California Prune and Apricot Growers Association

In the Matter of CALIFORNIA PRUNE AND APRICOT GROWERS ASSOCIATION and INTERNATIONAL LONGSIIOREDIEN'S AND WAREHOUSEMEN'S UNION, LOCAL 1-6 Case No. C-1636.-Decided September 14, 1940 Jurisdiction : dried fruit processing and packing industry. Unfair Labor Practices Discrimination: discharge, charges of, dismissed Although an employee refused to join a labor organization which company had assisted in organizing, held there was no justification for an inference that his discharge two years later was occasioned by his union activity where circumstances show reasonable conviction by respondent that be was deficient in his work. Practice and Procedure : complaint dismissed Mr. John Paul Jennings , for the Board. Mr. 1V. V. Jaclea , of San Jose,,Calif., and Hagar, Crosby c6 Crosby, by Mr. Gerald H. Hagar, of Oakland, Calif ., for the respondent. Gladstein, Grossrzan, Margolis c6 Sawyer, of San Francisco , Calif., for the I. L. W. U. Mr. Raymond J. Compton, of counsel to the Board. DECISION AND ORDER STATEMENT OF THE CASE Upon charges and amended charges duly filed by International Long- shoremen's and Warehousemen's Union, Local 1-6, herein called the I. L. W. U., the National Labor Relations Board, herein called the Board, by the Regional Director for the Twentieth Region (San Fran- cisco, California), issued its complaint dated March 6, 1940, against California Prune and Apricot Growers Association, San Jose, Cali- fornia, the respondent herein, 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 alleged in substance (1) that the respondent, on September 9, 1939,' discharged and thereafter refused to reinstate 27 N. L. R: B., No. 45. 204 CALIFORNIA PRUNE AND APRICOT GROWERS ASSN. 205 D. R. Cooper, and since July 1939 refused to reinstate or employ Sally Giotta, because of their membership in and activity on behalf of the 1. L. W. U., and (2) that by the foregoing acts, by urging, persuading, and warning its employees to refrain from becoming or remaining members of, or from assisting or. participating in, the I. L. W. U., and by other acts, the respondent interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. Copies of the complaint and notice of hearing were duly served upon- the respondent and upon the I. L. W. U. Thereafter the respondent filed a written answer to the complaint, dated March 16, 1940, admit- ting the allegations of the complaint pertaining to its business but denying that it had engaged in the unfair labor practices alleged therein. Pursuant to notice and notice of postponement, a hearing was held in San Jose, California, from March 27 through March 29, 1940, before Henry J. Kent, the Trial Examiner duly designated by the Board. The Board and the respondent were represented by counsel, partici- pated in the hearing, and were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bear- ing upon the issues. During the course , of the hearing, the Trial Examiner granted a motion by counsel for the Board to dismiss the allegations of the complaint in so far as it alleged that the respondent had discriminatorily refused to reinstate or employ Sally Giotta and that the respondent had urged, persuaded, and warned its employees to refrain from becoming or remaining members of the I. L. W. U. At the close of the hearing, the respondent moved to strike the testimony of Earl T. Baker, pertaining to alleged assistance granted by the respondent in the, organization of another union in its plant, and further moved that the complaint be dismissed for failure of proof to sustain the allegations therein. The Trial Examiner reserved rul- ings on these motions for his Intermediate Report. A motion by coun- sel for the Board to amend the complaint to conform to the proof with respect to variances in names, dates, and other clerical errors, was granted by the Trial Examiner. During the course of the hearing the Trial Examiner ruled upon other motions and upon objections to the admission of evidence. The Board has reviewed the rulings of the Trial Examiner and finds that no prejudicial errors were com- mitted. The rulings are hereby affirmed. The Trial Examiner thereafter filed his Intermediate Report, dated' July 12,1940, copies of which were duly served on the parties, in which he found that the respondent had not engaged in unfair labor practices within the meaning of Section 8 (1) and (3) and Section 2, (6) and (7) of the Act, and granted the aforesaid motion of the respondent to . 