of farmland on which it grows potatoes as welly as the fresh pack plant, and IPF owns only its plant site. From 25 to 30 percent of the potatoes processed by IPF are pur- chased from the partnership. Respondents contend that the employees of the fresh pack plant are agricultural laborers and therefore not em- ployees under Section 2(3) of the Act. The fresh pack plant is located on nonfarmland. Potatoes are received from the fields, cleaned, sorted, sacked, and shipped. Storage facih- ties at this plant accommodate only about 1-1/2 days work of shipments. This operation would appear to be carried on by employ- ees exempt from the definition of employees in that they are subordinate to the farming operation, but for one factor. On occasion, the partnership is asked by a customer for a type of potato which it does not have in its fields. The partner- ship then purchases the requested merchandise from other farmers and ships them from its fresh pack plant to the customer. For the last several years, 18 to 20 percent of its potatoes were so purchased and sold. Such purchases in 1969 amounted to $184,412 out of total sales and shipments in excess of $1,000,000. Sach Mikami also testified that, in the calendar year 1969, 10 percent of his pack came from other farmers, although in the fresh pack shipping season from October 1969 through June of 1970 he adhered to the 18-20 percent ratio. As stated, but for the outside purchases fresh pack em- ployees would appear not to be protected here. D'Arrigo Bros. Co. of California, 171 NLRB No. 5. But these purchas- es change the picture. In Bodine Produce Co., 147 NLRB 832, the Board noted that "an important determining factor is whether the employer confines its packing operations to its own produce ....' That being the case, the Board found that employees of a melon packing shed were agricultural laborers. In The Garin Company case, 148 NLRB 1499, a picture similar to the present case is depicted. The Board held that employees of an asparagus packing shed were not agri- cultural laborers and stressed that approximately 15 percent of the crops shipped were packed for another grower. And, in reality, to the extent Respondent purchases potatoes from other sources, manifestly more than de minimis purchases, it is acting as a jobber or wholesaler and not as a farmer. Respondent points to Section 780.108 of Department of Labor Interpretative Bulletin, 29 CFR Part 780. That sec- tion presents the concept that the type of work done in the particular workweek is the criterion. Respondent contends that since only a small percentage of potatoes processed in 524 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the week of the discharge ' stems from another source, the agricultural exemption applies. The Board has never, so far as I am aware, embraced the workweek concept . It is readily apparent that reliance on it in a refusal to bargain situation, not presented herein, with bargaining meetings in successive weeks would be akin to tangling with a can of worms. The picture would be one of fluctuating coverage from week to week. Consider also a strike situation. Would the status of the strikers be resolved by the work they did on the eve of the strike, by that done by replacements during the strike , or by other approaches? Consider also a case of alleged illegal assistance to a labor organization with conduct extending over a period of weeks or months. Which week would be the decisive one? More basically, the two statutes have different objectives. The Fair Labor Standards Act is concerned with the prob- lem whether an employee is entitled to wage protection in a given week. The National Labor Relations Act is con- cerned with conduct which over the long term may create a labor dispute affecting commerce . Indeed, under the Na- tional Labor Relations Act, jurisdiction may be asserted over a new establishment by projecting short term volume of business to obtain the annual picture , ignoring weeks as such. Hence, in my view, the workweek is not and should not be the criterion herein. I find that the respective operations of the partnership and IPF affect commerce within the meaning of Section 2(6) and (7) of the Act and, further, that Ben Re as was not an agricultural laborer within the meaning of Section 2(3) of the Act at the time material herein. II THE LABOR ORGANIZATIONS INVOLVED Local Union No. 983, International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, Independent and Employees' Gripe Committee are labor organizations within the meaning of Section 2(5) of the Act.2 III THE UNFAIR LABOR PRACTICES A. Introduction; The Issues Business Representative Eugene Neff of the Umon, as he testified, commenced the organization of both previously unorganized companies early in January 1970. At the fresh pack operation, he was assisted by Ben Rojas and at IPF by Employees Irene Henderson and Jo Ann-Fife; the