Great Western Mushroom Co.

III the Mattel' -of GREAT WESTERN MUSHROOM COMPANY and UNITED CANNERY, AGRICULTURAL, PACKING AND ALLIED WORKERS OF AMER- ICA, UNITED MUSHROOM WORKERS LOCAL UNION No. 300, AFFILIATED WITH THE CONGRESS OF INDUSTRIAL ORGANIZATIONS Case No. C-1552.-Decided September 20, 1940 Jurisdiction : mushroom growing and canning industry. Unfair Labor Practices In General, _ Discriminatory use of loans to employees by president of corporation properly attributable to corporation even though president used his per- sonal funds on ground that loans were transacted and repaid at corpora- tion's office with knowledge of board of directors. Iuterferenee,-Rcctrarnit, and Coercion Threatened eviction from company-owned houses by requiring of each employee-tenant a deferred-strike agreement as a condition of tenancy, held 8 (1)_ - Withholding loans to various employees for' the reason they were mein- hers of the union, held 8 (1) , Dtscianiaataon: discharge for joining and assisting the union and engaging in concerted activities Evicting employees from company-owned house, the free rental of which constituted part of their wages, because of the-activities of certain mem- bers of-the family in a prior proceeding constitutes an act of discrimination in violation of Section 8 (3). Te.sti fywlt under Act The eviction of an employee from a company-owned house, the free rental of which constituted part of his wages, because he had testified at an earlier hearing, constitutes a violation of Section 8 (4) Remedial Orders : reinstatement and back pay awarded employee discrimina- torilv discharged Employees discriminatorily evicted from company-owned house, the free rental of which constituted part of their wages, awarded a suns of money equal to the rental of new dwellings from the date of eviction to the date of offer of reinstatement plus incidental expenses directly incurred as a result of the eviction. Employee, o den ed to cease and desist from requiring or enforcing a de- ferred-strike agreement demanded of each employee-tenant of the company- owned houses. Until such is a fact, contemplated action by employer in having work peiformied by an independent contractor can have no effect upon order of reinstatement of discriminatorily discharged employee. Employer ordered to give separate written notice to each of its employee- tenants who have consented to a deferred-strike. agreement that such agreement is invalid under the Act and will not be enforced. 27 N. L. R. B., No. 79. 352 GREAT WESTERN MUSHROOM COMPANY 353 Definitions Individuals engaged in the growing, processing, canning, packing, market- ing and shipping of mushrooms held not to be agricultural litborers within the meaning of the Act. The growing of mushrooms and work incident thereto being carried on under artificial conditions more like cultivation in green houses than on a farm, is not agricultural in nature in the common understanding of the term The work performed in processing, canning, packing, marketing and shipping is not agricultural in nature, nor is it, in view of what has been stated above, incident to ordinary tanning operations Mr. Paul S. Kuelthau, for the Board. Mr. Omar E. Garwood, of Denver, Colo., for the respondent. Mr. Clyde Johnson, of Denver, Colo., for the Union. Mr. John Green, of counsel to the Board. DECISION AND ORDER STATEMENT OF TYIE CASE Upon charges duly filed by United Mushroom Workers Union No. 300, affiliated with the Congress of Industrial Organizations,' herein called the Union, the National Labor Relations Board, herein called the Board, by the Regional Director for the Twenty-second Region (Denver, Colorado), issued its complaint, dated March 4, 1940, against Great Western Mushroom Company, Adams County, Colorado, 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. Copies of the complaint accompanied by notice of hearing were duly served upon the respondent and upon the Union. With respect to the unfair labor, practices the complaint alleged, in substance (1) that the respondent, on September 30, 1939, discharged Dan Vigil, and at all, times thereafter refused to reinstate him because he joined and assisted the Union and, engaged in concerted activities with other employees for the purpose of collective bargaining and other mutual aid and protection; (2) that from October 1938 and at all times thereafter, the respondent urged, persuaded, and warned its employees at its plant near Broomfield, Colorado, to refrain from joining or retaining membership in the Union, and threatened said employees with discharge if they joined or assisted the Union or engaged in i The complete name of the labor organization herein is as stated in the caption of the cise- 3?3428-42-vol 27 24 354 DECISIONS OF NATIONAL LABOR RELATIONS BOARD concerted activities for the purpose of collective bargaining or other mutual aid or protection; (3) that the respondent, by its officers and agents, refused to -make loans to union members while making such -loans to non-union employees -for the purpose of inducing its em- ployees to refrain from joining or retaining membership in the Union; and (4) that by the foregoing acts, 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. The respondent in its answer, duly filed with the Board, denied the jurisdiction of the Board on the ground that its business was wholly agricultural and that 'the employee named in the complaint, -Dan Vigil, was an agricultural laborer and for that reason did not come within the meaning of the term "employee" as defined in Sec- tion 2 (3) of the Act; denied the allegations of unfair labor prac- tices; and made certain affirmative averments with respect-to the -alleged discriminatory ,discharge and the alleged discriminatory loans to its employees.2 - Pursuant to notice, a hearing was held at Deliver, Colorado, on March 18 and 10, 1940, before William B. Barton, the Trial Exam- iner duly designated by the Board. The Board and the respondent were represented by counsel and the Union by a duly authorized rep- -resentative. All parties participated in. the hearing and were af- -forded full opportunity to be heard, to examine and cross-examine witnesses, alicl'to introduce evidence bearinb upon the issues. At the commencement of the hearing the respondent renewed its motion -to dismiss, previously filed with the Regional Director,, on the ground that its employees were agricultural laborers within the meaning of Section 2 (3) of the Act. The Trial Examiner reserved ruling at the hearing and denied the motion in his Intermediate Report. For reasons hereinafter, noted, the ruling is hereby affirmed.' During the course of the hearing counsel for the Board offered in' evidence a copy of the complaint, the .settlement agreement, and the order dismissing the complaint of, a previous case before the Board; in- volving the respondent,' and, among others, Dan Vigil, the employee -named in the complaint herein.5 The Trial Examiner reserved ruling ttnd at the close of the hearing'denied the offer. - We hereby reverse the Trial Examiner, admit the exhibit into evidence,, and incorporate 'The respondent also 'flled with the Regional Director a motion to dismiss, dated March 13, 1940 , on the ground that the Board had no jurisdiction for the reason that all tile respondent 's employees were agricultural laborers as defined in