Bonita Fruit Co., Inc.

National Labor Relations Board - Board Decisions

Oct 15, 1945

64 N.L.R.B. 172 (N.L.R.B. 1945)

In the Matter of BONITA FRUIT COMPANY, INC., AND F. H. VAHLSING,
INC. and TEAS FRUIT & VEGETABLE WORKERS UNION, LOCAL 35,
FOOD, TOBACCO, AGRICULTURAL AND ALLIED WORKERS OF AMERICA,'
C.I.O.
Case No. 16-C-1138.-Decided October 15, 194.5
DECISION
AND
ORDER
On February 24, 1945, the Trial Examiner issued his Intermediate
Report in the above-entitled proceeding, finding that the respondents
had engaged in and were engaging in certain unfair labor practices,
affecting commerce; and recommending' that they cease and desist
therefrom and take certain-affirmative action as set forth in the'copy
of the Intermediate Report attached hereto.' • Thereafter, the respond-,
ent, Bonita Fruit Company, Inc., hereinafter referred to as Bonita,
filed exceptions to the Intermediate Report and a supporting brief.
On July 12, 1945, the Board heard 'oral argument at Washington,
D. C. Bonita participated in the argument; Vahlsing and the Union
did not appear.
The Board has' reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and brief, and the entire record in the
case, and hereby adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner, except insofar as they are inconsistent
with our findings and, order hereinafter set forth.
1. The Trial Examiner found, and we concur, that Vahlsing's trans-
fer 6f the Weslaco plant to Bonita resulted in no change in the em-
ployer-elliployee relationship and that, for the purposes of the Act,
Vahlsing and Bonita are so interrelated as to be jointly and severally
liable for the unfair labor practices of both. The Trial Examiner
found, however, that "Vahlsing when confronted with the certifica-
tion of the Union's majority position, with the necessity of negotiating
1 During the hearing , by motion duly made and granted by the undersigned , all formal
papers were amended to substitute this name for the International Union instead of
UCAPAWA.
64 N. L . R. B., No. 33.
172
BONITA. FRUIT COMPANY, • INC. 173
a collective bargaining agreement, and with the imminent probability
that its policy of evasion and delay-would be terminated by positive
action of N. W. L. B., resorted to the subterfuge expressed in its tele-
gram to the N. W. L. B. that it was `closing up our Weslaco branch and,
going out of the fruit business."' Since the reason which prompted
Vahlsing to divest itself of apparent control over the Weslaco plant
was not an issue in the case, not having been alleged in the complaint
or litigated at the hearing, we do not adopt the Trial Examiner's con-
clusion and make no finding as, to the motive which prompted the
transfer. -
2. We concur in the Trial Examiner's conclusion that the respond-
ents' refusal to, rehire the 14 named employees when they applied for
employment for the 1944-1945 season was motivated by their union
membership and activities and therefore constituted discrimination
within the meaning of Section 8 (3) of the Act.2 The record shows,
and we find, that 10 of the afore-mentioned employees personally
applied for and were refused reemployment on the following dates :
Juan Martinez---------------------------- -------- September 1, 1944
Rhoda Colvin---------------------------- a 11,1944
Pauline Coates--------------------------- " 1371944
James (Jim) Walden--------------------- " 14, 1Q44
Tonie Coats------------------------------ " 14,1944
Gladys Shelton--------------------------. " 1871944
Lawrence Lequeux-------------------- :--. - " 26, 1944
Clarence Lequeux------------------------ " 26,1944
May O'Leary----------------------------. October 18,1944
Pearl Magginnis------------------------- " 18,1944
As to the 4 employees who made application for employment by letter,
the record shows, and we find, that the respondents received their
applications and denied them reemployment on- the following dates:
Mattie Finley--------------------------- September 28, 1944
Electra and Jim Green-------------------- October 5, 1944
T. J. Coley------------------------------ 1 " 7. 1944
2 We note a disagreement between the allegations of the complaint and the findings of
the Trial Examiner regarding the date of the discrimination against these employees. The
complaint alleges that the respondent discharged the afore-mentioned employees on or
about Apill 15, 1944, and has since said date refused to reinstate them. The Trial
Examiner did not find that these employees were discharged in April but rather that they
were denied reemployment the following fall. No objection to the Trial Examiner's failure
to find in accordance with the date alleged in the complaint has been raised An examina-
tion of the record shows, and we are satisfied, that all parties understood that the real
issue in the case was whether the respondents' refusal to rehire the employees in question
in the fall of 1944, at the commencement of the 1944-1945 season, was for cause or on
account of their union membership and concerted activities: '-All the, evidence introduced
by the parties was directed to this question. No testimony was adduced by either side
to refute or prove dismissals in April. We shall dismiss the complaint insofar as it alleges
that the afore-mentioned employees were discharged on or about April 15, 1944.