206 DECISIONS OF NATIONAL LABOR RELATIONS BOARD dismiss the complaint. The Trial Examiner denied the motion made by the respondent to strike the testimony of Earl T. Baker. There- after the respondent and the Union filed exceptions to the Intermediate Report. The Union also filed a brief which the Board has considered. The Board has considered the exceptions to the Intermediate Report and, in so far as they are inconsistent with the findings, conclusions, and order set forth below, finds them to be without merit. . Upon the entire record in the case, the Board makes the following : FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENT The respondent is a California corporation engaged in the processing, packing, warehousing, sale and distribution of dried fruits and fruit products. Its principal office and place of business is located at San Jose, California, where it operates 5 plants, Nos. 6, 10, 11, 17, and 70. Four other plants of the respondent are located at Campbell, Morgan Hill, Gilroy, and Hollister, California. During 1938, the respondent processed, packed, and sold approxi- mately 95,000 tons of fruit and fruit products valued at approximately $9,500,000, of which 90 per cent 'i as shipped to points outside the State of California. The respondent stipulated that it is engaged in commerce within the meaning of the Act. IT. THE ORGANIZATION INVOLVED International Longshoremen's and Warehousemen's Union, Local 1-6, is a labor organization affiliated with the Congress of Industrial Organizations, admitting to membership employees of the respondent. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Background of labor relations In August 1937, Local 21084, Dried Fruit and Nut Packers Union, affiliated, with the American Federation of Labor, herein called Local 21084, organized the respondent's employees, and in 1937' and 1938 entered into collective bargaining contracts with the respondent. On April 20, 1939, the membership of Local 21084 voted 321 to 128 in favor of affiliating with the I. L. W. U. Thereafter, the I. L. W. U. _sought recognition by the respondent as the bargaining representative of its employees, and on Jime 20, 1939, filed charges with the Board alleging that the respondent had refused to bargain collectively and that it had interfered with and assisted in the organization and admin- CALIFORNIA PRUNE AND APRICOT GROWERS ASSN. 207 istration of Local 21084 with which it was continuing to negotiate. These charges were still pending at the time of the hearing in the instant case." B. The alleged disc' iinninatory discharge D. R. Cooper was first employed by the respondent in 1931, quitting the following year to work elsewhere. _ He returned to San Jose in 1934 and was again employed by the respondent at plant No. 6 where he worked until his discharge on September 9, 1939. Cooper was employed as a maintenance nman, and he and Thomas Whiteman, who was similarly employed, on the other shift, were responsible for the general maintenance and repair of the plant. While it appears that Whiteman assumed most of the electrical work, Cooper testified that there was no differentiation between Whiteman's duties and his own in so far as electrical work was concerned, and that-he had been charged generally by Robert Atkinson, plant superintendent, with the maintenance and repair of all plant machinery and equipment. Cooper joined Local 21084 when it was first organized in 1937. He testified that he did so only because Al Cariega, a fellow employee who was soliciting memberships in Local 21084, told him that Kluge, assistant general manager of the respondent, wanted all employees to join, and that if he did not join, he would lose his job. Cooper also testified that on two occasions after becoming a member of Local 21084 he had expressed to Atkinson his belief that Local 21084 was a "company union." He was among those voting on April 20, 1939, for the affiliation of Local 21084 with the I. L. W. U., and together with other employees signed a petition authorizing the I. L. W. U. to act as their collective bargaining agent. Whiteman also joined the 1. L. W. U. and both he and Cooper openly wore union buttons at the plant. They both testified that they saw no other employees wearing buttons while at work. Atkinson, however, testified that following the affiliation of Local 21084 with the I. L. W. U. he saw several _ employees wearing union buttons around the plant. Cooper also testified that on one occasion while working in, the machine shop he dropped his union button and that as he was picking it up Atkinson entered and accused him of loafing. On September 5, 1939, Cooper came to work at 2 p. in. and found Whiteman repairing the magnetic brake on the freight elevator. Whiteman told him that a loose nut from the bottom of the elevator had fallen into the magnetic brakq coil and had caused a short cir- I On August 24, 1940, the Board issued its decision in Matter of Abinante R Nola Pack- ing Co , et at., 26 N L. R 13 1288, wherein it found, inter alia, that the respondent, California Prune and Apricot (;rowers Association, had wrongfully assisted-in the organi- zation of Local 21084, but that it had not refused to bargain collectively with the I L W U 208 DECISIONS OF NATIONAL LABOR RELATIONS BOARD cuit, burning part of the wiring. Before Whiteman went off duty, Cooper helped him in 'replacing the repaired coil and adjusting the brake. Later in the day, the coil again burned out. Cooper reported to Atkinson that the coil was beyond repair and upon Cooper's advice, Atkinson sent for a