Washington Dehydrated Food Company, a Corporation

In the Matter Of WASHINGTON DEHYDRATED FOOD COMPANY , A CORPO- RATION and UNITED CANNERY, AGRICULTURAL, PACKING AND ALLIED WORKERS OF AMERICA, YAKIMA VALLEY, LOCAL No. 1 Case No. C-882.-Decided August 14, 1939 Fruit Processing Industry-Interference, Restraint, and Coercion-Discrimi- nation: discharges for union activity-Reinstatement Ordered: discharged em- ployees, on resumption of the plant 's operations-Back Pay: awarded. Mr. Patrick A. Walker and Mr. William A. Babcock, Jr., for the Board. Clark C6 Grady, by Mr. Thomas E. Grady, of Yakima, Washington, for the respondent. Mr. Richard Salant, of counsel to the Board. DECISION AND ORDER STATEMENT OF THE CASE Upon charges duly filed by United Cannery, Agricultural, Packing and Allied Workers of America, Yakima Valley, Local No. 1, herein called the Union, the National Labor Relations Board, herein called the Board, by Charles Hope, Regional Director for the Nineteenth Region (Seattle, Washington), issued its complaint dated January 28, 1938, against Washington Dehydrated Food Company, a corporation, Yakima, Washington, herein called the respondent, alleging that the respondent had engaged in and was engaging in unfair labor practices affecting commerce, within the meaning of Section 8 (1) and (3) and Section 2 (6) and (7) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. The complaint and accompanying notice of hearing were duly served upon the respondent and upon the Union. On February 5, 1938, the respondent filed an answer to the complaint, denying the unfair labor practices charged. On February 17, 1938, the Regional Director issued an order post- poning the hearing. Thereafter, pursuant to notice, a hearing was held at Yakima, Washington, on February 23, 24, and 25, 1938, before Charles A. Wood, the Trial Examiner duly designated by the Board. 14 N. L. R. B., No. 41. 522 WASHINGTON DEHYDRATED FOOD COMPANY 523 The Board and the respondent were' represented by counsel and par- ticipated in the hearing.* Full opportunity to be heard, to examine and cross-examine witnesses , and'to introduce evidence bearing upon the issues was afforded all parties . Numerous motions and objections to the admission of evidence were made and ruled upon at the hearing. The Board has reviewed the rulings of the Trial Examiner upon motions and objections to the admission of evidence made at the hearing ^ and finds that no prejudicial . errors were committed. The rulings are hereby affirmed. After the hearing, the respondent filed a brief with the Trial Examiner ; thereafter counsel for the Board filed a reply brief. On September 17, 1938, the Board, acting pursuant to Article II, Section 37 (a), of National Labor Relations Board Rules and Regu- lations-Series 1, as amended, ordered that the proceeding be trans- ferred to and continued before it and, pursuant to Article II, Section 38 (d), of said Rules and Regulations, further ordered that Proposed Findings of Fact, Proposed Conclusions of Law , and a Proposed Order be issued , granted the parties the right, within ten (10) days from the receipt of said Proposed Findings of Fact, Proposed Con- clusions of Law, and Proposed Order to file exceptions, to request oral argument before the Board, and to request permission to file a brief with the Board. On May 5, 1939 , the Board issued Proposed Findings of Fact, Pro- posed Conclusions of Law, and a Proposed Order in the case, wherein it found that the respondent had engaged in and was engaging in unfair labor practices affecting commerce , within the meaning of Section 8 ( 1) and (3) and Section 2 (6) and (7) of the Act, and ordered the respondent to cease and desist from such unfair labor practices and to take certain affirmative action to effectuate the policies of the Act. Thereafter, the respondent filed exceptions to the Pro- posed Findings of Fact, Proposed Conclusions of Law, and Proposed Order, and also requested permission to file a brief. On May 20, 1.939, permission to file a brief was granted, and thereafter , the re- spondent filed its brief. The Board has considered the brief and the exceptions to the Proposed Findings of Fact, Proposed Conclu- sions of Law, and Proposed Order, and , in so far as the exceptions are inconsistent with the Findings of Fact, Conclusions of Law, and Order below set forth, finds them to be without merit. Upon the entire record in the case, the Board makes the following : FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT The respondent is a Washington corporation with its principal place of business at Yakima, Washington, and branches at Wenatchee, 524 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Cashmere, Grandview, and Manson , all in Washington . The respond- ent is engaged in buying, processing, dehydrating, packing, selling, and distributing apples and other fruits . The plant at Yakima, which alone is here involved, is the respondent's central plant. It is the only one of the respondent 's plants from which shipping is done, and is one of the largest dehydrating plants in the industry. The respondent obtains its raw materials , such as apples , and sul- phur from points within the State of Washington. It ships between 75 and 100 carloads of finished products each season ; they are sent "pretty much over the United States and Europe." Only two or three of these carloads are shipped each season to points within the State of Washington. The respondent has its own railroad siding and ships its products by means of the No Pacific and Union Pacific railroads. The respondent admitted that "the business is engaged in interstate commerce." The respondent's operations are seasonal , usually lasting from September to December or February . At the peak of the season, it has from 150 to 200 employees. H. THE LABOR ORGANIZATION INVOLVED United Cannery , Agricultural , Packing and Allied Workers of America, Yakima Valley, Local No. 1, is a labor organization affili- ated with the Committee for Industrial Organization . It admits to membership agricultural, cannery, dried fruit, and allied workers, and fish, fruit, and vegetable processors in the vicinity of Yakima Valley. Local No. 1 was chartered on July 28, 1937. 