174 DECISIONS- OF NATIONAL LABOR RELATIONS BOARD
The' respondents contend that several of the,einployees'in question
did not make timely applications for employment. They argue that
certain of the applications were made after October 9, 1944, when all'
the packers' positions had been filled; and, that others were made by'
letter too late to permit the, applicants-to report for work before the'
season opened.' While these observations are true, we are of the opin-
ion - that the respondents were in, no way influenced by the factor of
timeliness in their rejection of these applications, which would, in any
event, have been denied in pursuance of the 'respondents' discrimina-
tory plan to refuse reemployment to the packers because of their union
activity. That this plan was fully formulated' prior to the com-
mencement of the season is evident' from the testimony of Ferguson
and Ewing that they 'had indefinitely decided before the start of the
1944=45 season not to engage any of the packers who worked at the
plait the previous season but to hire a' complete new crew of Latin-
Americans.3 The record shows, moreover, that,the respondents had'
not acquired their full complement of packers when the late 'applica-
tions were received and' that they could have reemployed the applicants
<.fter, operations had commenced. -According to the -testimony of
Ewing; the respondents contemplated engaging a' crew of about 40
packers when plans for the 1944-45-season were being discussed and
of the 50 or 60'Latin-Americans brought in for training, only 36 were
hired when the training period closed.- This circumstance, coupled
with Ferguson's announcement to -the trainees that he would hire all
those who proved they could pack, indicates, and we find,-that he
was unable to recruit from this group the requisite number of packers.
Indeed, the record shows- that the respondents did-hire more, packers
after the season got under way.. Blanch Ryan was engaged about a
week or 10 days after the start of operations and, according to the,
testimony of Ewing and Ferguson," several of the packers were re-
placed after the season opened. As of the date of'the hearing, Ewing
testified that the crew of packers at that time was down to 28, although
there was sufficieht work for 36, and that not all of the 28'had been
hired at the commencement of the-season: - That-the lateness of their
applications was not, the reason for, the refusal to reemploy some of
the packers in question is finally, most persuasively established by the
3 The record shows ; and we find, that this ' decision was reached shortly before September
11, 1944. We base our finding on' testimony showing 'that on that date, and thereafter;
Ferguson informed several of the packers in question that he intended to put on an entirely
new crew that -season and to teach them to pack . He-so informed applicant Colvin, on
September 11 and applicants Walden and Tonle Coats about September 14. On the other
hand, on September 7, when Walden first questioned Ferguson 'about the possibility of re-
employment for the season, Ferguson answered , that his plans for the season were as yet
tinformulated and suggested that Walden see him a week ' later.
BONITA FRUIT COMPANY, INC. 175
respondents' failure to rehire the ' 11 packers who did make timely
application.4
But even if all jobs been filled at the time these employees
requested rehire, we would nevertheless find that the respondents had
discriminated -against these applicants by replacing them with out-
siders at the commencement of the season in pursuance of their illegal
plan to rid themselves of the former packers. Cf. Matter of Phelps
Dodge Corporation, 19 N. L'. R. B. 574, 595, aff'd on this point, 313
U. S. 177.
3. A question is raised as to -whether Mattie Finley exerted suffi-
cient effort to obtain employment after the respondents' rejection of
her application. Finley testified that she did not file an application
for work with the United States Employment Service. The record
shows that Finley was working when she requested reemployment
with the respondents, and that she remained so employed until Octo-
ber 29, 1944. About N.,vember 8 or,10, she obtained a few days' teln-
porary work. She testified that thereafter, because of illness at home,
she did not look for other employment. Her loss of earnings for the
period during which. home conditions prevented her from working
was, therefore, not wilfully incurred. We do not, consequently, deem
it necessary to frame an order specifically requiring that she not be
reimbursed for the period of family illness.5 We shall leave this
matter to be considered and disposed of on compliance, in'accordance
with our usual practice.
The Remedy
Having found that the respondents have violated Section 8 (1) and
(3) of the Act,, we must order the respondents, pursuant to the man-
date of Section 10 (c), to cease and desist therefrom. We also predi-
cate our cease and desist order upon the following findings : The re-
spondents' whole,course of conduct discloses a purpose to defeat
self-organization and its objects among their employees. As we have
found above, since October 1942, the respondents have interfered with,
restrained, and. coerced their employees by various acts and state-
ments. The culmination of their illegal activities, the discrimination
against the 13 packers and Car Loader Juan Martinez "goes to the
very heart of the Act." e Because of the respondents' unlawful con-
* These were Walden , Tonle Coats , Colvin, Pauline Coates, Shelton, Lawrence and Clar-
ence Lequeux , Mattie Finley , Electra and Jim Green , and T. J. Coley . In this connection,
we also note that eight of these persons applied for work before any Latin -Americans
were hired on October 3
5 Cf. Matter of Ohio Public Service Company , 52 N. L. R . B 725, 729
6 N L. R. B. v. Entwistle Manufacturing Company, 120 F. (2d) 532, 536 (C C. A. 4)
See also Automotive Maintenance Machinery Company , 116 F. ( 2d) 350„ 353 (C . C. A 7),
where the Circuit Court of Appeals for the Seventh Circuit observed : "No more effective
form of intimidation nor more violative of the N L R Act can be conceived than dis-
charge of an emplo3ee because he joined a union. ,
176 ' DECISIONS OF, NATIONAL LABOR RELATIONS BOARD
duct and their underlying purpose, we are convinced that the unfair
labor practices found are persuasively related to the other unfair
labor practices prescribed and that danger of their commission in the
future is to be anticipated from the respondents' conduct in the past.
The preventive purpose of the Act will be thwarted unless our order
is coextensive with the threat. In order, therefore, to make more
effective the interdependent guarantees of Section 7, to Prevent a recur-
rence of unfair labor practices, and thereby minimize industrial strife
which burdens and obstructs commerce and -thus effectuate the poli-
cies of the Act, we shall order the respondents to cease and desist from
in any manner infringing upon the rights guaranteed in Section 7 of
the. Act.' As recommended in the Intermediate Report, we shall also
order'the respondents to take, certain affirmative action designed to
effectuate the policies of the Act.