latter is his sister. Rojas was discharged on January 27 and Henderson on January 28. Pay increases at IPF were announced on Janu- ary 29 and on the latter date an employees' committee was set up at IPF to bargain with IPF concerning conditions of employment. Litigated herein are the issues whether the two discharges were discriminatory, whether the wage increases were so timed as to be violative of Section 7, and whether Respondent IPF sponsored , dominated, and assisted a la- bor organization; namely the "Employees' Gripe Commit- tee." As is apparent, all the attacked activity took place at both plants over a period of several days. B. The Discharge of Ben Rojas Rojas entered the employ of the partnership in December ' The workweek ending January 31, 1970, during which Ben Rojas, a fresh pack plant employee, was discharged on January 27, allegedly in violation of Section 8(a)(3) of the Act, the merits of this are treated below 2 The genesis, establishment, and functioning of the latter are described in a later section of this Decision. of 1969 and worked at various jobs in the fresh pack opera- tion until he was discharged a proximately 2 months later on the afternoon of January 27, 1970. His jobs included the packaging of potatoes and loading of railroad boxcars. Al- though Respondent contends that he was initially hired as a grader and, because of inexperience, was transferred to other tasks within the hour, the fact is that he worked at those other operations for 2 months and, in any event, Respondent's defense is predicated on other grounds. About I to 1-1/2 weeks before his discharge, Organizer Neff contacted Rojas. He told Rojas that he was organizing the adjacent IPF plant and enlisted his support in sounding out the fresh pack employees on the topic of organization. Rojas proceeded to contact his 10 to 12 coworkers. He personally signed a card and obtained two signed cards from coworkers on January 22. A union meeting was sched- uled for January 27 and 4 or 5 days prior thereto Rojas duly advised his coworkers thereof. Respondent has contended that the employment history of Rojas was marked by chronic tardiness and absenteeism. The General Counsel, in his brief, does not contest this. The record demonstrates that Rojas raced snowmobiles as a hobby. This activity every weekend conflicted with a work schedule requiring 1/2 day of work on Saturdays. Rojas contended that he asked for Saturdays off on these occa- sions and that permission was granted. The record is not entirel clear whether the crew worked every Saturday, but it discloses that Rojas was absent on the Saturdays of Janu- ary 10 and 24. According to Foreman Harold Cramer, Ro- jas was absent frequently and requested and received permission to be off on but one occasion, about 2 weeks before his termination. It is undenied that he was absent or reported quite late on a number of Mondays after these weekends because of injuries received in his avocation . He contended, and Re- spondent disputes, that the wife of Rojas telephoned and duly advised Respondent thereof on these occasions. It is clear that Ro as was guilty of repeated tardiness, but he insisted that is was also true of his coworkers. At first blush it is readily apparent that there is support for Respondent's claim that Rojas was discharged for his tardiness and absenteeism. But a number of factors , includ- ing the accompanying activity at the adjacent plant, strong- ly support the General Counsel. Rojas testified that Cramer asked him on the afternoon of January 27 what type of talk was current about the Union . Cramer stated that he had heard the Union was carrying on organizational activities and that Rojas was discussing the topic and inquired what Rojas was doing. Ro as replied that Organizer Neff had asked him to explain the benefits of organization to the men. Cramer responded that the Union was "no good" and that he was laying Rojas off "because we got to stop it before it gets started." Cramer decreed that the fresh pack plant would not be organized. Rojas complained that other employers would consider him an unsatisfactory worker and Cramer offered to give him any reference he needed. Cramer repeated that he would "have to let you go" because organization was to be stopped before it started. He assured Rojas that "After this gets over with and blows over ... I'll put you back to work again." According to Rojas, he found another job opportunity, and telephoned Cramer for a ref- erence about 2 weeks later . Cramer refused, stating that he did not dare give Rojas a reference because he did not know him well enough.3 Cramer, whose testimony was not impressive, testified that he decided on January 27 to discharge Rojas because 3 Cramer admitted that such a call had been made, but was not asked about the details of the conversation. MIKAMI BROTHERS 525 of his chronic tardiness and absenteeism . While Rojas had