111. THE -UNFAIR LABOR PRACTICES After it was chartered in July 1937, the Union instituted an or- ganizational campaign throughout the Yakima Valley district. Early in October, the Union, through Gordon Lobb, its secretary- treasurer and district representative , began to organize the employees on the respondent's night shift. By October 25, 1937, 21 employees had signed union application cards. On October 25, 1937, Joel Conner and Robert Howfield, two employees of the respondent, were discharged. Conner had been employed by the respondent since 193.4 as a fire- man. On the opening of the season, lie was hired again on Septem- ber 20, 1937. He became a member of the Union late in September or early in October, and was one of its most active members. He kept application cards above his desk in the furnace room, and at midnight, when the employees gathered for lunch, he solicited their membership and supplied them with union cards. VAS Li1NGTO.N DEHYDRATED FOOD COMPANY 525 On the evening of October 25, 1937, on reporting for work, Conner was informed by Alfred Dahl, the night kiln foreman, that Joseph Dasdice, the general superintendent, had left a note with Dahl stating that Conner had been discharged. Conner questioned Dahl concerning the reason for the discharge, and Dahl, according to Con- ner, replied that he "imagined they had heard about our cards we signed." Conner next consulted Smith, the night superintendent, who, according to Conner's testimony, "-was quite a bit surprised that two of his men had been fired over his head . . . he didn't know anything about it." When Conner asked Smith whether "there was anything in his work," Smith replied in the negative. Dahl did not deny Conner's testimony. Smith, who had left Washington shortly after October 25, 1937, because of the illness of his wife, did not testify. Dasdice testified that he had informed Smith of the dis- charge and the reasons therefor, on the morning of October 25. This is refuted, however, by Dahl, the night kiln foreman, who testified that on the night of October 25, Smitli asked him why Conner has been discharged. In the light of Dahl's testimony, and also in the light of Howfield's corroboration, as discussed immediately below, we find that the events surrounding Conner's discharge oc- curred substantially as he testified. . Howfield's discharge occurred at the same time under closely similar circumstances. He had been employed by the respondent as a kiln swamper since October 14, 1937. He had applied for member- ship in the Union some time prior to his employment by the respond- ent, although he did not become a "paid up" (i. e., his application was not finally accepted) member until October 25, immediately after his discharge. Along with Conner, he acted as solicitor for the Union among the night workers employed by the respondent.' It was Howfield's practice to send employees down to the fireroom to sign the application cards which Conner kept there. As in the case of Conner, when Howfield reported for his work on the night shift on October 25, 1937, Dahl told Howfield that he had received a note from Dasdice stating that Howfield had been "replaced." Howfield immediately reported his discharge to Smith, who said, "What the hell is going on around here. - What is the idea of firing two men without telling me ..." Thus simultaneously and under identical circumstances, the two employees of the respondent who were active in soliciting member- I The evidence shows that only one other employee, Louise Thibedeau, engaged in active solicitation . Thlbedeau, who was one of the group of women who were employed by the respondent irregularly from day to day , solicited membership among the women workers. She was laid off late in October and then was rehired for a few days. She was not employed by the respondent after November 8, 1937. Although there is some suspicion concerning her discharge , in the absence of an allegation in the complaint regarding dis- crimination against her , and in the absence of more definite proof, we make no finding concerning Thibedeau's release by the respondent. 526 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ship in the Union were discharged. The respondent, however, de- nies that Conner and Howfield were discharged for their activities on behalf of the Union and offers both general and specific defenses. The nature of the defenses, however, convinces us to the contrary. First, the respondent claims both that it was unaware of any union activities in its plant and that, in any event, it was not hostile to union organization. Ira Cardiff, the respondent's president, testi- fied that through "general talk" and through statements made to him by Dasdice, he was aware of organizing activities in his plant. Dasdice first claimed that he had been unaware of organizing activi- ties in the plant until November; later Dasdice admitted that he had known since September that the employees were being organ- ized. He denied knowing that Conner and Howfield were members of the Union until after charges had been filed. The general lack of credibility of the respondent's two chief officers, Cardiff and Dasdice, is indicated by Dasdice's testimony that, although he was aware of the union activities, he had never discussed the matter with Cardiff, while-Cardiff himself testified, as already stated, that he had gained his knowledge of union activities from Dasdice. Both Hazel Johnson, a forelady, and James Jones, a foreman, also testified that they had been aware of union activities in the plant prior to October 25, 1937. Cardiff testified that he had no objections to his employees organ- izing, that the plant was run on an "open