ORDER
Upon the entire record in the case and pursuant to Section 10 (c)
of the National Labor Relations Act, the' National Labor Relations
Board hereby orders that the respondents, Bonita Fruit. Company,
Inc.,, and F. H. Vahlsing, Inc., and their officers, agents, successors,
and assigns, shall:
1. Cease and desist from :
(a) Discouraging membership in Texas Fruit & Vegetable Workers
Union, Local 35, Food, Tobacco, Agricultural and Allied Workers of
America, C. I. 0., or in any other labor organization, by discriminat-
ing in regard to the hire and tenure of employment or any terns or
conditions of employment of their employees;
(b) In any other manner interfering with, restraining, or coercing
their employees in the exercise of the right to self-organization, to
form labor organizations, to'join or assist Texas Fruit & Vegetable
Workers Union, Local 35, Food, Tobacco, Agricultural and Allied
Workers of America, C. I. 0., or any other, labor organization, to
bargain collectively through representatives of their own choosing,
and to engage in concerted activities, for'the purpose of collective bar-
gaining or other mutual aid or protection, as guaranteed in Section
7 of the Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Offer to the 14 individuals named in Appendix A, attached to
this Order, immediate and fall reinstatement to their former or sub-
stantially equivalent positions without prejudice to their seniority
or other rights and privileges;
(b) Make whole these-14 individuals for any loss of, pay they may
have suffered by reason of the respondents' discrimination against
BONITA FRUIT COMPANY, INC. - 177
them, by payment to each of them of a sum of money equal to the
amount which each normally would have earned as wages from the
date of the respondents' discriminatory refusal to rehire each of them
to the date of the respondents' offer of reinstatement, less the net earn-
ings of each during said period;
(c) Post at the plant at Weslaco, Texas,, copies of the notice at-
tached to the Intermediate Report herein, marked "Appendix A." 7
Copies of said notice, to be furnished by the Regional Director of the
Sixteenth Region, shall, after being duly, signed by the representatives
of Bonita Fruit Company, Inc., and F. H. Vahlsing, Inc., be posted
by the'respondents immediately upon receipt thereof, and maintained
by them 'for sixty (60) consecutive days thereafter in conspicuous
places, including all places where notices to employees are customarily
posted. Reasonable steps shall be taken by -the respondents to insure
that said notices are not altered, defaced, or covered by any other
material;
(d) Notify the Regional Director for the Sixteenth Region in writ-
ing within ten (10) days from the date of this Order, what steps the
respondents have taken to comply herewith.
IT IS FURTHER "ORDERED that the complaint, insofar as it alleges that
the respondents discharged the 15 persons named in the complaint on
or about April 15, 1944, and that the respondents 'discriminated
against Salvador Garza, be, and it hereby is, dismissed.
CHAIRMAN HERZOG took no part in the consideration of the above
Decision and Order.
APPENDIX A
Pauline Coates
Tonie Coats
T. J. Coley
Rhoda Colvin
Mattie Finley
Electra Green
Jim Green
Clarence Alston Lequeux -
Lawrence Addison Lequeux
Pearl Magginnis
Juan Martinez
May O'Leary
Gladys Shelton
James (Jim) Walden
INTERMEDIATE REPORT
Messrs. Elmer Davis and Earl Saunders , for the Board.
Strickland, Ewers ck Wilkins , by Messrs. J. F. Ewers and Scott Toothaker, of
Mission, Tex., for Bonita.
Mr. Otis G. Nation , of Mercedes , Tex., for the Union.
' Said notice , however, shall be, and it hereby is, amended by striking from the first
paragraph thereof the words "Recommendations of a Trial Examiner " and substituting
in lieu thereof the words "A Decision and Order "
670417-46-vol 64-13
178 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
STATEMENT OF THE CASE
Upon a first amended charge duly filed on December 18, 19-14, by Texas Fruit
and Vegetable Workers Union, Local 35, Food, Tobacco; Agricultural and Allied,
Workers of America, CIO,-herein called the Union, the National Labor Relations
Board, herein called the Board, by' the Regional Director for the Sixteenth Region
(Fort Worth, Texas), issued its complaint dated December 18, 1944, against Bonita
Fruit Company, inc., herein called Bonita, and F' H Vahlsing, inc., herein called
Vahlsing; Bonita and Vahlsing are herein referred to jointly as the respondents.
The complaint alleges that the respondents had engaged in and were engaging in
unfair labor practices affecting commerce within the meaning of Section 8 (1)
and (3) of the National Labor Relations Act, 49 Stat 449, herein called the Act.
Copies of the complaint and notices of hearing, thereon were duly served upon
the respondents and the Union
With respect to the unfair labor practices the 'complaint alleges in substance
that: (1), the 'respondents,, or one of them, (lid on or about April 15, 1,944, dis-
charge 15 named-employees' and have at,all times,since said date refused to
offer them and each of them reinstatement to their former or substantially equiva-
lent positions or employment because they joined or assisted the Union or engaged
in other concerted activities for the purpose of collective bargaining or other
nnutual aid or protection ; and (2)' "The respondents through their officers, agents
and employees have disparaged and expressed their disapproval of the union ;
have persuaded, urged, threatened and warned their employees to refrain from
assisting, becoming members of, or remaining menibers of the union ; have stated
to their employees in substance that if they engaged in concerted or union activ-
ities their employment would be terminated "
On or about December 29, 1944, Bonita filed its answer in which it admits the-
facts alleged in the complaint as to its corporate,organization and the nature of its
d i f li th bn e un air a or prac-t has engagebusiness . However , Bonita denies that
tices alleged by the complaint and states affirmatively that " it has conducted its I
business separately and apart from any other person, firm or corporation
Vahlsing, although duly served with the complaint and notice of hearing, sub-
mitted no answer and did not appear or participate in the hearing held in this
proceeding. '
Pursuant to notice a hearing was held in Edinburg , Texas . on December 30,
1i 44, and January 1, 2. 3, and 4, 1945, before the undersigned , Charles E Persons,-
the Trial Exaniinei duly designated by the Chief Trull Examiner . The Board,.