C. The Discharge of Irene Henderson been tardy approximately 10 times, Cramer had allegedly warned him but once, after the third or fourth occasion. Irene Henderson entered the employ of IPF late in Octo- Sach Mikami testified most generally that on a couple of ber of 1969 and was discharged on January 28, 1970, one occasions Cramer spoke to him about the absenteeism and day after Rojas was discharged at the fresh pack plant. Her tardiness of Rojas. tha Mikami asked if Rojas needed work and competency is not challenged. She worked as a trimmer on Cramer repliedlt he did; they decided to let the matter the day shift from 6 a.m. until 2 p.m., and Mary Hoffman ride. He later testified that, on the one or two occasions they was her leadlady! discussed Rojas, Mikami asked if Rojas had other problems Henderson, a former member of the Union, uncontro- and Cramer responded that he did. vertedly testified, and I find, that several of her coworkers Cramer also testified that this decision to discharge Rojas asked her about the Union. Henderson telephoned Neff on was predicated on his absenteeism and tardiness and that it January 15 and apparently offered her services. Neff in- stemmed from a talk with Mikami a couple of weeks earlier structed her to ascertain how many employees there were about the problem. Mikami allegedly then said that if this and, on or about January 22, she advised Neff of her find- continued it would be necessary to terminate Rojas. As ings. noted, Mikami's version was noticeably less stringent and Henderson signed a card on January 27, in the presence reflects only awareness of the problem rather than a deci- of Neff, who instructed her to ascertain the views of the sion to discharge an employee. employees on union organization and gave her some blank Cramer's version of the terminal conversation with Rojas, authorization cards. A union meeting was scheduled for the under cross-examination, leaves much to be desired. He was afternoon of January 27 and, at Neff's request, Henderson asked what was said about unions and replied that Rojas so advised as many girls as she could contact. said, "He'd like to get his truck in the Union." He was Henderson was at the plant at 5:30 a.m. on January 28, unable to amplify this. Cramer did not recall any discussion prior to the start of her shift at 6 a.m. Between 5:30 and 5:55 about organization of the employees. Cramer was again a.m. she obtained the signatures of four girls to authoriza- asked what was said about the Union and replied that Rojas tion cards. Henderson and Leadlady Mary Hoffman were said he had a truck "he needed to get into the Union in order seated at opposite ends of a short table in the cafeteria or to get it working." Elaboration on this was again not forth- lunchroom when Henderson carried out this activity. Four coming from Cramer. He did not recall telling Rojas that girls, two of whom she named, asked Henderson if she had Res ondent did not need a Union. authorization cards. Henderson produced them, the girls Cramer was asked if, after the discharge, he had told a signed, and Henderson witnessed the signatures. named agricultural inspector that one of the reasons why At 9 a.m., Production Manager Richard Tanner told Rojas was terminated was his efforts to bring the Union into Henderson, according to the latter, that her paycheck had the plant. Cramer could only reply that he did not recall been garnished by the Internal Revenue Service for the such a statement. As the General Counsel points out, the second time and that she was automatically dischargged. allegation of such an admission would call for a blanket This was indeed a second garnishment and Res ondent eias denial had the discharge been solely for cause. This is sup- a published plant rule that reads: "Repeatedpdeductions ported by the fact that Rojas did call Cramer for a reference from pay to satisfy garnishment or other court orders will 2 weeks later. This act is more consistent with conduct by not be tolerated." The record discloses that at the time of one not told that he was being discharged for specified the first garnishment Henderson refused to endorse the causes of absenteeism and tardiness. check to the government but did so on the following day. One other item is relied on by the General Counsel. Felix Tanner testified that on January 27 his superior, Business Merino is currently in the employ of the fresh pack plant, Manager Franklin Anderson advised him that Henderson's primarily drives a truck and has some duties in the ware- wages had been attached or garnished more than once and house. He knows Rojas and testified that the latter has a "we had to let her go." The decision was that of Anderson. nickname of Fats. He was asked herein if this was company policy and Tanner Merino testified that he noted the absence of Roj as on the pleaded ignorance, avering that this was a front office deci- afternoon