shop" basis and that em- ployees were hired regardless of, and without inquiry into, their union affiliations. The respondent's claim of disinterest in the union activi- ties of its employees, however, was effectively refuted by its own witnesses. The respondent called as witnesses three employees who, it claimed, were members of a union but whom it nevertheless had employed without objection. Two of the witnesses, Jones, a fore- man, and Zerr, an employee, testified that they had joined the Tun- nelers, Miners and Smelters Union during the summer when the respondent's plant was not in operation. That Union had no juris- diction over the respondent's plant, and both admitted they had joined only because the work in which they had been engaged re- quired membership in the Union. They were unable to identify the local number or its officers, and stated they had attended no meet- ings and paid no dues. Affirmative evidence of the respondent's attitude, however, was provided by its employee, Mack Berto, who had belonged to the Shorewater Bay Oyster Workers Union from April 2, 1937, to August 21, 1937. Berto testified that the respond- ent was aware of the fact that he was a union member because, when he applied for a job with the respondent on or about August 28, 1937, he was wearing a union badge in his hat. He was interviewed by Dasdice, Childs, the respondent's cashier, and Swinstead, the WASHINGTON DEHYDRATED FOOD COMPANY 527 respondent's warehouse foreman. Each questioned Berto concerning the union badge, and asked him "about how long I joined, what it cost . . . and what benefit was derived from the union." When Berto explained to the respondent's officials that, since there had been a closed shop "I really had to join or else quit," and when he further explained that he had withdrawn from the Union on August 21, they "seemed to be satisfied" and Berto was hired by the respondent. In the light of this undenied testimony of its own witness, we cannot give credence to the respondent's claim of lack of interest in its employees' union affiliations.2 The respondent's affirmative defenses are equally as self-convicting. In its answer to the complaint, the respondent alleged that Conner was discharged for drunkenness which made him unfit for duty, and that Howfield was discharged for inefficiency. These defenses will be considered separately. The respondent adduced considerable evidence of Conner's drink- ing. Cardiff testified that it had been reported to him that Conner had "passed out" on occasions for 2 or 3 hours at a time while in charge of the furnace room; similarly, Dasdice testified that Jones, the night foreman, complained several times that Conner had " passed out." Although Cardiff at first testified that on October 25, 1937, Dasdice had told him that Conner had been drunk the night before, he later admitted that he did not learn of Conner's drinking until several weeks after the discharge. Dasdice's testimony was that he had known of Conner's addiction for three or four years, that he had seen empty liquor bottles on the floor of the furnace room, and that the foremen had complained to him many times. When Dasdice was asked why he had neither reported the matter to Cardiff nor had discharged or warned Conner, Dasdice replied that although he "had, seen him staggering," he "wanted to be able to catch him with the bottle to his lips." Dasdice also admitted that in January 1938, he told Cook, the day fireman, that he had never heard of any drinking around the respondent's plant. 2 Cardiff's attitude is further revealed by the fact that on December 13, after charges had been filed in this case and Board 's Field Examiner McClaskey had visited the respondent 's plant , Cardiff wrote to the Regional Office : "Your Mr. McClaskey will recall that he was informed while in our office that if we were obliged to be annoyed by your racket , we would close our plant. Therefore, upon receipt of his letter of November 23rd, we immediately cleaned up our commitments and closed our plant ." The evi- dence showed that the plant was in operation in February 1938, although it apparently had shut down for a short time. Further light is thrown on Cardiff 's attitude not only by Foreman Dahl's statement to Conner on Conner 's discharge, as described above, but also by the remark made by Hazel Johnson, forelady of the peeling room, to Conner, that "if Cardiff found out we were organizing the place , we would be hunting a job." Al- though Cardiff testified that lie had no objections to his employees organizing , it is clear that he failed to make evident such an attitude even to his own foremen. 528 DECISIONS OF NATIONAL LABOR RELATIONS- BOARD The incredibility of this defense seems to have become apparent to Dasdice; he finally agreed that "the damage rather than the drinking" was responsible for Conner's discharge, and that "the drinking had nothing to do with it." Thus the respondent shifted its emphasis from Conner' s alleged intemperance, which it originally assigned as a reason for his dis- charge in its answer, to the contention that Conner was discharged because he was responsible for burning apples on the night of Oc- tober 24, 1937. Analysis of the evidence on this point, however, discloses many inconsistencies. Even on the question of the amount of damage alleged to, have occurred, there is not only conflict between the Board's witnesses, on the one hand, and the respondent's on the other, but also there is little agreement among the respondent's own witnesses. Cardiff variously estimated the damage as 25 per cent of all the apples-which would amount to approximately 5,000 pounds-and 2,063 pounds running through seven kilns. Dasdice testified that seven kilns, or 2,063 pounds, were burned. Wayne Rauscher, whose duty it was to sort out the damaged apples, stated that "quite a bit" had been spoiled; this he estimated as about 6,000 pounds. Dahl, the night kiln foreman, a witness called