Bonita, and the-Union were repr'esenteil,by counsel and participated in the hear-
ing Full opportunity to be heard , to examine and cross -examine witnesses and
to introduce evidence was afforded all parties At the opening of the hearing
the Board moved to ,uuend all formal papers by, substituting the new name
Food , Tobacco , Agricultural and Allied Workers of -America, CIO, for UCAPAWA.
This motion was gianted The Board further moved to amend the complaint
by substituting "disapproval" ton the word "approval" in paragraph - 8 of the
complaint This motion 'wati gi•iuited iThe( Board --also moved to amend the
complaint by' substituting the mime 'l 'onie Coats for Toby Coates in Appendix
,A of the complaint This motion wos'granted. At the conclusion of the heai-
ing the Board moved that all ple.idings be conformed to the proof in minor neat-*
ters such as dates and spellings of manes This motion was granted- without
objection After the presentation of evidence counsel for the Board and for
'Pauline Coates. Tonne Coats, T G Cole}, 1{lioda Colvin, Hattie Finley, Salvador Garza,
Electra Gieen, Jim Green, Clari'nce Alston Leiiueux, L.isreilce .1ddi^on Legneux, Pearl
Marruims Juan lita,tinez, liar (('Leann Gladys Shelton, and James (Jinn) Walden
BONITA FRUIT COMPANY, INC. - 179,
Bonita participated in oral argument before the undersigned . • The parties'
were duly advised that they had the privilege of-presenting briefs for the con-
sideration of the Trial Examiner Bonita ,has duly presented such - a brief
Upon the - entire record of the case and from his observation of the witnesses
the undersigned makes the following
FINDINGS OF FACT - '
I '17iF BUSI NESS OF THE RESPONDENTS AND THEM INTERRELATION
2
Vallsing was incorporated under the laws of the State of Texas on December
22, 1935. It is engaged in the growing, buying, harvesting, loading and ship-
ping of citrus fruits and of vegetables It operates plants at Elsa and Mathis.'
Texas, and until August 29. 1944, operated the plant handling citrus fruit at
Weslaco, Texas with which this proceeding is directly concerned. Vahlsing also
operates four farms, raising fresh vegetables, in the Valley section of- Texas and
operates 5 seasonal plants in north and east Texas handling tomatoes and onions.
During the 1043-44 season Vahlsing packed 843 cars of citrus fruit; a substan-
tial proportion of which Was shipped outside the State of Texas During this
season approximately 2,700 carloads of vegetables were loaded at the Elsa
plant The value of these shipments varied from $250.00 to $1,000.00 per car-
load Approximately 90 percent of the,shipinents was made to points outside
the State of Texas. In its three north Texas plants Vahlsing packed approx-
imately 126 cars of tomatoes during the 1943-44 season, all of'which were shipped
to points outside the State of Texas While definite data were not available
regarding shipments fiom Vahlsuig,s 2 east Texas onion packing plants, ac-
credited testimony was received indicating that the shipments were "quite a lot
larger than any of the tomato operations," siiice operations extended-over a (i
mouths period while tomato packing was finished in 30 days
Bonita was incorporated under the laws of the State of Texas on August 29,
1944, and took over the operation of Vahlsing's Weslaco plant on that date It
has its principal office and place of business in Weslaco, Texas, where it is en-
gaged in the buying, packing, selling, and distributing of citrus fruits From
October 12, 1944, to Deceiubei 30, 1944, Bonita bought and packed in excess of
500 carloads of citrus fruit having a value, in excess of $500,000.00. Approxi-
mately 75 percent of this output was shipped outside the State of Texas.• Bonita
employs aproximately 80 production workers.'
The capital stock of Vahlsing is $30,00000, of which F H. Vahlsing subscribed
and paid $37,500.00 to Melvin H Giese $12,300 00 The original incorporators
'The findings In this section are based on a stipulation of the parties at the hearing
incorporated in the, record, on allegations of the complaint admitted by Bonita in its
answer and on testimony which Is uncontroverted.
9 The record contains no exact data relative to shipments from the Mathis plant.
* There is reference in the record to a plant operated in 1943 -44 by Vahlsing ,' at San
Juan , Texas It seems to have packed 125 carloads of citrus fruit in that season.