of his discharge and asked Cramer where Fats sion. was. Cramer replied that Rojas had been attempting to After testifying that he understood company policy to be introduce a union into the plant. Merino also testified that that repeated garnishments could result in discharge, he was a former unnamed employee who worked in the cellar, un- then asked if he knew of any policy that two garnishments like Rojas, also enjoyed the same nickname , but added that he would specify which one he referred to in addressin$ 4 The General Counsel contends, and r find, that leadladies are supervisors Cramer. Cramer admitted that Rojas was a stocky and hus- with authority to make effective recommendations on personnel action. ky man, as is the fact, but denied that he knew an employee Hoffman did not testify, but Leadlady Helen McFee, on the 10 p.m. to 6 a.m. byy the specified nickname. As for any conversation with graveyard shift, uncontrovertedly testified, and I find, that there were 15 to Merino about Rojas, he simply did not recall any. Merino, 20 trimmers on the shift, that she works with them 75 percent of the time, still in Respondent's employ, testified under subpena and I and that 25 percent of the time she checks test results. There is a leadlady credit his testimony herein . I likewise credit the testimony on each of the shifts and there are one or two relief ladies who fill in on their of RO^.aS. days off. McFee is the only leadlady on the night shift and it would seem that there is a leadlady and a foreman on each shift. She is responsible for In view of all the foregoing considerations, and noting the instructing new employees and gives them I or 2 weeks to learn the routine. contemporary action in the IPF plant next door, described If a girl does not respond, she recommends to the foreman that the girl be below, I find that a preponderance of the evidence supports discharged. This happened three times in the past year. She receives 10 cents the position of the General Counsel herein. I further find more per hour than the other girls on the shift. Most of the time, when a girl that the discharge of Rojas was violative of Section 8(a)(3) calls in ill or wants time off, the girl will contact McFee . McFec was authonz- and (1) of the Act. ed to send a girl home if necessary and would then report her action to the (Continued) 526 DECISIONS OF NATIONAL LABOR RELATIONS BOARD constituted cause for discharge ; he replied in the negative. Anderson identified the first levy which bore the date of January 13, 1970, and claimed that it was received m the mail a day or so later. The second was dated January 27 and Anderson contended that he received this that same af- ternoon.5 As a result, on the evening of January 27, Ander- son advised Tanner of the second levy and decreed "we had better discharge her." The record discloses that no other employee has ever been discharged for such levies. There have been several over the past year. The General Counsel has drawn attention to the case of Employee Clifford Ellis who suffered two such levies on his wages in November and December 1969 but who was given no discipline. Respondent attempted to distinguish this on what I deem an untenable ground. Ellis allegedly spoke to Anderson and advised him that the Internal Revenue Serv- ice garnishment was pending. He offered to borrow the money but Anderson advised that under the circumstances where he had approached Respondent and where he would endorse the check there would be no problem. Anderson allegedly told Ellis that "repeated garnishments" were against company policy "and to try to keep from having any other garnishment issued ... Initially, the thought occurs that the statement to Ellis was a warning to avoid a third garnishment and did not rise to the stature of a warning of discharge. The fact is that not only did Ellis have two garnishments, the second but 1 month before the two suffered by Henderson, but Respon- dent chose to proceed in this manner and cope with the garnishments rather than have Ellis borrow the money. While its solicitude for Ellis might in other circumstances be commendable, this does not stand up when viewed against its disparate treatment of Henderson. In sum, Henderson was active in the Union . She signed up four employees in the presence of Leadlady Hoffman, a supervisor, and was discharged 3 hours later. Respondent's reason for the discharge does not withstand scrutiny when compared with its much laxer treatment of an equal offend- er and, indeed, its relatively diffident view of the Ellis case. I find on a preponderance of the evidence, that by dis- charging Irene Henderson on January 28, 1970, Respondent IPF has engaged in unfair labor practices within the meaning of Section 8(a)(3) and (1) of the Act.6 D. Employees' Gripe Committee and the Payraise Contemporaneously with the discriminatory discharges on January 27 and January 28 