Section 2 (3) of the Act. ' See footnote 2, supra 4 See Section III, infra. S 'Matter of Great Western Mushroom Company and United Cannery, Agricultural, Pack- ;ing, and Allied Workers of America, United Mushroom Workers Local Union No. 300 ,affiliated with the Congress ,of Industrial Organazatsons,' Case No. XXII-C-211. GREAT WEiSITERN MUSHROOM COMPANY 355 said exhibit as part of the record herein.6 At the close of the hearing the Trial Examiner granted a motion made by counsel for the Board to conform the pleadings to the proof adduced solely in respect to dates, spelling, and similar matters. During the course of the hear- ing the Trial Examiner made rulings on other motions and on objec- tions to the admission of evidence. We have reviewed all the rulings ,of the Trial Examiner and find that no prejudicial errors were committed. Except as indicated above, the rulings are hereby affirmed. Thereafter, the Trial Examiner issued his Intermediate Report, dated April 19,1940, copies of which were duly served upon the parties, in which he found that the respondent had engaged in and was en- ,gaging in unfair labor practices affecting commerce within the mean- ing of Section 8 (1) and (3) and Section 2 (6) and (7) of the Act. He recommended that the respondent cease and desist, from engaging in such unfair labor practices, that it offer full reinstatement to and make whole Dan Vigil for any loss of pay suffered by reason,of the respondent's discrimination in regard to his hire and tenure of em- ployment, and that it take certain other affirmative action designed to effectuate the policies of the Act. Thereafter, upon a supplemental charge and an amendment thereto duly filed by the Union and pursuant to an order of the Board grant- ing a motion filed by the Regional Attorney to amend the complaint and reopen the hearing and authorizing the Regional Director to amend the complaint and to issue notice of further hearing, the Re- gional Director, on May 31, 1940, issued an amendment to complaint, alleging that the respondent had engaged in and was engaging in unfair labor practices within the meaning of Section 8 (1), (3), and (4) and Section 2 (6) and. (7) of the Act. The amendment to com- plaint charged, in substance, that the respondent, on or about April 19, 1940, evicted Telesfor Vigil and family, including Elmer Vigil, from the house in which' said family had been living, which house was owned by the respondent and the rent for which constituted part 6 The respondent objected to the admission in evidence of the above exhibit on the .ground that , since a settlement participated in by the Board is "presumably the equivalent -of a judgment," the Board is precluded in this proceeding from considering matters alleged in the complaint of July 15 , 1939, and that further , as a matter of policy , it is undesirable for the Board to proceed on matters covered by that complaint . While we do not believe that the Board is estopped from proceeding on such complaint we agree that effective .administration of the Act requires that the Board give full effect to a settlement or compromise of unfair labor practice charges which the Regional Director or other agent of the Board has approved unless, however, the employer is shown to have continued to engage in the unfair labor practices thus settled or compromised . See Matter of Ralston Purina Company and Flour, Feed and Cereal Workers' Federal Union No. 19184, 24 N L. R B. 625 , and cases therein cited We shall consider the events preceding the settlement agreement as background to our analysis of the activities which foam the basis of the complaint herein We shall not, however , make any findings of unfair labor practices with respect to such events 356 DECISIONS OF, NATIONAL LABOR RELATIONS BOARD ,of the wages of said " Elmer and Telesfor Vigil, because Elmer Vigil testified at the hearing held in this matter on March 18 and 19, 1940, because said Elmer and Telesfor Vigil are members of-the Union, and -because Dan Vigil did not abandon the charge against the respondent. Copies of the amendment to complaint and accompanying notice of hearing were duly served upon the respondent and upon the Union. Pursuant to notice of postponement, a hearing on the amendment to complaint was held at Denver, Colorado, on June 20, 1940, before Charles E. Persons, the Trial Examiner duly designated by the Board. • The Board and the respondent were represented by counsel and the' Union by a duly authorized representative. All parties participated in the hearing and were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing on -the issues.' At the close of the hearing the Trial Examiner granted a, motion by counsel for the Board to conform the pleadings to the proof adduced. During the course of the hearing the Trial Examiner made various rulings on objections to the admission of evidence. The Board has reviewed the rulings of the Trial Examiner and finds that no prejudicial errors were committed. The rulings are hereby affirmed. Oli July 5, 1940, the Board issued in order that no Intermediate Report be issued in the further hearing and that pursuant to Article II, Section 37 (c), of National Labor Relations Board Rules and Regula- tions-Series 2, as amended, proposed findings of fact, proposed con- clusions of law, and a proposed order be issued, and that the parties be permitted, within twenty (20) days from the date of said proposed findings of fact, proposed conclusions of law, and proposed order, to file exceptions and to request oral argument before the Board, and be permitted within thirty (30) days from the date of the said pro- posed findings of fact, proposed conclusions of law, and proposed order to file a brief with the Board. Copies of this order were duly served upon all the parties to the original proceeding. On August 17,,1940, the Board issued Proposed Findings of-Fact, Proposed Conclusions of Law, and- Proposed Order in this proceeding, copies of which were duly served upon all the parties. On September 6, 1940, the respondent filed exceptions to the Pro- posed Findings of Fact, Proposed Conclusions of Law, and Proposed Order, and on September 16, 1940, a brief in support of its exceptions. The Board has considered the exceptions and the brief',filed by the respondent and, in so far as the exceptions are inconsistent with the 4 During the course of the hearing the respondent gave an "oral answer" to the amend- ment to complaint, in which the respondent denied each and every allegation in the amend- ment to complaint but admitted that Telesfor Vigil and family, including Elmer Vigil, were asked to vacate the respondent's house in which they were In ing , though not for the reasons alleged in the amendment to complaint GREAT WEISIT'ERN MUSHROOM COMPANY 357 findings, conclusions, and order set forth below, finds them to be without merit. Upon the entire record of the case, the Board makes the following : FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT The respondent, Great Western Mushroom Company, a Colorado corporation having its'principal office and place of business in Adams County, Colorado, is engaged in the growing, processing, packing, marketing, and shipping of mushrooms. The present proceeding is concerned only with the respondent's plant located 7.4 miles from the city limits of Denver, Colorado, and near