° Bonita objected at the beginning of-the hearing contending that the employees covered
in the complaint were agricultural workers It is well estahlinhed that packing shed
eniplovees are within the coverage of the Act As well stated, on January 22, 1945, by the
Fifth Circuit Court, with reference to it similar group of employees
The employees are engaged in sorting and packing the fiuit-foi market - It is done
on a large scale in a large plant owned by the corporation. The employees do'no field
work and the corporation raises no fruit Although packing fruit in the orchard. in
connection with its gathering by the producer would probably be agricultural labor,
when the fruit raiser turns` it over to''a large'packing plant to be mingled with the
fruit of others, processed, packed and sold, the work becomes commercial rather.than
agricultural North Whither Height' 'Vi As:s'a N' N iL R B,,109 76
cart denied 310 U S 682, N L R B v Pdinbu-, G'iti us'Asa'n 147 F (2d) 353
(C C A 5) 15 L L Ii 709
J
180 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
were F. H. Vahlsing, Melvin Giese and his wife Eileen Giese. Bonita is owned
by the same three individuals, Its authorized capital stock was $100,00 00, of
which half was paid in. F. H. Vahlsing subscribed for $75,000 00 and Eileen
and Melvin Giese for $25,000.00,8 The officers and directors of Vahlsing are not
stated in the record but Melvin Giese was manager of all its operations throughout
Texas. He was also treasurer as appears from his signature on the Bill of Sale
transferring Vahlsing's interest in the Weslaco.plant to Bonita. Albert Pfaffen-
roth on occasion audited the books of Vahlsing operations in Texas.
James Barr Ewing,' president and manager of Bonita, testified, and the under-
signed finds, that Melvin Giese told him on a date which he did not remember,
but earlier than August 29, 1944, that Ewing would be president, Martin Hamilton,
vice president, Louis Witte, treasurer, and Pfaffenroth, secretary of the projected
Bonita. These four men also became the directors of the new corporation. The
terms under which Ewing assumed his duties as president and manager were
also arranged in negotiations between Ewing and Giese. Ewing was to receive
$75.00 a week ; 50 cents per ton on all fruit handled by the Weslaco plant and
10 percent of the profits. Ewing operates an orchard and farm lands aggregating
450 acres. He also owns and operates a trucking business, doing business as the
Barr Ewing Trucking Company, with from 16 to 20 trucks and from 150 to 200
employees. During the citrus fruit season Ewing's trucking facilities were oc-
cupied in harvesting grapefruit and oranges and hauling them to packing plants.
He had had verbal contracts to perform such services for Vahlsing's Weslaco
plant in each of the two preceding seasons. Hamilton was called as a witness
for the Board. He gave credited testimony that he had been a "clerk" for Vahl-
sing since 1935 or 1936. His duty was to "work between the field men and the
shed men to get the necessary supplies-in to fill the orders." His work had been
exclusively concerned with packing vegetables and he had no experience in citrus
fruit packing operations. He professed almost complete ignorance as to circum-
stances attending his designation as vice president and director of Bonita. He
testified that he was "fairly sure" he had been informed by Ewing of the forma-
tion of Bonita but that he did not remember how it happened that he was made
a director and attended the first meeting. He was equally hazy as to the nature
of his duties and responsibilities.
Witte had been sales manager for the Weslaco plant and had been assigned
duties daring the off season period for citrus fruit packing in other Vahlsing
operations. The manager Dick Winn, of the Weslaco plant left in December
1943. Witte thereafter added Winn's duties as manager to his previous assign-
ment and continued in this dual capacity, until Ewing became president and
manager of Bonita. Sometime in August Ewing hired Witte at a salary of $100.00
a week plus $25.00 per week expense money. Witte was also to receive 15 percent
of 'Bonita's profits. These terms represented an increase in Witte's compensa-
tion despite the fact that his duties as manager were to be terminated. Witte
furthermore was to be paid for a-full year although he would thereafter have
nothing to do in the off season beyond writing letters to customers and keeping
in touch with brokers throughout the country.
The only meeting of Bonita's Board of Directors, prior to the hearing in this
proceeding, was held on September 8, 1944. The minutes book shows that it
approved bylaws, the source of which does not appear. It also validated the
officers indicated earlier by Giese, manager of Vahlsing's Texas operation ; Bonita
O The Report and Recommendations of the Eighth Regional N. W. L. B. Panel, dated
December 13, 1944, finds these subscriptions to Bonita.
T Ewing was familiarly known by his middle name, Barr, and is frequently referred to
by that title in the transcript of evidence.
i
BONITA FRUIT COMPANY, INC. 1-81
at the-time was not a legal entity. Pfaffenroth did not attend this director's
meeting. The minutes also show that Ewing as president and manager was given
full charge of all operations in the Weslaco plant.
F. H. Vahlsing under date of April 29, 1944, 'notified the Regional Office of
N. W. L. B. that none of the principals of Vahlsing would attend a hearing set
for May 4, 1944, "for the reason that we are closing up our Weslaco branch and
going out of the fruit business." However, the.' action thereafter taken by
Vahising does not substantiate this statement. Ferguson testified, and 'the under-
signed finds, that Witte, manager of the Weslaco plant, instructed him "probably
near the end of April" that he was to make alterations in the plant designed
to increase its capacity 25 percent.' Ferguson was occupied with this work "All
summer, from when I started in at the end of the season this year." The work
was supervised by Witte, and Ferguson was paid by Vahlsing through August
1944 Ferguson bought such materials and supplies as he needed and turned the
bills in to Vahlsing. His testimony was, "It is reasonable to believe that they
was paid for . . " Bonita and its officers had no part in planning this expansion.
However, they proceeded to carry out these expanded operations on-taking over
the plant.
The machinery and equipment in the plant was owned by the L. Maxey Corpora-
tion of Texas. Vahlsing had a lease for the use of Maxey's equipment in the
plant which did not expire until 2 years after Bonita took over the plant. It
required the payment of $6,800 each season. Ewing's credited testimony was
that Giese "arranged"' that Bonita would assume this lease without change in
its terms.
Since the buildings and plant were leased, the property purchased by Bonita
consisted almost entirely of minor equipment, such as field boxes and supplies.