at the two plants, the follow- ing took place. Leadlady Helen McFee, as she testified, was contacted by Leadlady Mary Hoffman of the day shift who proposed that they and the third leadlady, Horn, visit Bus- iness Manager Franklin (Bud) Adamson about a pay raise. Hoffman also suggested that each leadlady bring along a rank-and-file employee from her shift. These six met with Adamson on January 29 and discussed a pay raise; also present was Verna Carpenter, the corpora- tion secretary? Hoffman requested a pay raise and Ad- amson proposed a 10-cent raise as well as the possibility of foreman. This does happen frequently If a girl wants time off, she will generally contact Verna Carpenter, the corporation secretary, but some of the time it is McFee who can authorize this . There is no contention made that the authority of the leadladies vanes among the respective shifts. 6 He later testified that Respondent receives its mail at a post office box in the morning or the afternoon but generally the latter . This alleged speed up in the mail delivery arouses one's suspicion if not admiration, but no inference adverse to Respondent is derived therefrom herein 6 This conclusion would be unchanged even if it were found that Hoffman was merely a conduit to management and not a supervisor a bonus. They then discussed whether it would be desirable to have a gripe committee which would meet monthly. Ad- amson readily agreed to this prospect, stating that if he was aware of the problems he could work things out .8 All present including Adamson agreed that a committee would be elected with two. is from each shift and that it would discuss working conditions with management. At the end of the meeting, according to Irma Jones who had been brought along as a rank-and-file employee, either Hoffman or Adamson instructed her to relay the results of the meet- ing to the other employees . According to Fife, Jones in- formed her that Adamson had asked Jones to duly advise the girls. Balloting took place in the plant during a break and offman was one of the voters. Fife, as she testified, was one of those elected to the committee. She was apprised of the next meeting on Feb- ruary 25 by Corporation Secretary Carpenter who told her that she would be paid for her attendance . Fife did attend the meeting and was paid 2 hours' pay. The inference is warranted that the other attendees were so paid . Adamson and Carpenter were present on this occasion . Complaints had been solicited from rank-and-file employees and these were the principal topics of discussion. Adamson suggested that they choose one of the girls to preside. This was not done because, according to Fife, "We just felt like Bud (Adamson) should conduct the meeting. ' Meetings were held in March and April and were sus- pended during the summer layoff . A suggestion box was placed in the company lunchroom, and IPF'-furnished a lock for the box with the key retained in the plant office. There is some uncertainty among the witnesses as to the precise name of th e committee but it was either "Employees Gripe Committee" or "Idaho Potato Foods, Inc. Employees' Gripe Committee." There is no evidence that dues were charged. The record also discloses no evidence that the committee ever insisted on a demand at a meeting. As for the wage increases, Adamson testified that a group of employees approached him for a raise . The record also discloses that Leadlady Hoffman had canvassed the girls about a raise on January 28 and announced that there would be one. Then, on January 29 , Respondent posted on the bulletin board a notice giving a 10-cent raise to trimmers and a 15-cent raise to packagers effective February 2, the commencement of the next pay period. Respondent did present some testimony of a most general nature to the effect that a pay raise had been contemplated for some time. As noted, Leadlady Mary Hoffman rapidly canvassed the employees on January 28. She asked whether packaging was more strenuous than trimming and told the girls there would be a raise for packagers . She then arranged for the other leadladies and rank-and-file employees to visit Adamson on January 29 and request raises. These were promptly awarded to both packagers and trimmers. This was the same meeting at which Adamson sat in , discussed the formation of an employee committee, and agreed on its coinpostions. Adamson testified that during the processing year he had discussed with the owners what wage scales IPF could pay. IPF sells its products on a bid basis and must know wage costs prior to submitting a bid . Be that as it may, it is obvious that these were discussions most general in nature with nothing done until the Hoffman entourage approached 7 Neither Hoffman nor Carpenter testified herein. The record does not divulge Carpenter's precise status and it may be that her title refers solely to an office clerical rather than a corporate officer. In