Broomfield, Colorado, herein called the Broomfield plant .s During 1939 the respondent's total gross sales of mushroorris amounted in value to slightly less than $200,000, of which more than 50 per cent was made to customers located outside the State of Colorado. The respondent's principal out-of-State customers are located in Texas, Oklahoma, Kansas, and Nebraska, and the sales to such customers consisted of mushrooms shipped from the re- spondent's mushroom cannery located at its Brobmfield plant. Dur- ing the same period the respondent purchased a substantial portion of the materials, supplies, and equipment used in the growing, proc- essing, canning, and packing of its products outside the State of Colorado, including some manure hauled in its own trucks from the State of Wyoming. The respondent employs approximately 99 employees in its mush- room growing and canning operations. II, THE ORGANIZATION INVOLVED United Cannery , Agricultural, Packing and Allied Workers of America, United Mushroom Workers Local Union No. 300, is a labor. organization affiliated with the Congress of Industrial Organi- zations. The Union admits to- membership employees of the re- spondent. III. TIIE EMPLOYEES, WITHIN THE MEANING,OF SECTION 2 (3) OF THE ACT The respondent contends that all of its employees, and particularly Dan Vigil mentioned in the complaint, are engaged as agricultural 8 The respondent also maintains within the city limits of Denver , Colorado , 5 mushroom houses, covering ippr6ximatel3, 10 city lots and containing approximately 40,000 square feet of hod curfaeo 358 DECISIONS OF NATIONAL LABOR RELATIONS BOARD laborers, and therefore are not employees within the meaning of the Act." The respondent 'maintains at the Broomfield plant 39. specially constructed houses for the growing of mushrooms. Each house is approximately 66 feet long, 23 feet wide, and 14 feet high, and contains 16 mushroom beds arranged in 2 tiers of 8 shelf-beds each, the total bed surface of all the houses aggregating approximately 280,000 square feet. The mushroom houses are artificially heated in the winter and artificially cooled and moistened in the summer, and the air within the houses is kept in constant circulation by the use of electric fans in order to maintain a uniform temperature above all of the shelf-beds. Also the beds themselves are watered whenever they become dry. In addition to controlling the conditions under which the mushrooms are grown, the respondent so arranges the output of the mushroom houses that mushrooms are picked daily, and the respondent thus obtains a steady and constant supply of mushrooms throughout the entire year. In order to grow mushrooms a compost, prepared by a process of ,mixing and watering horse manure, earth, and straw for a period of about 30 days, is placed in the shelf-beds inside each mushroom house to a dept of about 6 inches. The mushroom house is then closed,, and the heat thrown off by the compost raises the temperature inside the house to about 135 degrees, at which point the temperature is allowed to remain for several days in order to drive to the surface all insects in the compost. These insects are then killed off by sul- phur and cyanide fumes. Thereafter, the temperature is allowed to drop to 90 degrees, and mushroom spawn is placed in the beds, which in about 3 weeks become matted with mycelium. Each bed is then cased over with earth about 1 inch in depth and the temperature is thereafter artifically maintained at between 58 and 65 degrees. In about 57 days from the time the shelf-beds are filled, the first mush- rooms are ready for picking. After these are harvested, the holes left by the stems of the extracted mushrooms are filled, and more mushrooms continue to, grow in the same mushroom beds. Several crops or flushes are thus obtained from one filling, the cycle lasting approximately 137 days from the time the shelf-beds are first filled until, they are ready for a new filling. As noted above, the filling of the beds in the various houses is staggered at such intervals that the, respondent obtains a constant supply of mushrooms throughout the entire year. 9 Section 2 (3) of the Act provides, in part : The term "employee" shall include any employee, . . . but shall not include any individual employed as an agricultural laborer. GREAT WESTERN MUSHROOM COMPANY 359` In short, the growing of mushrooms by the respondent is carried on under artificial conditions more like cultivation in green houses than on a farm. The mushrooms are grown in enclosed houses under controlled conditions of heat and moisture. The crop is not seasonal, but is so regulated by the respondent as to maintain a constant output of mushrooms throughout the year. For these reasons, the growing of mushrooms and the work incidental thereto is not agri- cultural in nature in the common understanding of the term 10 With respect to the services performed in processing, canning, packing, marketing, and shipping of mushrooms, such work is not agricultural in nature, nor is it, in view of what has been stated above, incident to ordinary farming operations." We find that employees of the respondent engaged in the growing, processing, canning, packing, marketing, and shipping of mushrooms are-employees within the meaning of Section 2 (3) of the Act. IV. THE UNFAIR LABOR PRACTICES A. Background On December 16, 1938, the Union filed with the Regional Director a charge, and on April,4, 1939, an amended charge against the re- spondent. On July 15, 1939, the Board issued a complaint against the respondent alleging, in substance (1) that the respondent had discharged and otherwise discriminated against certain named em- ployees because they joined the Union and otherwise engaged in con- certed activities, and (2) that the respondent had urged, persuaded, and warned its employees to refrain from joining or retaining mem- bership in the Union. Subsequently, on July 29, 1939, a compromise settlement agreement was entered into by the Union, the respondent, and the Regional Attorney providing inter alia, for the reinstate- ment of various employees and the posting of notices. Thereafter the Union withdrew the charges and the Regional Director issued an order dismissing the complaint. 12 On September 30, 1939, the respondent discharged Dan Vigil, one of the employees alleged in the first complaint to have been discrim- inated against by the respondent in respect to the terms and con- 10 Matter of The Park Floral Company and United Greenhouse and Floral Workers Union No. 510 of the United Cannery, Agricultural, Packing and Allied Workers of America. affiliated With the Congress of Industrial Organizations;- 10 N L R B 404, and cases cited therein ; also see Great Western Mushroom Company V Industrial Commission, 82 P (2d) 751 (Colo. 1938), in which the employees of the respondent were held not to be agricultural laborers, within the meaning of the Colorado "Employment Act " u See footnote 10, supra. 31 See footnote 6. supra. 360 DECISIONS OF NATIONAL LABOR RELATIONS BOARD •ditions of his employment.',' Thereafter, on October 2, 1939, the Union filed another charge with the Regional Director, which forms the basis of the instant proceedings. B. Interference, restraint, and coercion Several years prior to the hearing, there was a strike among the em- ployees at the Broomfield plant at which time the respondent lost "a lot of mushrooms." 