On the inventory were over 250,000 labels. These were bought by Bonita which
also acquired the right to use them, "until such time as revoked," on its boxes when
packed and shipped.10 These labels are 9 by 9 inches and are brightly and
attractively colored. They carry the name Bonita in 2-inch lettering. This had
been Vahlsing's trade name and was stamped on boxes of vegetables packed by it
before the 1944-1945 season. The labels also carry the words F. H. Vahlsing,
Ine, Weslaco, Texas, U. S A The labels acquired were sufficient in number to
carry Bonita through January 1945. When asked whether he expected to be
allowed to continue the use of the trade name Bonita thereafter Ewing replied,
"We hope' so." He also agreed that the use of the label was "advertising
Vahlsing ",
Ewing rehired the office force, consisting of two employees, and Ferguson as
plant foreman. It developed during the course of the hearing that Bonita had
possession of Vahlsing's pay rolls and its records of carload shipments in the
previous season.
It thus appears that there was no change in the stockholders when control of
the plant passed from Vahlsing to Bonita. The only change in the plant was that
involved in the expansion of its capacity by one quarter. The supervision was
left unchanged. Bonita's directors and officers were, in effect, appointed by
Vahlsing. They had nothing to do with choice of Bonita's name. Plans for the
current season and preparation of the plant were directed by Vahlsing and made
at its expense. Vahlsing directed Bonita to assume the leases for building and
8 The railroad company also enlarged the packing shed, adding three sterilizing rooms.
Bonita ' s officers had no part in arranging for this plant expansion
0 Swing's accredited testimony reads , " I believe Mr. Giese made the arrangements. We
paid for it but he made the arrangements " Ewing further stated that Giese told him
Vahlsing "had a .lease for two more years , which we-would assume."
10 Ewing so testified and the undersigned credits his testimony.
182 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
equipment held by Vahlsing • Vahlsing not only selected Bonita's president and
manager but arranged his compensation. Ewing, in turn, while Vahlsing still
controlled the plant, hired Witte. Wheni Bonita came into being it was obligated
to Ewing and Witte to the amount of $200.00 weekly, 25 percent of all profits and
50 cents bonus'.' on every ton of fruit processed. Bonita continued to use the
same labels as Vahlsing. It thus acquired all the good will possessed by Vahlsing
since purchasers would have no reason to suspect that they were not buying a
Vahlsing packed product.
It is thus evident that the change in corporate ownership resulted in no change
in the employer-employee relationship." - Under these circumstances the under-
signed finds that, for the purposes of effectuating the policies of the Act, Vahlsing
and Bonita are so interrelated. as to be jointly and severally liable for the unfair
labor practices of both'$ It is further found that Vahlsing and Bonita, and
each of them, are employers of the employees herein involved, within the meaning
of the Act The termn, the respondents, is hereinafter used as referring to either
Vahlsing or Bonita depending upon the dates of the activities herein below
described.14
II THE ORGANIZATIONS INVOLVED _
) I
Food, Tobacco, Agricultural and Allied WVorkers'Unwn, CIO, and its Local 35,
Texas Fruit and Vegetable Workers Union, are labor organizations , admitting
to membership employees of the respondents.
III THE UNFAIR LABOR PRACTICES
A. Background and chronology of events
In the Rio Grande Valley of Texas, the railroad companies are accustomed
-to erect the packing sheds which are leased to companies packing citrus fruits
and vegetables The machinery used in sterilizing, coloring, and sizing the citrus
fruits may also be leased from the companies manufacturing the machinery of
from other owners. , Each year the Coininissioner'of Agriculture of the State of
Texas sets a date at which the citrus, fruit' packing season is officially declared
open. This is done after inspection of the fruit in the orchards by the State's
"testing agents" determines that the fruit is sufficiently mature to be fit for use
as food. In 1944 the date set was October 9 No fruit picked before the official
opening of•the season may be sold as food. Harvesting, sterilizing, and coloring
the fruit ordinarily delay the first shipments from the packing sheds for 2 or 3
'days after the season officially opens. The packing season ordinarily continues
until sometime in the following April.
11 For the most part this bonus was paid by adding 50 cents to the price paid for each
ton of fruit hauled to the plant by the Barr Ewing Trucking Company. This covered 30
percent of the fruit packed.
What the undersigned finds, here is "merely a disguised continuance of the old em-
ployer.". See Southport Petroleum Co. v. N. L. R. B , 315 U. S 100. The United States
Supreme,Court there said : "If there was merely a change in name or in apparent control
lhere is no reason to grant the petitioner relief from the Board's order of reinstatement;
instead there is added ground for compelling obedience." -
19 In the Report and Recommendations of the Panel of the Eighth Regfonal'N W. L. B.
issued December 13, 1944 a similar conclusion, fs positively stated. If reads
We. therefore conclude for the purposes of this case that Bonita Fruit Company, Inc , is
the same as F H Vahlsing, Inc , and that it is bound by all F. H. Vahlsing's obligations
as regards the Union and its members, and those for whom it has bargaining rights ;
and that whate%er oider the Board may see fit to enter herein may appropriately run
to Bonita Frult'Company,'Inc '
li Cf )ldrl Clay Products Company, et al, 44 N L R B. 386, at 390, enfol led (C C. A.
