NLRB v. Sebastopol Apple Growers Union

• Decision Date: 19 August 1959
• Docket Number: No. 16117.,16117.
• Citation: 269 F.2d 705
• Parties: NATIONAL LABOR RELATIONS BOARD, Petitioner, v. SEBASTOPOL APPLE GROWERS UNION, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

269 F.2d 705 (1959)

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. SEBASTOPOL APPLE GROWERS UNION, Respondent.

No. 16117.

United States Court of Appeals Ninth Circuit.

August 19, 1959.

Jerome D. Fenton, Gen. Counsel, Thomas J. McDermott, Associate Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, Melvin J. Welles, Atty., N.L.R.B., Washington, D. C., for petitioner.

Severson, Davis & Larson, George Brunn, Nathan R. Berke, San Francisco, Cal., for respondent.

Before HAMLEY, HAMLIN and JERTBERG, Circuit Judges.

HAMLIN, Circuit Judge.

The National Labor Relations Board has petitioned this Court for enforcement of its order against the Sebastopol Apple Growers Union, hereinafter called respondent, pursuant to Section 10(c) of the National Labor Relations Act, as amended (29 U.S.C.A. § 151 et seq.), herein called the Act.

Respondent, a California cooperative corporation, was engaged in packing, canning and shipping apples and apple products at its plant near Sebastopol, California, and made substantial interstate purchases and sales. The jurisdiction of the National Labor Relations Board and of this Court is not contested.

The facts show that respondent operated a seasonal canning business, the season generally lasting from around the middle to the latter part of the year. Up to the year 1954 the plant was not unionized. In 1954, canning operations began on July 15. About July 28, 1954, the president and business manager of the General Truck Drivers, Warehousemen and Helpers Union, Local No. 980, AFL (hereinafter called the union) called on the general manager of respondent to discuss the organizing of the plant by the union. Activities then commenced by management and employees which culminated in the proceeding before the NLRB.

On August 17, the union filed a petition with the Board requesting an election among respondent's employees. A representation hearing was held on September 19, and on October 4 the Board issued an order that an election be held. The order of October 4 did not set the date for the election, which was subsequently scheduled and held October 19.

Much testimony was produced by each side, the hearings commencing on July 19, 1955, and concluding on October 17, 1955. On March 7, 1956, the Trial Examiner made findings, conclusions and recommendations which were transmitted to and subsequently adopted by the Board.

Respondent preliminarily contends that the Board arbitrarily refused to give effect to a settlement which had been agreed upon by the union and the respondent. On March 9, 1956, the union filed a motion to reopen the record for the purpose of permitting it to withdraw the charge, or in the alternative, to permit it to move to dismiss the complaint, or in the further alternative, to permit it to withdraw the charge without reopening the record. The motion set forth that the union and the respondent since the hearing had been closed had reached an agreement whereby the respondent recognized the union as the collective bargaining agent. The motion further set forth that the union and the respondent had agreed that the alleged discriminatees would be placed upon a preferential hiring list, and the union agreed to obtain waivers from all of the alleged discriminatees with respect to any claims for possible back pay. The motion of the union contained the following language:

"* * * that there is a serious question as to whether any of the alleged discriminatees are, in fact, entitled to back pay, and if so the amounts to which they may be individually entitled are so small as not to warrant further expenditure of time and money for the purpose of determining the amounts, if any, to which they might be entitled."

The motion further alleged as follows:

"6. That the foregoing agreement and arrangement between the Charging Party and the Respondent will and does effectuate the policies of the Act which has as its underlying purpose the stabilization of labor relations and that such arrangements, agreements, procedures and methods of resolving the dispute and the alleged unfair labor practices are compatible with any possible remedy which the Board might possibly order.

"7. That no good purpose would be served and the national policy, as set forth by Congress in the Act, will not be fulfilled if this proceeding continues with the attendant consumption of time through further protracted litigation and the possible filing of exceptions."

Without any hearing being had on the motion of the union, the Board on April 11, 1956, made an order as follows:

"It Is Hereby Ordered that the motion be, and it hereby is, denied because it does not appear that it will effectuate the policies of the Act to close the case on the basis outlined in the motion."