'Thereafter, the respondent -required each em- ployee-tenant of the 25 dwelling houses owned by the respondent to agree to defer all strike action until the'mushrooms on the beds were harvested, a period requiring, as noted above, as long as several months. On November 20, 1938, certain employees of the respondent attended an organizational meeting of the Union, at which time approximately 25 employees joined. Because of the Union's organizing activity at- this time, Charles W. Savery, president of the respondent, approached each of the various employee-tenants and asked them, individually, if they still agreed, in the event of a strike, "to finish all the mushrooms that were on the beds before they went out." Savery testified that the respondent required such a deferred-strike agreement if the employee- tenant was to receive free rent. The record discloses that the employee- tenants were already receiving free rental as, compensation for wage reductions first instituted in 1929. Moreover, nowhere in the record does it appear that the employee-tenants were given the alternative of paying rent if they refused to consent to the deferred-strike agree- ment. Under these circumstances, we conclude that the privilege of continuing to occupy a company house, and not the free rental thereof, was the eolisideration for the deferred-strike agreement. Regardless of the consideration for the deferred-strike agreement, however, such an agreement constituted an interference with the rights guaranteed by the Act. An agreement not to strike for a period as long as several months is, on its face, a limitation on the exercise of the right'to en- gage in concerted activities. Such a limitation, moreover, interferes with the-right to self-organization since it eliminates one of the most effective means to achieve the ends for which organization is designed. The limitation upon the right to strike may be unobjectionable when reached as a result of collective bargaining, for-in such a case, by hypothesis, organization has been attained and the conclusion of the agreement is itself an exercise of the right to engage in collective activities. But the imposition of such a limitation upon the individual employee constitutes not only a form of coercion resulting from an inequality of bargaining position, but also an obstruction, at the out- 18 The complaint and settlement ac relating to the alleged discrimination against Dan vigil in regard to hire and tenure of employment are discussed in Section IV C, infra ' , GREAT WEISITERN MUS 1ROOM COMPANY 361 set) to the development of effective organization. Accordingly, to the extent that the respondent thus deprived its employees of the rights guaranteed by the Act, it has engaged in an unfair labor practice." For a long time prior to the events of November and December 1938,. it had been the custom of Savery to make small loans from his per- sonal funds to the employees of the respondent.15 After the organiza- tional activity of the Union among the respondent's employees, Savery refused to make such loans to union members. Although testifying on direct examination that he continued to make such loans to both, union and non-lmiori members without discrimination, upon further examination Savery admitted that in the fall of 1938, "while they were having this election le and trying to form the Union and so forth ...,"' he told union members that "while the condition was in the upset state they were in I wouldn't want to loan them," and that, after charges were filed against the respondent in December. 1938 and April 1939, he again informed applicants for loans that "while this matter was in colitroversy" he, would not make any loans to "C. I. 0. mem- bers." Savery further testified that in the fall of 1939, and before the charge in the instant proceeding was filed, he refused to give any loans -to the union members reinstated pursuant to the settlement agreement. The respondent contends that it should in no event be held liable- for Savery's conduct with respect to these loans, as such loans were not part of the respondent's corporate, transactions. Although, as stated above, Savery made these loans from his own funds, the trans- actions took place at the respondent's office at the Broomfield plant, and repayment of the loins was made through the respondent's office by deductions from the employee's pay envelope. Savery stated that this procedure was not employed in regard, to mercantile debts incurred by the respondent's employees. Savery, as we- have stated above, was an officer of the respondent and directly engaged in the management of the respondent's business. It is plain from the man- ner in which the loans were made and repaid that so far as the em- ployees knew, the loans were made by the respondent. Although the board of directors of the respondent knew of these loan transac- tions, they have never disaffirmed or otherwise taken any action with reference to them. Under these cirmumstances, we find that the 14 See Matter of Douglas Aircraft Co, Inc, Northrup Dscisien and International Union United Automobi e Workers of America, Local 229, 18 N L R B 43 , and cases therein cited 15 In addition to his position as president of the respondent, Saveiy is actively engaged in the management of the respondent and owns 65 .000 shaies of the common stock Under these circumstances , it is not eurpri ing that the respondent is referred to-in the record as the "Saveiy Mushioom Company." 16 Referring presumably to a consent election which had been set by the Regional Director The elcetion was never conducted - 362 DECISIONS OF NATIONAL LABOR RELATIONS BOARD respondent is responsible for the conduct of Savery with respect to such loan transactions. We find that the respondent, by the aforementioned activities of Savery in requiring each of the respondent's employee-tenants to consent to a deferred-strike agreement'"' and in withholding loans to various employees of the respondent for the reason they were members-of the Union, has interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. C. The discharge of Dan Vigil The complaint alleges that the respondent discharged Dan Vigil on September 30, 1939, and at all times thereafter refused to rein- state him because he'joined and assisted the Union and engaged in concerted activities for the purposes of collective bargaining and other mutual aid and protection. In its answer the respondent ad- mitted that it discharged Vigil but alleged, in substance, by way of an affirmative defense, that Vigil was discharged because he slackened in his work and caused dissension and discontent among other em- ployees of the respondent,by persistently boasting to them that the 'Board would restore him to his former job from which the respondent had transferred him in 1938. Vigil was continuously employed by the respondent from 1927 until his discharge on September 30, 1939, except for a period of several months' illness in 1932. Vigil's illness was caused by the ammonia fumes arising from the manure pile on which he was ,,work- ing in the preparation of the compost. After his resumption of work in 1932, Vigil was transferred and his duties were changed to those of carrying earth into the mushroom houses. Vigil joined the Union at the organizational meeting