8) 134 F. (2d) 342
BONITA 'FRUIT COMPANY, INC. 183
Unless the fruit packing company also Handles vegetable crops , the'shed is shut
down from April to October . The crews are released , except ' for employees re-
tained to repair and recondition the plant and machinery . Fruit packers; who
work at piece rates , of wages, are ordinarily the most skilled and best paid group
in the plant . After the season ends they may move to distant fruit or vegetable
growing sections seeking , employment at their occupation They are under no
obligations to return to, the plant from which . they have been released nor are
the employers legally obligated to reemploy them . In practice , as, the record in
this proceeding shows , they frequently return to a plant , season after season.
This is particularly true if they maintain-homes in the vicinity''
Citrus fruits are packed in Standard or Bruce boxes of in'sa 'cks The boxes
have a uniform content of 2 cubic feet or 1% bushels . ' The Bruce box, has a
single compartment while the Standard box has a partition through the middle
In the Standard boxes also each orange or grapefruit is wrapped in tissue paper.
Current conditions dictate a trend away from packing in Standard boxes to all
but complete use of Bruce boxes and sacks Standard boxes are scarce and
O. P. A. ceiling prices favor the use of Bruce boxes . Competent evidence in this
record shows a price differential of 14 cents on fruit packed in Standard boxes
while costs are approximately 30 cents higher Sacks contain the equivalent
either of a box or a • half box. Fruit packed in , sacks is not wrapped.
The packers, the majority of. whom are women , and the supervisors have
normally been Anglo - ,Americans The field hands and the floor help in the
packing sheds for the most part are Latin -Americans . ' Unionism has been strong-
est among the packers . The A. F of I, has maintained `an organization in the Rio
Grande Valley for at least 10 years. The C. I O. has more recently entered this
area Its International Union having jurisdiction was known until December 7,
1944, as the United Cannery , Agricultuiat , Packing and Allied Workers of America
(CIO). This 'name was, in ordinary usage , shortened to a word formed by using
the initial letters of the title i. e, UCAPAWA At the date stated, in annual
convention , the name of this organization was changed to Food, Tobacco, Agri-
cultural and Allied Workers Union ( CIO). This change was made with intent
'to describe more exactly the jurisdiction exercised by the International Union.
One of its constituent locals is the Texas Fruit and Vegetable Workers Union,
Local 35, which preferred . charges in this proceeding
Shortly before December 1943, the Union instituted an organizational campaign
in the plant . This was largely successful and in tbat'month the Union , through
Otis G Nation , vice president of the International , who has charge of organiza-
tional activities for Local 35, made claim to officials of Vahlsuig that the Union
had a majority among the employees and requested bargaining conferences.
About this time also a Petition for Investigation and Certification of Renresenta-
tives was filed with the Board . Thereafter , a consent election agreement was
entered into by the Board , Vahlsing, and the Union The Union won the election
held on January 15, 1944, by a substantial majority . Bargaining conferences
were held during the period from February 1 to March 25, 1944 For reasons
not material here these 'conferences 'did, not result in agreement on a contract.
The dispute was referred in regular procedure to the National War Labor
Board, herein called N W L B., on March 25, 1944 Through its Eighth Regional
Office a panel was established which set May 4, 1944 , as a hearing date. Vahlsing
retained the counsel of record for Bonita in this proceeding . One of the attorneys
in this firm "prepared quite an extensive brief ", which it duly filed with the panel,
"contacted some witnesses" and made full preparation for appearance at. the
hearing. On April 29 , 1944, however , F. H., Vahlsing notified its counsel "that he
was going out of the fruit business inAhe . Rio• Grande Valley and consequently
184 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
did not want us to attend that meeting." Counsel then made inquiry of Melvin
Giese, as Vahlsing's local representative, asking the reason for this change of
plans. Giese gage no additional information. Vahlsing did not appear before
the N. W. L. B. panel but notified that body by telegram under date of April 29,
1944, as follows :
Please be advised that none of the principals of our organization will attend
the meeting on May 4 at the Reese-Wilmond Hotel for the reason that we
are closing our Weslaco branch and going out of the fruit business.
This telegram was signed : F. H. Vahlsing. The panel proceeded with the hearing
on May 4, 1944, but made no report
Vahlsing continued'in active control of the Weslaco, plant until August 29, 1944,
when it conveyed its property therein to Bonita which was organized as of that
date. The Eighth Regional Office of NWLB on October 17, 1944, notified the
Union and both Vahlsing and Bonita that a new hearing' would commence on
November .3 Vahlsing did not appear but Bonita and the Union participated in
this hearing. On December 13, 1944, the Panel issued its Report and Recommen-
dations. It found, among other matters, that Vahlsing and Bonita were the
same organization ,"for the purposes of [the] case" and that the economic unit
"should not be permitted to avoid its obligation to bargain with the Union, or to
oust the [N. W. L. B.] of jurisdiction over the dispute certified to it ... through
the device of separately incorporating the business which theretofore had been
simply a division of its more diversified interests, all of which were carried on
through the medium of one corporation.",
The Panel gave consideration to the points of difference developed in bargaining "
conferences between the Union and Vahlsing. It. made definite recommendations
for the solution of each point of difference and appended to its Report a detailed
agreement which it recommended that the N. W. L. B. include in its Directive
Order. At the time of the hearing in the instant proceeding, no further action
had been taken by^N. W. L. B
B. Acts of interference, restraint, and coercion
Plant Foreman Cecil Ferguson was responsible for the various acts of inter-
ference, restraint, and coercion set forth in this section. It is admitted that he
was of supervisory status 3° Ferguson, testified and the undersigned finds 'that
he had full authority to hire and fire all packers ' and all floor help. The record
discloses that his anti-union attitude was of long standing. Although Ferguson
testified at length, subsequent to the examination of the Board's witnesses, he did
not deny any of the incidents ascribed to him which are discussed in this section.