Apparently ever since the parties settled their differences in 1956, there has been no labor trouble. It is now 1959, and this proceeding which the parties themselves desired to terminate is still before the courts, solely because the Board refused to accept the settlement made by the parties themselves.

In N.L.R.B. v. Fansteel Metallurgical Corp., 306 U.S. 240, 59 S.Ct. 490, 497, 83 L.Ed. 627, the Supreme Court noted that "the purpose of the Act is to promote peaceful settlements of disputes by providing legal remedies for the invasion of employees' rights." Five years later, the Supreme Court in Wallace Corp. v. N.L.R.B., 323 U.S. 248, 65 S.Ct. 238, 241, 89 L.Ed. 216, said:

"To prevent disputes like the one here involved, the Board has from the very beginning encouraged compromises and settlements. The purpose of such attempted settlements has been to end labor disputes, and so far as possible to extinguish all the elements giving rise to them."

Much can be said in favor of the position that the Board acted arbitrarily when, without having a hearing upon the proposed settlement, it summarily denied the motion of the union that a settlement agreed upon by the parties be permitted to end the dispute. However, we prefer not to base our decision upon the ground that the Board acted arbitrarily.

Considerable testimony was introduced to the effect that the management was guilty of unfair labor practices in violation of Section 8(a) (1) by attempting to prevent the plant from being organized. Witnesses testified that persons in management positions said to employees, "If the plant would go union, that he plant manager Martini would close it down;" "that he'd closed down his plant in Santa Rosa and he would do the same at Molino if we was to go union;" that the night floor lady said, "Don't get my girls all excited about the union, because * * * if you do * * * you are going to get blackballed from every job around here;" that the same floor lady told employees that they would be laid off if they did not quit talking about the union, and further said, "If you girls think I am tough now, wait; if the union gets in, I'll show you how tough I can be;" that the same floor lady in the presence of a group of employees said that if any of them talked union or signed pledge cards they would immediately lose their jobs, and that if any of them attended union meetings there would be someone there from the company who would come back with their names, which would get to Martini (plant manager) and that they would lose their jobs.

Without going further into detail, from the extensive record it is clear that there was ample evidence upon the whole record to show violations of Section 8(a) (1) of the Act.

We shall, however, discuss separately one matter which the Trial Examiner found to be a violation of Section 8(a) (1).

In the course of the hearing, the General Counsel amended his complaint by adding as an allegation of the violation of Section 8(a) (1) of the Act the adoption by respondent before the commencement of the 1955 season of a new form of application blank for use by applicants for employment. This new form was longer than the one used in 1954 and prior thereto, and called for detailed information about the applicant and his educational and employment history. Included among the questions was the following: "25. To what trade, professional or other organizations are you a member sic: (Do not name any organization which would reveal your race, religion, color or ancestral origin.)" At the conclusion of the form the applicant was required to agree to abide by all present and subsequently issued rules of the company, to authorize past employers to furnish all information "they may have concerning" the applicant, to authorize an investigation of all statements in the application, and to "understand" that in the event of his employment he would be subject to dismissal if any of the information given was false or if he had failed to give any material information requested.

The Board found that by the use of such application form the respondent interfered with, restrained and coerced its employees and applicants for employment in the exercise of the rights guaranteed in Section 7 of the Act. The only testimony concerning how this form happened to be used was given by Mr. Martini, the manager of the respondent. He testified that in May, 1955, he mentioned to someone at an industry meeting that he was about out of employment forms, and since the forms that he had used had been so brief he was going to see if he could find a new form that would be a little more complete. He was advised by others that there was a form which was being generally used throughout the industry, and that thereafter this form was sent to him and he adopted it. It was shown that this same form used by the respondent was used by many other canneries in the industry and that there was no discussion by anyone that the form would be used for the purpose of trying to find out whether people belonged to a labor organization or not. Witnesses produced by the Board also testified that they had signed this form in making their application for work in other canneries.

The Board...