service man from the Otis Elevator Company. Upon being told by the Otis service man that the coil could not be repaired, Atkinson ordered_ the installation of a new coil, and the elevator was again placed in service that same day. The repairs cost the respondent approximately $125.00. Whiteman had repaired the coil on February 21, 1939, and had then advised Atkinson to have it replaced. Atkinson, however, told 'him to repair it and that he would consult Edwin Barker, plant,in- spector, about purchasing a new one. According to Wjrhiteman, Atkin- son on that occasion blamed him for the condition of the coil. Atkin- son testified that an examination of the elevator on September 5, 1939, revealed that the brake had not been properly oiled and that nuts on the case housing the magnetic switch were loose. It was also- found that a motor bearing was hot from lack of oil, a packing-joint was loose and improperly packed, and the rubber bumpers on the elevator were so worn as to be unable to function. William Lawry, the Otis service man, testified that he had told Atkinson that since Cooper and White- man were not elevator men they should not be held responsible for the damage. Atkinson testified that he was away from the plant on September. 7, and did not definitely decide to discharge Cooper and Whiteman for their neglect of the elevator until Friday, September 8, after he had made a- survey of the plant that day and found a number of other repairs which they had failed to make. When Cooper came to work on September 9, 1939, he found a note from Whiteman on a board in the machine shop which read, "Well Coop it happened. Will be over after my tools Monday." Cooper took the note to Atkinson and asked him what it meant. Atkinson replied that he had dis- ,charged Whiteman and stated, "That means you too." Without asking Atkinson why he was discharged, Cooper returned to the shop to get his tools and then left the plant. Cooper testified that after Lawry, the Otis service man, examined the elevator on September 5, 1939, he had overheard him say that there was very little oil in the case housing the magnetic brake coil. Fol- lowing their discharge, he and Whiteman went to Miller, superintend- ent of the Otis Elevator Company, and protested that they had been dismissed on the basis of the report made by Lawry. According to Cooper, Miller told them they were not responsible for the condition of the elevator, and that although the oil was "a little bit low" it was not low enough to cause the damage that had occurred. Cooper ad- CALIFORNIA PRUNE AND APRICOT GROWERS ASSN. 209 mitted that Miller also told them that the machinery in the elevator' loft needed a general overhauling, but testified that he was "up. there every day" and had not discovered any mechanical deficiency. In view of the foregoing facts, we are convinced, as was the Trial Examiner, .that Cooper was not discharged because of his member- ship or activity in the I. L. W. U. While his reluctance in 1937 to join Local 21084, which the respondent had assisted in organizing, and his expressed belief at that time that it was a "company union," might sup- port an inference that the respondent bore some resentment toward Cooper, such an inference is not justified under the circumstances here present. There is no showing that Cooper was any more active in the I. L. W. U. than the substantial number of other employees, who had joined the I. L. W. U. Moreover, two of the four employees who were assigned portions of the work formerly done by Cooper and Whiteman were also members of the I. L. W. U. Although we are not convinced of the merits of the respondent's contention that Cooper and Whiteman were responsible for the damage to the elevator which occurred on September 5, 1939, we believe that the respondent's, con- viction that he was deficient in his work motivated his discharge. We find that the respondent has not discriminated in regard to the hire and tenure of employment of D. R. Cooper, thereby discourag- ing membership in a labor organization. Upon the basis of the above findings of fact and upon the entire record in the case, the Board makes the following : CONCLusIONs OF LAw 1. The operations of the respondent occur in commerce, within the meaning of Section 2 (6) of the Act. 2. International Longshoremen's and Warehousemen's Union, Local 1-6, affiliated with the Congress of Industrial Organizations, is a labor organization, within the meaning of Section 2 (5) of the Act. 3. The respondent has not discriminated against D. R. Cooper in regard to hire or tenure of employment or terms or conditions of employment, within the meaning of Section 8 (3) of the Act. -4. The respondent has not interfered with, restrained, or coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act, within the meaning of Section 8 (1) 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 com- plaint against the respondent, California Prune and Apricot Growers Association, San Jose, California, be, and it hereby is, dismissed. 323428-42-vol. 27-15