by the Board, testified that not more than 15 per cent of the apples in one kiln- about 150 pounds-were burned. Still further doubt is cast upon the bona fides of the respondent's contention by the contradictory evidence concerning which kilns con- tained the spoiled apples. Dasdice testified that the apples in kilns numbers 4, 13, 17, 14, and "two or three more" were burned. Dahl, on the other hand, testified that the burning was confined to the apples in kiln number 4. Examination of the evidence reveals that Dasdice's testimony is not reliable. Chris Fix, an employee whose duty it is to turn the apples at regular intervals during the night in the odd numbered kilns, testified that throughout the night of October 24, 1937, he saw no burned apples in his kilns and that "I don't see how there could be any without my seeing it." Further, the respondent's own evidence reveals that Dasdice's estimate could not have been correct. He testified that the only grades of fruit which were injured were Washington Extra Choice and Fancy. The kiln record:' reveals, however, that no such grades of fruit were in kiln number 17 at all, although this was one of the four kilns which S The record contradicted the respondent 's testimony in four respects : ( 1) it showed that Dasdice's testimony either concerning the grade of apples injured or concerning the fact that kiln number 17 contained burned apples was incorrect ; ( 2) it showed that Dasdice's estimate of the length of time the apples had been burned . was incorrect at least as far as kiln number 14 was involved ; ( 3) it showed that four kilns were still loaded on the morning of October 25, 1937, although Dasdice claimed they were all empty ; and (4 ) it showed only 19 kilns were in use on the night of October 24, although Cardiff testified 21 had been burning. WASHINGTON DEHYDRATED FOOD COMPANY 529 Dasdice specified as having contained burned fruit. Further, kiln number 17 was not unloaded until 1 p. m. on October 25, several hours after Conner's discharge, and so not possibly a cause for such dis- charge. Moreover, Dasdice testified that the apples were so badly damaged that "the burning must have been going on all night." Yet the kiln record shows that kiln number 14 had been unloaded at 12: 50 a. m.-a little more than 5 hours after Conner had come on duty and considerably less time than that estimated by Dasdice as necessary to accomplish the damage done. Thus, we find that, although the respondent attributed Conner's discharge to serious damage to a. large number of apples, and al- though more substantial proof of such facts would seem to be avail- able to the respondent, the respondent has failed in its attempt to show either the amount of damage or the kilns in which the damage occurred. Coupled with this failure is the lack of evidence to show either that any satisfactory investigation was made prior to Conner's discharge, or that, even at the time of the hearing, the responsibility was properly fixed on Conner. The evidence shows that various employees may be responsible for the burning of apples. The apples are placed on the kiln floor and are heated by the furnaces beneath the floor for 12 to 18 hours. Most of the apples are placed in the kilns during one shift and removed during the next, so that faulty management by either of two shifts may be responsible for injury to the fruit. After the apples are loaded, a crew of "turners" enter the kilns at regular intervals and turn the apples. The kiln foreman, who is in charge of the turners and of loading and unloading, notifies the fireman, who remains in the furnace room below the kilns, when to turn the heat on and off. There are no thermostats or regulators in the respondent's plant and the fireman, to maintain the proper de- gree of heat, is dependent partly on the color of the stoves and partly on signals on a bell which is rung by the kiln foreman to indicate when the heat is to be increased or decreased. The evidence is con- flicting concerning the extent to which the turners and the kiln fore- man may be responsible for burning. Conner testified that the fireman must depend on signals from the foreman in order to know how much heat to apply. Both Cardiff and Dasdice stated that the fireman has entire responsibility as to the degree of heat necessary ; Cardiff subsequently admitted, however, that all the instructions con- cerning when to turn the heat up or down must come from the em- ployees working on the kiln level. Cook, the day fireman, testified that "they ring, if they think there is too much heat; they will call you" and that burning apples may or may not be the fault of the fireman. 530 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The evidence further shows that throughout the drying process, the kiln foreman watches the apples and the kiln turners enter the kilns for 50 or 60 turnings during a single shift. Each time they turn, the turners can see the condition of the fruit. Cardiff stated that the "men working in the driers may share responsibility for the burn- ing" while Dasdice similarly admitted that there could not be as much burning as alleged without knowledge of the night foreman. We find from this testimony that others than the fireman can be responsible for burning and that Dasdice so knew. We conclude that it is impossible that the amount.of burning which the respondent claims to have occurred could have taken place without the knowl- edge and, hence, partial responsibility, of the night foreman or the turners, or both. We further conclude that the employees on the day shift could also have been responsible for the alleged damage. In the light of these various possibilities of responsibility, the na- ture of respondent's investigation whereby it fixed the blame on Conner is significant. Dasdice testified that when he arrived at the plant on the morning of October 25, he found all the kilns empty and unloaded. Since there is ordinarily a "hang-over