held on November 20, 1938, and was elected vice president. On the day following Vigil's affiliation with the 'Uhion, he was approached by Savery who remarked, according to the testimohy of Vigil, "I'heard you was going to strike here." Upon Vigil's denial, Savery then stated, "You are a union member. I heard you were a; union member." Vigil replied, "Yes, I am a union member, but I don't feel like making any strike," to which Savery said, "Well, all right," and walked away. This incident was uncontroverted and we find that Savery made the foregoing statements. Shortly thereafter, in December 1938, Savery asked Vigil to vacate the respondent's dwelling house which he occupied at the Broomfield "The respondent annexes to its exceptions herein a copy of a lease which it now requires its employee -tenants to sign and which contains , as one of its provisions , a modification of the deferred-strike agreement. We accept as part of the record herein the lease thug proffered by the respondent. See Section VI, infra. GREAT WESTERN MUSHROOM COMPANY 363 plant, and the latter, moved in January 1939. Savery testified.that, before being requested to move, Vigil was asked along with the other employee-tenants, as noted above, whether or not he would continue to work on the mushroom beds in case of a strike , to which Vigil answered in the negative . Vigil denied that he was asked any such question, and testified that Savery asked him to vacate the house, remarking . . '. "I can't depend on union people . They might strike.' We believe , as did the Trial Examiner , that it is unnecessary to resolve this conflict in the evidence, since Savery's own testimony showed that, whether or not he so indicated to Vigil , he had in mind Vigil's possible conduct as a member of the newly organized Union when he asked Vigil to vacate the Company house. About the same time Vigil was asked to vacate the respondent's house, Savery changed Vigil's duties from that of carrying earth, as noted above, to that of turning manure in the preparation of the compost. This work is less desirable than that of carrying earth because of the deleterious ammonia fumes arising from the manure pile, which, as noted above, had been the cause of Vigil's previous illness. The respondent contends that it changed Vigil's . duties only in order to relieve another employee whose health was injured by the ammonia fumes. Vigil testified without contradiction that, whereas it was usual for other employees on the manure pile to be transferred to other work every several days, after his transfer to that job he never received relief, except when the mushroom houses were filled. In this respect Savery testified that there were 20 to 22 employees within the general classification known as fertilizers, al- though only 5 men worked on the manure pile; that it was the prac- tice of the respondent to switch those working on the manure pile to other duties within the classification of fertilizers ; and that there was no question that Vigil could do any of the work within the classification. In view of the foregoing testimony , and in view of the fact that Vigil's duties were changed soon after he joined the Union and about the same time as his eviction from the respondent's dwelling house , we find that the shift in the nature of Vigil's duties was a further manifestation of the respondent's hostility toward Vigil because of the latter's union activity. , On July 15, 1939, as noted above , the Board, upon charges duly filed by the Union, issued a complaint against the respondent. The complaint alleged, inter alia, that the respondent in December 1938 transferred Vigil to less desirable work, and on or about January 1, 1939, evicted him from a house, the rent of which had constituted part of Vigil's wages, all of the above actions being taken because Vigil joined and assisted the Union and engaged in concerted activities with other employees for the purpose of collective bargaining and 364 DECISIONS OF NATIONAL LABOR RELATIONS BOARD other mutual aid and protedtion.1s On July 29, 1939, as noted above; the respondent, the Union, and the Board, through its Regional Attorney, entered into a compromise settlement agreement, which contained, however, BO provision' or reference to the alleged dis- crimination in respect to Vigil." On September 30, 1939, Vigil was discharged. Vigil testified that at the time of his discharge Savery, said, "I am through with you. Go and see what the Union can do for you." Although Savery 'did not state what reasons were given to Vigil at the time for his dis- charge, Savery admitted having made the above statement, but only after Vigil threatened to complain to the Union. As to the reason for having discharged Vigil, Savery testified at the hearing that Vigil was constantly "condemning the manage- meat . . . and his work was not so good as it had been before," so that when it became "necessary to let certain peen go," Vigil was discharged: With regard to the alleged slackening on his job, Vigil testified, without contradiction, that his work had never been criticized by the respondent. In fact, according to his testimony. Savery admitted at a conference held at the office of the Regional Attorney in October 1939 that Vigil's work had always been good but added that Vigil had been discharged because of his demoralizing effect upon the other employees at the Broomfield plant. Savery did not unequivocally deiiv the conversation attributed to him at this conference but stated that "I thiilk I said as a general thing over the years his [Vigil's] work' had been good" and "I don't think I said that [Vigil's effect upon the morale of the-other employees] was the only trouble. I think he [Vigil] did do that in addition to other things." Among those present at this conference were two union representatives, Clyde Johnson and Frank Price, both of whom corroborated, in sub- stance, the version of Vigil. Under these circumstances, we find, as did the Trial Examiner, that Savery made the. statements' at- tributed to him at the above-mentioned conference. We find that the evidence does not support the respondent's' contention that Vigil was incompetent. - 18 It should be noted that the eviction did not carry with it a discharge from the respond- ent's, employment - '9 The agieement provided for the reinstatement of, 'plus a monetary award to, seven named employees. and the posting f[ii a period of 00 consecutive days of a notice to the effect that the respondent intended 'to comply 'with the intent of the Act," as set forth in Sections 7 and 8, and specifically notifying "its employees that they have the right to loin United Mushroom workers Local Union No 300, or any other labor organization, and that it will not discnnunate in regeid to hire and tenure of employment of any employee because of membership in that organization, or any other labor organization" The agree- ment further piovided "that the Union will withdraw the charge and the complaint in this matter will be dismissed upon conipliance.witli this agieement On January 11, 1940, the Board, by the Regional Director, issued its order dismissing the complaint GREAT WESTERN MTJSHROOM COMPANY. 