any event , I do not find that she had a supervisory role. 6 McFee was uncertain whether the group or Adamson suggested the formation of the committee. MIKAMI BROTHERS Adamson for a meeting just before January 29. Adamson also testified that as early as November or December of the previous year there had been management discussions about a wage increase but admitted they agreed that their contract prices did not permit this. Indeed, IPF so advised the employees at the time. As demonstrated, Respondents were aware of the union activities at both plants on January 27 and 28. Stated otherwise, the issue changed drastically and rapidly when the union organizational campaign commenced and a supervisory leadlady proposed the raises. While the evidence is not the strangest, it preponderates in favor of the General Counsel. When union activities started, Respondent discharged a leading union proponent in each of the two plants on January 27 and 29. Simulta- neously, a leadlady commenced a campaign for wage in- creases which were immediately granted. While the contract bid problem allegedly forbade such raises earlier there is no showing that the situation had changed. In the posture most favorable to Respondents, wage increases had been a dor- mant issue for some time and none had been promised. Hoffman's actions produced a different result. See N.L.R.B. v. Exchange Parts Co., 375 U.S. 405. At the same time, with management participation, the committee, a labor organization, was set up. Top manage- ment participated in the decision as to its composition and indeed presided over joint meetings thereafter and also ad- vised how its membership should be chosen. I find that the granting of the wage increases by Respondent IPF was violative of Section 8(a)(1) of the Act. I also find that Re- spondent IPF has dominated and interfered with the forma- tion and administration of a labor organization within the meaning of Section 8(aX2) and (1) of the Act.FTS Corp., 184 NLRB No. 91; Tuscarora Plastics Co., 167 NLRB 1059; and Grand Foundries Inc., 151 NLRB 1170.9 IV. THE REMEDY Having found that Respondents have engaged in unfair labor practices, I shall recommend that they cease and de- sist therefrom and take certain affirmative action designed to effectuate the policies of the Act. It has beer! found that Mikami Brothers discharged Ben Rojas on January 27 and that Idaho Potato Foods, Inc., discharged Irene Henderson on January 28, 1970, because of their union and protected concerted activities. I shall therefore recommend that Respondents respectively offer them immediate and full reinstatement to their former jobs or, if these jobs no longer exist, to substantially equivalent positions, without prejudice to their seniority or other rights or privileges. See the Chase National Bank o^'the City of New York, San Juan, Puerto Rico Branch, 65 NLRB 82. I shall further recommend that Respondents respectively make them whole for any loss of earnings they ma have suffered as a result of their discharge, by payment ofya sum of money equal to that each normally would have earned from said date to the date of Respondents' offers of rein- statement, less net earnings during such period, with back- ,pay and interest thereon computed in the manner pre- scribed by the Board in F. W. Woolworth, 90 NLRB 289, and Isis Plumbing Co., 138 NLRB 716. I shall further recommend that Respondent Idaho Potato Foods, Inc., withdraw and withholdpall recognition from and completely disestablish the "Employees' Gripe Com- mittee" or the `Idaho Potato Foods, Inc. Employees' Gripe 9 Counsel for Respondents announced at the outset of the hearing that they were also representing the Gripe Committee I do not, in the findings above, assign any weight to the fact of joint representation 527 Committee," or any successor thereto, as the representative of any of its employees for the purpose of dealing in griev- ances, labor disputes, wages, rates of pay, hours of employ- ment, or conditions of work ; provided that nothing herein is intended to require that Respondent Idaho Potato Foods, Inc., vary or abandon any wage raises it has granted or alter any wage, hour, seniority, or other substantive features of its relationship with its employees established while bar- gaming with said committee. On the basis of the foregoing findings of fact , and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. Mikami Brothers and Idaho Potato Foods, Inc., are employers within the meaning of Section 2(2) of the Act. Local Union No. 983, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Independent; Employees' Gripe Committee; and Idaho Potato Foods, Inc. Employees' Gripe Committee are labor organizations within the meaning of Section 2(5) of the Act. 3. By discharging Ben Rojas on January 27, 1970, Mikami Brothers has engaged in unfair labor practices within the meaning of Section 8(aX3) and, derivatively, Section 