of four kilns," he claimed that he felt something was amiss and so went to the storeroom, where he found the damaged apples. This version of the discovery by Dasdice, however, is refuted by the evidence : the kiln record shows that at the time of Dasdice's arrival in the plant on the morning of October 25, at least four kilns were still. loaded and were not unloaded until the afternoon of October 25. Thus at the outset, serious doubt is thrown on the "investigation" on which Dasdice claimed to have based the discharge. The. testimony concerning other phases of the "investigation" is no more satisfactory. Although Cardiff testified that the only way to fix the responsibility was by "consultation" with other employees and the foreman, his in- vestigation was limited to talking to Dasdice after the discharge had been accomplished, and to "one or two others" whose names Cardiff could not recall. Dasdice's description of his own investigation is confused. First he testified that when he saw the burned fruit, he recalled that Conner drank and so "surmised" that Conner must have been drunk the night of October 24. There was no testimony, how- ever, that Conner was drunk on that night ; rather Conner expressly denied having been drunk, and Dahl, the night foreman, testified that he had received proper responses to his signals during the night. Dasdice then testified that, on discovering the burned fruit, he "questioned several men." He claimed to have consulted with Dahl, but he later admitted that he did not speak to Dahl. until the night of October 25, several hours after the discharge, and that even then Dahl WASHINGTON DEHYDRATED FOOD COMPANY 531 only told Dasdice that the had found some burned fruit at turning time. Dahl himself testified that he had not been consulted , but be- came aware of the discharge only when notified at night by Dasdice. Dasdice also claimed to have consulted Smith, the night super- intendent, before the discharge, yet Dahl testified that Smith asked him on the night of October 25 why Conner had been discharged. Similarly, as described above, Conner testified that when he spoke to Smith on the night of October 25, Smith expressed surprise that Conner "had been fired over his head" andAenied .that it was- because. of Conner's work. . Dasdice did not claim to have consulted any other named employees. As stated above, Chris Fix, the only night turner called on to testify, observed nothing amiss and saw no burned fruit in the odd numbered kilns on the night of October 24 . Dasdice did not consult any of the employees on the day shift. Cardiff testified that Dasdice had told him he had eliminated the day shift from blame because all the fruit which had been burned had been placed on the kilns during the night shift. Dasdice himself, however, based the elimination on the fact that lie had looked in the kilns at 6 p. m. on October 24, and had found the apples in satisfactory condition . Both explanations advanced are refuted by the evidence . Contrary to the statement attributed to Dasdice by Cardiff, the apples in three of the four kilns which Dasdice specified as containing burned fruit had been placed on the floors by the day shift . Kiln numbers 4 and 14 had been under the supervision of the day shift for many hours . Further, in con- tradiction of Dasdice's testimony, it was disclosed that each kiln has an area, of 400 square feet, is lighted only by a 50 -watt bulb, and the apples are piled from 6 to 8 inches deep on the floor . Dahl, the night foreman, testified , and we so find that "just by looking at" the kiln in the manner claimed by Dasdice, it would be impossible to discover the condition of the apples. We do not believe that the day shift was reasonably or in good faith eliminated from the possibility of responsibility . Further, we find that Dasdice did not consult either Dahl or Smith before discharging Conner, and that no bona fide attempt was made to fix the responsibility for what damage did occur. Finally, assuming, without finding, that some fruit was burned and that Conner was responsible therefor, the evidence shows that burning is not a rare occurrence or one which ordinarily entails discharge. Dasdice admitted there was some scorching "every few days." Cardiff stated that in 1936 "there might have been a whole kiln of fruit burned" but that "men have been discharged for that." Since Con- ner and Cook, the day fireman, had been employed for some time prior and subsequent to 1936, it is clear that no firemen were discharged for the burning which occurred in 1936. Dahl testified that during 532 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the prior season, half a kiln was burned but nobody was discharged, and that in comparison with the amount burned 4 on October 24, 1937, "we have had kilns with just as much in, sometime," that "at times there has been kilns just as bad as that" and that he did not feel that the burning on October 24, 1937, was so bad that it was necessary to report it. Thus, in summary, it appears (1). that shortly after Conner became an active solicitor for the Union, and after the respondent had made inquiries concerning at least one of its employee's union affiliations, Conner was discharged; (2) that the respondent claimed in its answer that drunkenness was the cause of the discharge; (3) that the respondent admitted that it was unaware of the alleged drunkenness until after Conner was discharged; (4) that the respond- ent's testimony concerning both the extent of the damage and the particular kilns of fruit which were claimed to have been burned was refuted or contradicted in part by its own witnesses, and in part by its own foreman and kiln record; (5) that the respondent made no fair attempt to fix the responsibility before discharging Conner; and (6) that similar burning had previously occurred without resulting in discharge. The evidence concerning Howfield's discharge, though less detailed, is similar in