365 The respondent's explanation of its contention that Vigil was con- stantly "condemning the management" consisted of testimony by .Savery that Vigil, over a period of almost 10 months, had complained i wo or three tunes in regard to the type of fork used on the manure .pile, and about six times in regard to his having been shifted to that kind of work. In addition, Savery indicated that Vigil was ruin- ing the morale of the other employees by his constant complaining to them of the respondent's unfairness in changing his job and by evict- ing him from the company house. Vigil denied that he caused the respondent any trouble or that he had condemned the management either to the respondent or to its employees. He admitted that on one occasion he suggested to Lawrence A. Hughes, outside foreman ,of the' respondent, that the work might be clone easier and faster with a different type of fork. According to the uncontroverted testi- mony of Vigil, Hughes conceded that a better job could be done with a larger fork, but that Savery was opposed to any change. In .this respect it is to be noted that both Johnson and Price testified in substance that, at "the afore-mentioned conference at the office of the Regional Attorney, Savery's only illustration of Vigil's alleged demoralizing influence upon the respondent's employees was his ask- ing on one or two occasions for a larger fork. In the light of the fore- going testimony, we believe that the above reasons ascribed to Vigil's discharge were not, in fact, the motivating cause of the respondent's action. , - The respondent further contends, as noted above, that Vigil was discharged because "it was necessary to let certain men go." Sub- sequent to the discharge, however, the respondent hired additional employees, including those to do the specific type of work that Vigil had been doing. Upon being asked on direct examination why he refused to reinstate Vigil, Savery replied that "it was a case of having more men then we need and we let the poorest ones go." As we have found above, however, the respondent did not show in what respects Vigil was an unsatisfactory employee. We are of the opinion, as was the Trial Examiner, that the reason for Vigil's discharge lay in his union affiliation and his adherence to the Union despite the respondent's expressed antagonism to it. We find that the respondent discharged Dan Vigil on September 30, 1939, and has at all times thereafter refused to reinstate him because he joined and assisted the Union and engaged in concerted activities for the purpose of collective bargaining and other mutual aid and protection. We further find that by such acts the respondent interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. 366 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Vigil received no work and has earned no money between the time of his discharge and the hearing. He, desires reinstatement. D. The evictions The amendment to the complaint alleges in substance that the respondent on or about April 19, 1940, evicted Telesfor Vigil and family,' including Elmer Vigil, from a company-owned house, the free rental of which constituted part of the wages of Telesfor and Elmer Vigil, because Elmer Vigil had testified at the earlier hear- ing, because Dan Vigil did not abandon the charge against the re- spondent, and because Elmer and Telesfor are members of the Union. relesfor Vigil, the father of both Elmer and Dan Vigil, had con- tinuously occupied a company-owned house from the time he was first employed by the respondent 13 years ago, until his eviction on April 19, 1940. Elmer Vigil lived at home with his parents in the ,company-owned -house and has for the past 5 years been employed by the respondent as a truck driver, as well as having been employed by the respondent at various times previous' thereto. Both Elmer and Telesfor Vigil are members of the Union. On March 18, 1940, the first day of the earlier hearing, Elmer Vigil, testified as a witness for the Board as to certain, ac,ivities of the respondent, which, as noted above, we have found to be unfair labor practices within the meaning of the Act. At this time Elmer Vigil also testified'that about 3 or 4 weeks previous to the earlier hearing, Savery had stopped him as he was driving one of the re- spondent's trucks and remarked, "I hear your brother has a case against, me in the Labor Board." Elmer Vigil replied, "Well," that case has been there ever since you- fired him." Thereupon Savery threatened, "Well, if he is trying, to make trouble, I will have to fire .the whole family, let the whole family go." Elmer Vigil's testis mony in respect to the above statements .was not controverted and we accept it as true. , In addition to his testimony at the earlier hearing, Elmer` Vigil -testified at the reopened hearing that on the day immediately pre- ceding the earlier hearing Savery warned him of the consequences of further prosecution of Dan Vigil's case before the. Board. Although Savery denied the incident, in view of his anti-union activi- ties as described above, we find that he made the statement attributed to him by Elmer Vigil. On March 20, 1940, the day immediately following the close of the earlier hearing, Savery handed Telesfor Vigil a letter, addressed to Telesfor and Elmer Vigil, notifying them to vacate the respondent's house, and emphasizing in particular that "we are insisting that you move off the premises on account of the nuisance that the [Vigil] 'GREAT WESTERN MUSHROOM COMPANY 367 children have become." No further explanation was- given by Savery at this time.' On April 19, 1940, Telesfor Vigil and family vacated the company-owned house. - The respondent contends, as indicated in the letter referred to above, that it was solely "on account of the children" that Telesfor Vigil was asked to move, mentioning in particular, Richard-and Don- ald Vigil, ages 9 and 10. At the hearing Savery testified that he had received a great many complaints concerning Richard and Donald, that these children were continually stealing things, including wood from the respondent's premises at the Broomfield plant, and that they were "continually being in fights with other children, and maligning the people that lived out there." With regard to the complaints concerning Richard and Donald, the respondent introduced as witnesses Virgie Montgomery, one of the two teachers at the district school attended by children of `the employee- tenants at the Broomfield plant; Claude R. Ogelsby, a copartner of Savery in the operation of the store at which most of the families-at the Broomfield plant buy their groceries; and Nick Martinez, fore- man and employee-tenant at the Broomfield plant. Montgomery testified that she had difficulty with Richard and Don- ald Vigil because they fought with the other children, and, according 'to the accusations of the other children, wrote "vile words" on mail -boxes, and committed acts of indecent exposure whenever the teacher left the room. In spite of the fact that the fighting and the marking of the mail boxes had been occurring for some time, Montgomery con- sidered only the acts of indecent exposure as serious enough to call to the attention of Savery, in his capacity as a member of the school board. Accordingly, on or about the first part of April 1940, Mont- gomery reported the matter to Savery who gave Richard and Donald "a 'strong talking to." Thereafter, Montgomery had no further trou- ble from them. That this complaint by Montgomery even remotely figured