8(a)(l) of the Act. 4. By discharging Irene Henderson on January 28, 1970, Idaho Potato Foods, Inc., has engaged in unfair labor prac- tices within the meaning of Section 8(a)(3) and, derivatively, Section 8(a)(l) of the Act. 5. By dominating and interfering with the formation and administration of Employees' Gripe Committee or Idaho Potato Foods, Inc. Employees' Gripe Committee, Respon- dent, Idaho Foods, Inc., has engaged in unfair labor prac- tices within the meaning of Section 8(aX2) of the Act. 6. By granting its employees economic benefits at a time when a labor organization was seeking to represent them, Respondent, Idaho Potato Foods, Inc., has engaged in un- fair labor practices within the meaning of Section 8(a)(1) of the Act. 7. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and con- clusions of law, it is recommended that: A. Respondent, Mikami Brothers, Idaho Falls, Idaho, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discouraging membership in Local Union No. 983, International Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America, Independent, or any other labor organization of its employees, by discriminating in regard to hire or tenure of employment or any term or condition thereof. (b) In any other manner interfering with, restraining, or coercing its employees in the exercise of the rights guaran- teed under Section 7 of the Act. 2. Take the following affirmative action which is deemed necessary to effectuate the policies of the act: (a) Offer to Ben Rojas immediate and full reinstatement to his former job or, if this job no longer exists, to a substan- tially equivalent position, without prejudice to his seniority or other rights and privileges. (b) Make Ben Rojas whole for any loss of pay and bene- fits he may have suffered as a result of his discharge in the 528 DECISIONS OF NATIONAL LABOR RELATIONS BOARD manner set forth in the preceding section entitled "The Remedy." B. Respondent, Idaho Potato Foods, Inc., Idaho Falls, Idaho, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discouraging membership in or activity in behalf of Local Union No. 983, International Brotherhood of Team- sters, Chauffeurs, Warehousemen and Helpers of America, Independent, or any other labor organization of its employ- ees, by discriminating in regard to hire or tenure of employ- ment, or any term of condition thereof. (b) Interfering with, restraining, or coercing its employees in the exercise of the rights guaranteed under Section 7 of the Act by granting them economic benefits at a time when a labor organization is seeking to organize them. (c) Dominating or interfering with the formation and administration of f mployees' Gripe Committee or Idaho Potato Foods, Inc. Em to ees' Gripe Committee, or any y ther labor organization of its employees, or contributing financial or other support thereto. (d) In any other manner interfering with, restraining, or coercing its employees in the exercise of the rights guaran- teed under Section 7 of the Act. 2. Take the following affirmative action which is deemed necessary to effectuate the policies of the Act: (a) Offer to Irene Henderson immediate and full re- instatement to her former job or, if this job no longer exists, to a substantially equivalent position, without prejudice to her seniority or other rights and privileges. (b) Make whole Irene Henderson for any loss of pay and benefits she may have suffered as a result of her discharge, in the manner set forth above in the preceding section enti- tled "The Remedy." (c) Withdraw and withhold all recognition from and com- pletely disestablish Employees' Gripe Committee or Idaho Potato Foods, Inc. Employees' Gripe Committee, or any successor thereto, as the representative of any of its employ- ees for the purpose of dealing with respect to grievances, labor disputes, wages, rates of pay, hours of employment, or conditions of work. C. Respondents, Mikami Brothers and Idaho Potato Foods, Inc., Idaho Falls, Idaho, their officers, agents, suc- cessors, and assigns, shall respectively take the following affirmative action; 1. Preserve and make available to the National Labor Relations Board and its agents, upon request, for examina- tion and copying, all payroll records, social security pay- ment records, timecards, personnel records, and reports, and all other records necessary to determine the amounts of backpay due under the terms of this Recommended Order. 2. Post at their respective offices copies of the applicable notices attached hereto which are respectively marked Ap- pendix A and B.10 Copies of said notices, on forms provided by the Regional Director for Region 19, after being duly signed by each Respondent, shall be posted by them imme- diately upon receipt thereof and maintained for a period of 60 consecutive days thereafter in conspicuous places, in- cluding all places where notices to their employees are cus- tomarily posted. Reasonable steps shall be taken by Respondents to insure that said notices are not altered, defaced, or covered by any other material. 