its general outlines to that concerning Conner and must be viewed in the light of the latter's discharge. The respondent con- tends that Howfield's discharge was due to his having improperly cleaned the kilns so as to cause damage to certain box shook. How- field was a kiln swamper, whose duty it was to clean the kiln after the dried fruit was unloaded. After the drying process, fruit par- ticles stick to the kiln floor. The swamper cleans the kiln by hosing the floor with a fine spray to loosen the particles and then by remov- ing the particles with a wire brush. The evidence shows that the swamper should use only a fine spray although a steady stream would make the scraping process unnecessary. Since the kiln hopper is not watertight, the fine spray is required so as to avoid excess leakage. The respondent contends that during his shift on the night of October 24, 1937, Howfield violated the rules by using a steady stream of water, thereby causing the water to leak through the kilns, down through the hoppers and through the shiplap ceiling of a room, where box shook is stored, thus spoiling the shook by discoloration. Cardiff testified that the damage to the box shook amounted in value to about $50, but that "it was not a large loss and it did not bother us much." Jones, the day foreman, testified that Howfield was "all right for a beginner" though a little "slow." Dahl, the night foreman, stated 4 As described above, Dahl estimated that 150 pounds of apples were damaged. WASHINGTON DEHYDRATED FOOD COMPANY 533 that Howfield cleaned "well" and that he had never seen him use a steady stream of water. Howfield himself denied that he had ever used a steady stream. Much of the evidence introduced by the respondent to establish Howfield's responsibility for the damaged shook is not credible. The only testimony directly relating Howfield to the damaged shook was that of Harley Fritz, the night mechanic, who testified that on the morning of October 24 , he saw Howfield using a steady stream of water in kiln number 9, that he then proceeded to the shook room to examine the fire pump therein, and that when he reached the room, he saw water leaking through the ceiling . Fritz admitted that he realized that the leaking water would ruin the shook , yet lie said nothing to Howfield and did not report the matter to any supervisory officials. . The kiln record shows that kiln number 9 was not in use on the night of October 24 . Since kilns are sprayed immediately after being unloaded, there was no occasion to swamp kiln number 9 at all. We cannot accept Fritz's testimony as credible. Jones testified that the shook room was under the west row of kilns which are numbered 11, 13, 15, 17, and 19 and that the overwatering must have occurred in one of these. The kiln record shows, however, that kiln number 15 was not unloaded until 6: 30 a. m. on October 25, that kiln number 17 was loaded until 1 p. m., and that kiln number 19 was loaded until 1: 15 p. m. Since Howfield did no swamping after 6 a. m., watering in these kilns would not have been responsible for the discoloration. Rauscher, another witness of the respondent, testi- fied that the damaged shook was under kiln numbers 15, 17, and 19. As just observed, no swamping could have occurred in any of these kilns. Thus only under Jones' testimony, and then only as to kiln numbers 11 and 13, which no other witness mentioned , would it be possible for Howfield to have been responsible for the damaged shook. Throwing further doubt, on the responsibility of Howfield's swamp- ing for the discoloration of the shook is the shook itself which was introduced into evidence . The shook is about a quarter of an inch thick, 9 inches wide, and 17 inches long. It is kept in stacks of 25, standing on edge on the floor of the shook room. The water , accord- ing to Dasdice's own description, dropped vertically through the hopper walls, through the shook-room ceiling. and upon the vertically placed shook. Yet the shook's discoloration centers on one side of the wood, while the top, which was nearest the ceiling, is entirely free from discoloration. The respondent was unable to explain how faulty swamping resulting in leakage through the ceiling could have caused discoloration in this particular way. 534 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Thus we find that the respondent has adduced no convincing evi- dence that Howfield was responsible for the damaged shook. The evidence further shows that leakage commonly occurs, although the water usually drops on the furnace floor, rather than into the shook room. There is no evidence that the respondent made any investiga- tion to fix the responsibility for the damage; on the contrary, it appears that neither Smith nor Dahl, the night superintendent and the night kiln foreman respectively, knew anything of the reasons for. Howfield?s discharge until after it had been effected by Dasdice. In its brief filed with the Trial Examiner after the hearing, the respondent contended that "it is not necessary for the respondent to prove why it discharged these employees and that it had the right to do so for any cause deemed sufficient by it or for no cause at all" provided that the discharge was not a violation of the Act, and in its brief filed with the Board, the respondent contended it was under no duty to hold "an inquest" before it discharged its employees. While such contention is sound, in the abstract, the respondent did attempt, after evidence was introduced by the Board to show that the respond- ent had simultaneously discharged two of its employees who were most active in soliciting membership on behalf of the Union; to explain the cause of the discharge. Its explanations were not only contradictory to its own records but often self-contradictory as well. Further, in prior cases, in rejecting an affirmative defense, the Board has pointed to shifts by the employer from one reason to another in asserting an affirmative defense.