iii the cause of the respondent's. eviction of Telesfor Vigil from the company-owned house may well be doubted in light of the follow- ing testimony elicited-by-counsel for the Board: Q. [Mr. Kuelthau] And that complaint [by Montgomery] took place after you notified them to move [on March 20, 1940] ? A. [Mr. Savery] No, it took place before they were notified to move. Q. Didn't you hear Mrs. Montgomery testify it took place about the first of April? A. There was more than one complaint by the teachers about the boys. Q. Did she testify about more than one? A. I don't know whether she did or not. :368 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Q. Didn't you hear her? - A. She made more than one complaint. - Q. What were the other ones about? - A. There was one complaint made almost a year ago, about 'this boy's taking two dollars from down there. , Q. And this other one about the first of April? A. I think so. Q. And that is all? X. That is all the complaints I have had from the school teachers. ' Ogelsby testified that for the past year he had considerable trouble with Richard and Donald Vigil in regard to stealing in his store, and that when he would reprimand them, they would run out of the door and shout in Spanish at him, which he "rather imagined was sort of uncomplimentary." Ogelsby also testified, however, that other chil- dren had been guilty of stealing, and that he had been warned about such pilferings by children when he first moved into the store 5 years ago. Ogelsby stated that he never spoke to Telesfor Vigil about Richard and Donald, and tltnat he merely casually mentioned the mat- ter to Savery as he did not desire to impose his business problems upon the latter. Martinez,testified'that in the spring of .1940,- possibly. April, he had occasion to. protest to the school teacher and Savery about acts of in- decent exposure by Richard and Donald toward his young daughters. Martinez, however, was not certain whether or not this was the same 'incid'ent of which Montgomery had testified, as noted above. In addition, Martinez testified-that on several other "occasions he had com- plained to Telesfor Vigil about the conduct of the latter's children, including one incident about a year previous, at which time one of the Martinez children had received a beating at the hands of the Vigil children. Both Elmer and Telesfor Vigil denied that Martinez had ever complained to them about the Vigil children, and added that it was common for all the children at the Broomfield plant to fight and shortly thereafter to play amicably together again. Savery likewise admitted that he,had' seen numerous other children `pick a fight." In the light of the^entire record, we believe that the respondent has resorted to the afore-mentioned peccadilloes of two mischievous chil- dren, aged 9 and 10 years, to disguise its real motive in the-eviction of Telesfor and Elmer Vigil. In this respect it is to be rioted that the respondent relies upon the testimony of witnesses, who, as noted above, stated that they did not complain to Savery about the Vigil children until after Savery had given Elmer and Telesfor.Vigil-notice to move, or who admitted that the conduct of-the Vigil children, on the whole, was no different from that of the other children in the GREAT WESTERN MUSHROOM COMPANY 369 neighborhood. Moreover, in view of the threats made to Elmer Vigil by Savery in reference to the prosecution of Dan Vigil's case before the Board, we conclude that Telesfor Vigil, after having continuously occupied one of the respondent's houses for 13 years, was immediately, upon the close of the earlier hearing, evicted from the respondent's house because of the activities of Elsner and Dan Vigil in that pro- ceeding. We find that the respondent has, by the eviction of Telesfor and Elmer Vigil, discriminated against them in respect- to hire and tenure of employment and other conditions of employment because of their activities in behalf of the Union, and because Elmer Vigil had given testimony at the earlier hearing, thereby discouraging membership in the Union and interfering with, restraining, and coercing its em- ployees in the exercise of the rights guaranteed to them in Section 7 of the Act. Telesfor Vigil desires to return to the company-owned house. Whereas previously he had received free rental, as noted above, Teles- for Vigil now has to pay $15 per month rent plus the expense of an automobile necessary for transportation to and from the Broomfield plant. V. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE 'We find,that the activities of the respondent set forth in Section IV, B, C, and D, above, occurring in connection with the operations of the respondent described in Section I above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing -commerce and the free flow of commerce. VI. THE REMEDY Having found that the respondent has engaged in unfair labor practices, we shall order it to cease and desist therefrom and to take certain -affirmative action which we find necessary to effectuate the policies of -the Act. We have found that the respondent discharged Dan Vigil because of his membership in and his activities on behalf of a union, thereby .discriminating against him in regard to his hire and tenure of em- ployment. The respondent contends that it does not• have a position in which to reinstate Vigil, because it contemplates in the near future to have the work of preparing the compost done by an in- dependent contractor. it is obvious that until such is the case, con- templated action in this matter can have no bearing upon the Decision and Order herein. We shall therefore, order the respondent to offer 323428-42-vol 27-25 370 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Vigil full and immediate reinstatement to his former or to a sub- stantially equivalent position. We shall further order the respondent to make Vigil whole for any loss of pay he has suffered by reason of his discriminatory discharge by payment to him of a snm of money equal to that which he normally would have earned as wages from the date of his discharge to the date reinstatement is offered to him, less his net earnings during said period.20 We have found that the respondent evicted Telesfor Vigil and Elmer Vigil from a dwelling house owned by the respondent because of their membership in a union and because Elmer Vigil has given testimony under the Act, thereby discriminating against them in regard to their hire and tenure of employment. We shall therefore order the respondent to offer them immediate occupancy of their former or substantially equivalent living quarters in the,company-owned houses on the same terms'afforded other employees.21- We shall further order the re- spondent to make Telesfor and Elmer Vigil whole ,for any losses they have suffered by reason of their discriminatory eviction by pay- ment to them of a sum, of money equal to that which they have had to pay as rental for new dwellings from the date of their eviction to the date reinstatement is offered to them, plus such additional expenses as they have incurred during said period, as a direct result of said eviction. 