NATIONAL L. RELATIONS BOARD v. Security W. & Cold S. Co.

• Decision Date: 17 August 1943
• Docket Number: No. 10182.,10182.
• Parties: NATIONAL LABOR RELATIONS BOARD v. SECURITY WAREHOUSE & COLD STORAGE CO.
• Court: U.S. Court of Appeals — Ninth Circuit

136 F.2d 829 (1943)

NATIONAL LABOR RELATIONS BOARD v. SECURITY WAREHOUSE & COLD STORAGE CO.

No. 10182.

Circuit Court of Appeals, Ninth Circuit.

August 17, 1943.

Robert B. Watts, Gen. Counsel, Ernest A. Gross, Associate Gen. Counsel, Howard Lichtenstein, Asst. Gen. Counsel, Louis Libbin, William J. Avrutis, and Colonel C. Sawyer, Attys., N. L. R. B., all of Washington, D. C., for petitioner.

W. W. Jacka, of San Jose, Cal., and Rogers & Clark, Webster V. Clark, Leslie C. Rogers, and John H. Painter, all of San Francisco, Cal., for respondent.

Before GARRECHT, HANEY, and HEALY, Circuit Judges.

GARRECHT, Circuit Judge.

Respondent is a California corporation with business offices at San Jose, California. Its principal business is cold storage and pre-cooling of fruits and vegetables and the manufacture and sale of ice. It has a plant at San Jose, also one at Santa Clara, and in addition operates by lease about ten field warehouses at various points in California. Respondent hires about forty regular employees during the entire year. During the "cherry season" which extends from the latter part of May for about a month, respondent employs a considerable additional number of seasonal workers. It again engages a number of seasonal employees from the latter part of July to the end of the year in the business of receiving, storing, cooling and shipping pears, grapes, other fruits and some vegetables. During the year 1938 the total peak force at both plants was 277 men and in 1939 it reached 351.

The International Longshoremen's and Warehousemen's Union, Local 1-6, affiliated with the Congress of Industrial Organizations hereinafter called the union filed charges and amended charges against respondent. The National Labor Relations Board issued its complaint on December 27, 1939, alleging that respondent had engaged in and was engaging in unfair labor practices within the meaning of § 8(1), (2) and (3) of the National Labor Relations Act, 29 U.S.C.A. § 158(1-3).

The Trial Examiner filed his Intermediate Report on June 14, 1940. He found that respondent had engaged in and was engaging in unfair labor practices within the mean of § 8(1) and (2) of the Act, with respect to the formation and administration of Security Employees' Association, herein called the Association, a labor organization. Because the Trial Examiner declined to believe the testimony of certain witnesses he further found that respondent had not engaged in and was not engaging in unfair labor practices in other respects enumerated in the complaint.

Later the matter came before the Board which found as did the Trial Examiner that respondent had dominated and interfered with the formation and administration of the Association, and had contributed support thereto within the meaning of § 8(2); but went further and based upon the testimony which the Trial Examiner had expressly discredited found that the respondent had discouraged membership in the union by discriminating in regard to hire and tenure of employment of thirteen employees, within the meaning of § 8(3) and that it had interfered with, restrained, and coerced its employees in the exercise of their rights guaranteed in § 7 of the Act, 29 U.S.C.A. § 157, thereby violating § 8(1). The Board further found that a strike commencing August 25, 1939, was caused by respondent's unfair labor practices.

The Board ordered respondent to cease each of the specified unfair labor practices; that it withdraw recognition of the Association; and that it offer employment with remedial back pay to those discriminated against; that it offer reinstatement to the striking employees, placing those for whom employment is unavailable upon a preferential hiring list; and that it post appropriate notices.

That the Act is applicable to respondent's business is not questioned here.

The officers and supervisory employees most frequently referred to in the evidence are J. S. Patton, president; George A. Miller, superintendent; Quintin Johnstone, superintendent of the Santa Clara plant; George H. Ballantyne, assistant secretary and manager; G. R. Beard, assistant superintendent; W. W. Jacka, attorney; F. M. Byl, another assistant superintendent; Stenger, Gates, Elderton, Purdy and McCormick, all foremen.

Among the employees who were witnesses and whose testimony is herein particularly referred to were Messrs. Murphy, Burkhardt, Tomlinson, Flores, Alvarado, Evatt, Christensen, Gularte, Nunes, Perry, Frayer, Hesse, Kelly and Dietrich.