-' A similar reason militates against our acceptance of the respondent's defense against the allegation that Conner was discriminatorily discharged. So, too, we are not im- pressed by the sincerity of the respondent's accusations of wrong- doing on the part of Conner and Howfield in the light of its failure to make any adequate investigation to fix the responsibility on them. Although it is true that we are not concerned primarily with the problem of whether Conner and Howfield were in fact responsible for the damage, but rather with whether the respondent in good faith discharged them because it believed they were responsible,6 neverthe- less, the absence of any satisfactory evidence to show that Conner and Howfield were responsible, and even more important, of any evidence to show that the respondent made any attempt to discover whether they were responsible, indicates that the alleged damage, if it occurred at all, was seized upon by the respondent as a pretext for 6 See, e. g. Matter of Scandore Paper Box Co ., Inc., etc. and Paper Box Makers Union, etc., 4 N. L. R. B. 910. ° Cf. Matter of The Seagrove Corporation and United Automobile Workers of America, 4 N. I. R. B. 1093. WASHINGTON DEHYDRATED FOOD COMPANY 535 ridding itself of the most active union members and for later justify- ing those discharges. The unreliability of the respondent's witnesses, coupled with these factors, compels us to the conclusion that Conner and Howfield were discriminatorily discharged. We find that the respondent discharged Joel Conner and Robert Howfield on October 25, 1937, because of their union activities, thereby discouraging membership in the Union; that in and by said discharges, and each of them, the respondent interfered with, re- strained, and coerced its employees in the exercise of rights guaran- teed by Section 7 of the Act. At the time of their discharges, Howfield was earning 321/2 cents an hour, working 12 hours a day and 7 days a ' week; Conner was earning 371/2 cents an hour, working 12 hours per day, and 7 days a week. The evidence does not show that either has earned any in- come since his discharge other than that from the W. P. A. Both desire reinstatement with the respondent. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES ON COMMERCE The activities of the respondent set forth in Section III above, occurring in connection with the operations of the respondent de- scribed 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.? THE REMEDY We have found that the respondent discriminatorily discharged Conner and HowfielcL In order to remedy the unfair labor practice by restoring the status yao as far as possible we shall require the respondent to offer these employees 'reinstatement with back pay. The respondent, however, urges that certain considerations preclude The respondent in its brief contends that "It is not enough that the employer be engaged in Interstate Commerce . It is not enough that it be shown the employer has been guilty of unfair labor practice . There must be a showing that as a result of the unfair labor practices the Interstate Commerce of the employer has been affected and this must be manifested in some impediment to or obstruction of such commerce and its free flow." The Supreme Court has decided adversely to this contention : ". . . it cannot be maintained that the exertion of federal power must await the disruption of that commerce . Congress was entitled to provide reasonable preventative measures and that was the object of the National Labor Relations Act." Consolidated Edison Com- pany of New York. Inc., et at . v. 1*ational Labor Relations Board, et at ., 58 Sup. Ct. 206 (1938 ). See also Matter of The Boss Manufacturing Company and International Glove Workers' Union of America, Local No. 85, 11 N. L. R. B. 432. Cardiff, the respond- ent's president , admitted that "if the plant was tied up" by labor disputes "of course there would be no shipments." 1f0935--}0-vol. 14-35 536 DECISIONS OF NATIONAL LABOR RELATIONS BOARD reinstatement of both Conner and Howfield. Concerning Conner, it contends that, in view of Conner's alleged drinking habits which it has since discovered, to reinstate Conner would create a serious in- dustrial hazard and would cause difficulty in obtaining insurance. The respondent's present position, is, of course, inconsistent with its original contention, as stated by Dasdice, that it had been aware of Conner's intemperance for several years, but had taken no action. The respondent thus claims first that it knew of Conner's intemper- ance for some years, but nevertheless retained him, and second, that it cannot now reinstate him because of such intemperance. Nor are we convinced that Conner's alleged unfitness is such as to preclude our requiring his reinstatement. Reinstatement pursuant to our order will not cloak Conner with immunity from future discipline for any transgressions which he may in the future commit. Reinstatement merely contemplates restoration of the relationship between the em- ployer and his employees which normally would have continued had the employer not engaged in unfair labor practices. Concerning the reinstatement of Howfield, the respondent contends that, since the peak of the season had been passed some time after Howfield's discharge, so that lie would have been ultimately laid off in any event, there is now nothing to which Howfield can be rein- stated. Again, the respondent misconstrues the nature of the order of reinstatement, which contemplates only the resumption of the normal employer-employee relationship. If the respondent' s plant is at present shut down so that there is no need for Howfield' s services, our order of reinstatement does not require that he be immediately set to work. When the respondent resumes its operations, however, Howfield shall be considered for employment along with all other employees in accordance with the respondent's usual method, without