20 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 else- where than for the respondent , which 'would not have been incurred but for his unlawful -discharge , and the consequent necessity of his seeking employment elsewhere See Matter of Crossett --Lumber'Company and United Brotherhood of Carpenters and Joiners of America, Lumber and Sawmill Workers Union, Local 2590, 8 N L. R . B. 440. Monies received as borne-relief and unemployment insurance benefits , are not considered as earnings, and, therefore, are not deductible Matter of Pennsylvania Furnace and Iron Company and Lodge No 1328, International Association of Machinists , 13 N L R B 52 . Monies received for work performed upon Federal , State, county , municipal , or other work-relief projects are not considered as earnings, but as provided below in the Order, shall be deducted from the sum due the employee , and the amount theieof shall be 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 ; Matter of Republic Steel Corporation and Steel Workers Organizing Committee, 9 N L R. B 219 enf'd as modified as to other issues, Republic Steel Corporation v N. L. R B, 107 F.'(2d) 472 ( C. C A. 3). 21 The respondent contends in its exceptions to the Proposed Findings and Order that,. in view of the fact that it now requires from each employee -tenant a written tenancy contract in which the employee-tenant agrees, in the event of a strike or other shut-down, "to assist in picking and packing all mushrooms on the beds in the mushroom houses for a period not exceeding thirty days from the beginning of the strike or shut -down " It must necessarily demand such an agreement from Telesfor and Elmer Vigil As noted above, we have found that the original deferred -strike agreement constituted an interference with the rights guaran- teed by the Act That the respondent has made the period more definite as to when the individual employee-tenant may respond to a strike call and has now reduced the oral deferred-strike agreement to a formal lease , does not make the deferred-strike agreement any less an interference with the rights guaranteed by the Act Accordingly , such a midifi- cation of the deferred-strike agreement comes within the purview of paragraph 1 (c) of the Order herein. GREAT WESTERN MUSHROOM COMPANY 371 Upon the basis of the foregoing findings of fact and upon the entire record in the case, the Board makes the following- CONOLusIONs OF LAW 1. United Cannery, Agricultural, Packing and Allied 'Workers of America, United Mushroom Workers Local Union No. 300 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 Dan Vigil, Telesfor Vigil, and Elmer Vigil, thereby dis- couraging membership in a labor organization, the respondent has engaged in and is engaging in unfair labor practices, within the, meaning'of Section 8 (3) of the Act. - 3. By discriminating in regard to the hire and tenure of employ- ment of Elmer Vigil, because he gave testimony under the Act, the respondent has engaged in and is engaging in unfair labor practices, within the meaning of Section 8 (4) of the Act. 4. By interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section _7 of the Act, the respondent has engaged in and is engaging in unfair labor practices, within the meaning of Section 8 (1) of the Act. 5. 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 Rela- tions Act, the National Labor Relations Board hereby orders that the respondent, Great Western Mushroom Company , Adams County, Colorado, and its officers, agents, successors , and assign's shall: 1. Cease and desist- from : (a) Discouraging membership in United Cannery, Agricultural, Packing and Allied- Workers of America, ,United Mushroom Workers Local Union No. 300, or any other labor' organization of its em- ployees, by laying off or discharging any of its employees, or in any other manner discriminating against its employees in regard to their hire and tenure of employment or any term or condition of their employment; (b) Discharging or otherwise discriminating 'against any of its employees because he has given testimony under the Act; (c) Requiring its employee -tenants to consent to a deferred-strike agreement , or any modification thereof , or attempting to enforce said deferred -strike agreement or any modification thereof; 372 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (d) 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 representatives of their own choosing, and to engage in concerted activities for the purposes of collective bargaining or other mutual aid or protection. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act: - (a) Offer to Dan Vigil immediate and full reinstatement to his former or substantially equivalent position, without prejudice to his seniority and other rights and privileges previously enjoyed by him; (b) Make whole Dan Vigil for any loss of pay he has suffered by reason of the respondent's discrimination in regard to his hire and tenure of employment ,- by payment to him of a sum of money equal to that which he would normally have earned as wages from the date of his discharge to the date of the, offer of reinstatement , less his net earnings during such period; deducting, however; from the amount otherwise due to said employee monies received by said employee during said period for work performed upon Federal, State , county, municipal, and 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 governments which sup- plied the funds for said work -relief projects; (c) Offer Telesfor Vigil and Elmer Vigil immediate occupancy of their former or'substantially equivalent living quarters in the com- pany-owned houses without requiring them to consent to a deferred- strike 'agreement or any modification thereof; I (d) Make whole Telesfor Vigil and Elmer Vigil for any losses they have suffered by reason of the respondent 's discrimination in regard to their hire and tenure of employment , by payment to them of a sum of money equal to that which they have had to pay as rental , for new dwellings from the date of their eviction to the date reinstatement is offered to them, plus such additional expenses as they- have -incurred during said period as a direct-'result of said eviction; (e) Give separate written notice , to each of its employee -tenants who has consented to a deferred -strike agreement , that such an agreement is invalid under the National Labor Relations Act, and .will therefore be 'discontinued as a term or condition of employment and will not in any manner be enforced or attempted to be enforced; (f) Post 'immediately in conspicuous places throughout the Broom- field plant, and maintain for a period of at least sixty (60) consecu- tive days ' from the date of posting, notices to its employees stating : ( 1) that the respondent will not engage in the conduct from which GREAT WESTERN MUSHROOM comPANY 373 it is ordered to cease and desist in paragraphs 1 (a), (b), (c), and (d) of this Order; (2) that the respondent will take the affirmative action required by paragraphs 2 (a), (b), (c), (d), and (e) of this Order; and (3) that the respondent's employees are free to become or remain members of United Cannery, Agricultural,, Packing and Allied Workers of America, United Mushroom Workers Local Union No. 300, and that the respondent' will not discriminate against any employee because of membership or activity in that organization; (g) Notify the Regional Director for the Twenty-second Region in writing within.ten (10) days from the date of this Order what steps the respondent has taken to comply herewith.