Domination, Interference with and Support of the Association in Violation of § 8(1) and (2).

An active campaign to have respondent's employees join the Warehousemen and Cereal Workers' Union, Local 38-44 of the International Longshoremen's Association and an AF of L affiliate, herein called the I.L.A., was staged during March, 1937. To circumvent the organization of its employees by this or any outside labor union respondent's officials and supervisory employees brought about the organization of the Association whose policies and activities were directed and dominated by these officials and supervisory employees.

Superintendent Miller announced to the assembly of employees that President Patton thought that employees of respondent at the different plants should form one association. He said petitions for the formation of such association would be made available for signatures. Thereafter, Assistant Superintendent Beard, Shipping Clerk Green and Foreman Stenger drafted a petition which was circulated. Assistant Superintendent Byl secured most of the signatures at the Santa Clara plant and Assistant Superintendent Beard was active in soliciting the members to sign at the San Jose plant. Other supervisory officials and foremen were also active on behalf of the Association. The Association was organized with the assistance of the respondent's attorney. Beard, Byl and Purdy, all employed by respondent in a supervisory capacity, were elected president, vice-president and secretary-treasurer respectively. Three of the four men appointed on the committee to formulate by-laws and four of the five men appointed as an arbitration board to handle grievances likewise held supervisory positions with respondent.

These facts are substantiated principally by the testimony of witnesses Murphy and Burkhardt. They were contradicted by Miller and other officers of respondent. The Board believed Murphy and Burkhardt. Foreman McCormick testified that Byl solicited him for his signature, saying that the Association was being organized "so we won't have to go into a union."

Supervisory employees completely dominated this company Association. They prepared the by-laws and submitted them to Patton, Ballantyne and Secretary Dodson, and reported to the Association that "representatives of the company expressed the attitude as being extremely favorable to the employee's association and the laws i.e. by-laws." The Association met mostly on respondent's property and paid no rent. Through its Arbitration Board the Association negotiated with respondent from time to time but did not succeed in obtaining a signed agreement in any matter relating to wages, hours or seniority or other working condition although respondent did issue a statement or write a letter setting forth its policies in respect to various demands. The Board found that the plan of the Association originated with respondent's officers and that by means of the Association respondent intended to prevent the organization of its employees by any outside labor union.

Murphy testified that Beard told him to sign the petition for the company association and that if he did not he could expect little seasonal employment. Tomlinson testified that Beard and Elderton said substantially the same thing to him. The making of the statements was denied. The Board believed Murphy and Tomlinson. With respect to the Santa Clara plant, employees Smith and Flores testified that Byl, assistant to the superintendent, made substantially the same statements to them. Byl denied it. The Board believed Smith and Flores. Subsequently, Murphy and Burkhardt were discharged. Witness Tomlinson, an employee, testified that after this discharge Dodson gave Miller a petition to be signed by the employees stating that they refused to work with Burkhardt and Murphy, that Miller showed the document to him and that subsequently Dodson took up the statement, saying that respondent's attorney had advised respondent not to prepare the statement. Miller and Dodson denied that this document was as claimed by the witness but said it was an explanation as to why they subsequently reinstated Murphy and Burkhardt, but the Board believed Tomlinson. As corroborating Tomlinson it was testified that after the matter related by him had occurred Beard, Purdy and other supervisory officers of respondent sought to accomplish the same purpose through action by the Association.

Based upon these facts the Board found that respondent's supervisors and foremen dominated the policy of the Association, interfered with its administration and its affairs in violation of Section 8(1) and (2).

The Act was violated by respondent's causing the formation of the Association, by interfering with its administration and by contributing to its support. "It is the purpose of the statute to see that the employer does not interfere or intrude into the affairs of the employees." Rapid Roller Co. v. N. L. R. B., 126 F.2d 452, 457; N. L. R. B. v. Newport News Shipbuilding & Dry Dock Co., 308 U.S. 241, 248, 250 and 251, 60 S.Ct. 203, 84 L.Ed. 219; N. L. R. B. v. Grower-Shipper Vegetable Ass'n, 9 Cir., 122 F.2d 368.

Interference, Restraint and Coercion.

In March, 1937, witnesses Burkhardt and Murphy, regular employees of respondent, and Tomlinson and Evatt, seasonal workers, joined the I.L.A. About that time, Miller, respondent's superintendent in charge of cold storage operations at San Jose, told Murphy, so Murphy testified,...