discrimination because of his union affiliation or activities. When employment is available, Howfield shall be offered employment in his former or substantially equivalent position, as such employment be- comes available and before persons not in the employ of the respond- ent on October 24, 1937, are hired for such work.8 We will further order the respondent to make Conner and Howfield whole for any loss of pay sustained by virtue of the discrimination by paying to each a sum of money equal to that which each would have earned as wages from the date of his discharge until the date of the offer of 8 Cf. Matter of Smith Wood Products, Inc. and Plywood and. Veneer Workers Local No. 2691, International Woodworkers of America, 7 N. L. R. B. 950; Matter of The Boss Manufacturing Company and International Glove Workers' Union of America, Local No. 85, 11 N. L. R. B. 432. WASHINGTON DEHYDRATED FOOD COMPANY 537 reinstatement, less his net earnings during such period," and to cease and desist from its unfair labor practices. Upon the basis of the foregoing findings of fact and upon the entire record in the proceeding, the Board makes the following : CONCLUSIONS OF LAW 1. United Cannery, Agricultural, Packing and Allied Workers of America, Yakima Valley, Local No. 1, is a labor organization, within the meaning of Section 2 (5) of the Act. 2. By discriminating in regard to the hire and tenure of employ- ment of Joel Conner and Robert Howfield, thereby discouraging membership in United Cannery, Agricultural, Packing and Allied Workers of America, Yakima Valley, Local No. 1, the respondent has engaged in and is engaging in unfair labor practices, within the meaning of Section 8 (3) of the Act. 3. By interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed by Section 7 of the Act, the respondent has engaged in and is engaging in unfair labor practices, within the meaning of Section 8 (1) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting commerce, within the meaning of Section 2 (6) and (7) of the Act. ORDER Upon the basis of the foregoing findings of fact and conclusions of law, and pursuant to Section 10 (c) of the National Labor Relations Act, the National Labor Relations Board hereby orders that the re- spondent, Washington Dehydrated Food Company, and its officers, agents, successors, and assigns shall: 1. Cease and desist from : (a) Discouraging membership in United Cannery, Agricultural, Packing and Allied Workers of America, Yakima Valley, Local No. 1, or any other labor organization of its employees, by discriminating in regard to hire or tenure of employment or 'any term or condition of employment; "By net earnings" Is meant earnings less expenses , such as for transportation, room, and board , incurred by an employee in connection with obtaining work and working elsewhere than for the respondent, which would not have been incurred but for his un- lawful discharge and the consequent necessity of his seeking employment elsewhere. See Matter of Crossett Lumber Company and United Brotherhood of Carpenters and Join- ers of America, Lumber and Sawmill Workers Union, Local 2590, 8 N. L. R. B. 440. Monies received for work performed upon Federal , State, county , municipal, or other work-relief projects are not deductible as "net earnings ," but, as provided in the Order below , shall be deducted and paid over to the appropriate fiscal agency of the Federal, State, county, municipal , or other government or governments which supplied the funds for said work-relief projects. 538 -DECISIONS Ol NATIONAL LABOR RELATIONS BOARD (b) In any other manner interfering with, restraining , or coercing its employees in the exercise of the right to self-organization , to form, join, or assist labor organizations, to bargain collectively through rep- resentatives of their own choosing, and to engage in concerted activi- ties for the purpose of collective bargaining or other mutual aid or protection , as guaranteed in Section 7 of the Act. 2. Take the following affirmative action , which the Board finds will effectuate the policies of the Act: (a) Offer to Joel Conner and Robert Howfield immediate and full reinstatement , on resumption of the plant's operations , to the positions which they formerly held with the respondent on October 25, 1937, without prejudice to their seniority and other rights and privileges; provided, however, that if no employment is immediately available, they shall be reinstated in accordance with the method set out above in the section entitled "The Remedy"; (b) Make whole Joel Conner and Robert Howfield for any loss of pay each of them suffered on and after October 25 , 1937, by reason of their discharge, by payment to each of a sum of money equal to that which each normally would have earned as wages during the period from said October 25 , 1937, to the date of the offer of reinstatement, less the net earnings of each during that period ; deducting, however. from the amount otherwise due Joel Conner and Robert Howfield, monies received by each during said period for work performed upon Federal, State, county , municipal , or other work-relief projects, and pay over the amount so deducted to the appropriate fiscal agency of the Federal , State, county, municipal , or other government or govern- ments which supplied the funds for said work-relief projects; (c) Post immediately, and keep posted for a period of at least sixty (60) consecutive days from the date of posting, notices to its em- ployees in conspicuous places throughout its plant, stating that the respondent will cease and desist in the manner set forth in paragraph 1 of this Order, and take the affirmative action set forth in paragraphs 2 (a) and (b) ; (d) Notify the Regional Director for the Nineteenth Region in writing within ten (10) days from the date of this Order what steps the respondent has taken to comply herewith. MR. WILLIAM M. LEISERSON took no part in the consideration of the above Decision and Order.