10 In the event no exceptions are filed as provided by Section 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, recommendations , and Recommended Order herein shall, as provided in Section 102.48 of the Rules and Regulations , be adopted by the Board and become its findings , conclusions, and order, and all objections 3. Notify the Regional Director for Region 19, in writing, from the date of receipt of this decision what steps they have taken to comply herewith.] i thereto shall be deemel waived for all purposes . In the event the Board's Order is enforced by a judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Rela- tions Board" shall be changed to read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." 11 In the event this Recommended Order is adopted by the Board, this provision shall be modified to read: "Notify the Regional Director for Re- gion 19, in writing, within 10 days from the date of this Order, what steps it has taken to comply herewith." APPENDIX A NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT discourage membership in, or activity in behalf of Local Union No. 953, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Independent, or any other labor organization of our employees, by discriminating in regard to hire or tenure of employment or any term or condition thereof. WE WILL offer Ben Rojas immediate and full re- instatement to his former position, or if it no longer exists, to a substantially equivalent position without pre udice to his seniority or other rights and privileges. E WILL make whole Ben Rojas for any loss of pay suffered by reason of our discrimination against him. WE WILL NOT in any other manner interfere with, restrain or coerce our employees in the exercise of their rights guaranteed under Section 7 of the Act. All our employees are free to become or remain, or refrain from becoming or remaining, members of the above-named or any other labor organization , except to the extent such right may be affected by an agreement requiringg membership in a labor organization as a condition of employment, as authorized by Section 8(aX3) of the Act. MIKAMI BROTHERS (Employer) Dated By (Representative) (Title) Note: We will notify the above-named employee if presently serving in the Armed Forces of the United States of his right to full reinstatement upon application in accordance with the Selective Service Act and the Universal Military Training and Service Act, as amended, after discharge from the Armed Forces. This is an official notice and must not be defaced by anyone. This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. Any questions concerning this notice or compliance with its provisions, may be directed to the Board's Office, 1511 Third Ave., Seattle. Washington 98101, Telephone 583-4532. MIKAMI BROTHERS 529 APPENDIX B NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WIj.L NOT discourage membership in, or activity in behalf of Local Union No. 993, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Independent, or any other labor organization of our employees, by discriminating in regard to - hire or tenure of employment or any term or condition thereof. WE WILL offer Irene Henderson immediate and full reinstatement to her former position, or if it no longer exists, to a substantially equivalent position without prejudice to her seniority or other rights and privileges. WE WILL make whole Irene Henderson for any loss of Kay suffered by reason of our discrimination against her. WE WILL withdraw and withhold all recognition from and completely disestablish Employees' Gripe Committee or Idaho Potato Foods , Inc., Employees' Gripe Committee, or any successor thereto, as the re resentative of any of our employees for the purpose ofdealing with respect to grievances, labor disputes, wages, rates of pay, hours of employment, or conditions of work. WE WILL NOT in any other manner interfere with, restrain or coerce our employees in the exercise of their rights guaranteed under Section 7 of the Act. All our employees are free to become or remain, or refrain frqm becoming or remaining , members of a labor organization, except to the extent such right may be affected by an agreement requiring membership in a labor organization as a condition of employment, as authorized by Section 8(a)(3) of the Act. IDAHO POTATO FOODS, INC. (Employer) Dated By (Representative) (Title) This is an official notice and must not be defaced by anyone. This notice must remain posted for 60 consecutive days from the date of posting and must not be altered , defaced, or covered by any other material. Any questions concerning this notice or compliance with its provisions, may be directed to the Board's Office, 1511 Third Ave., Seattle, Washington 98101, Telephone 583-4532.