The undersigned finds the Board's witnesses fully trustworthy and their uncon-
troverted testimony is fully credited.
In October 1942, packer Pearl Magginnis is was approached in the plant by
Ferguson who stated with reference to the possibility of her joining an A. F. of L.
organization that she would have a job longer than any union packer there if
she did not join the Union. Magginnis gave a noncommittal reply and later
joined the A. F. of L. ,
In November 1942, when packer Tonie Coats''' applied to Ferguson for em-
ployment, he asked her whether she belonged to a union. When she replied in
15 Ewing testified that Ferguson 's "duties as plant foreman are to see that the fruit is
packed and ' loaded in a car properly and to hire and fire employees in the event it is
necessary."
19 This name appears in Appendix A of the complaint as McGinnis.
14 The complaint lists this -employee erroneously as Toby Coates . During the 1942-1943
`season she was carried on the respondents ' pay roll under her maiden name Tonle Dirks
BONITA FRUIT COMPANY, INC. 185
the negative, Ferguson, according to Coats, said that "he wasn't gonna tell
me not to join it, but lie was gonna say that he'd rather I wouldn't join it."
Coats-testified further that Ferguson said, "he was gonna hire a bunch of new
packers, or a bunch of new people, rather, and teach them to pack and then he
was gonna get rid of all the Union packers and that that was the reason he
was hiring new people and teaching them to pack-where he could get a whole
non-Union crew." About a week after going to work Coats joined the A. F. of L.
Thereafter, Ferguson again questioned her as to her membership. Coats at first
denied having joined since she "didn't figure it was anybody's business that I had
or hadn't joined the Union ...' After consideration, Coats decided to inform
Ferguson of her membership. When she did so he told her that "the first box
[she] set off that was not packed right, that [she] was fired."
In December 1942, the packers engaged in a brief strike with intent to secure
higher pay for packing oranges. While the packers were "setting, down out
there wanting more money", Ferguson came to employee Lawrence A. Lequeux
and told him if you "go' out there in front of them packers and tear [your]
card up that several of them would come back to work " Lequeux told him
"that's the way I got my living was packing fruit and, . . . I couldn't afford to
do it " Lequeux did not return to the plant after the strike for the remainder
of that season but was rehired for the 1943-1944 season. "Right after Christmas"
in 1943 Ferguson stated to Lequeux that he "didn't believe in the Union" and on
another occasion attached to a similar statement the explanation for his lack
of belief that "it was coming out of the farmer's pocket."
Late in December and shortly before the consent election•on January 15, 1944,
Ferguson said to, packer Rhoda Colvin in the presence of several employees
that "he didn't like the way-things was going around the shed that there wasn't
gonna be anyone coining in the shed and telling him how to run it, and he said
when they did that,,why one party or the other had to get out . . ." Colvin
understood that the reference was to the Union. As she stated, "so of course we
thought that meant the union. I didn't know what else he could have meant."
After consideration of the record and particularly of Ferguson's responsibility
for the hiring of non-union employees for the 1944-1945 season, as set forth in
the following section, the undersigned infers and finds that Ferguson by this
statement was warning Colvin and, through her, other employees that success,
by the Union in the forthcoming election would result in the exclusion of union
members from the plant.
Shortly before the election Ferguson came to car leader Juan Martinez with
a sheet of paper on which were two columns of signatures headed Non-union
and Union respectively. Wheh presented 'to Martinez, the Non-union list con-
tained about 14 signatures; the Union 3, Ferguson'said, as testified by Martinez,
"Juan, this is non-union and this is union . . . on this side you see many names
that are non-union and the other side you don't see so'many that joined the
Union." Martinez stated to Ferguson, "I belong to [the] Union and I vote for
the Union right of work." Thereafter, he signed the paper in the Union column.
This testimony of Martinez is corroborated by packer T. G. Coley, who testified
that he had seen Ferguson take "a petition and [go] around to all of the em-
ployees outside of the packers and wanted them to sign up as to who was in
favor of the union and who wasn't." Coley further testified, "I saw it in his
hand'and I saw this one and that one signing it."
On the day before, the election, as Tonle Coats testified, she walked up behind
Ferguson and employee Jue,Alamonzo, " a floor worker, and overheard Ferguson
'8 Listed in the complaint as Addison Lequeux.' He was known in the plant by his middle
name, Addison
'" Alamonzo was not available as a witness . He was understood to be "in some northern
part of the country" but his exact location was unknown.
186 DECISIONS OF NATIONAL LABOR, RELATIONS BOARD
tell Alamonzo, ". . . that was the way to vote . . . • 'Coats observed that Fer-
guson was holding a pencil on the -word "No" on a sample ballot posted on the
plant wall. Coats' testimony was corroborated by testimony of Colvin reading
as follows :
-Well; Mr. Green [a Board field examiner,] had been over to the shed and
had put the' sample ballots, • two • or -three of them' up in the shed, this one
was right " by `the door and several of us were standing there and Joe
[Alamorizo] walked up and Joe said, he'said "Mr. Ferguson told him to vote
this way and he pointed to' the word 'No'.it was in big red letters, and the
word `Yes'"was in big red letters; and well, that all that was said."
Shortly _ after the Board election Ferguson"came to Magginnis and asked
her if she "could tell him what was'in the contract the Union was going to
present to the Company." Magginnis replied, "that that was between the Union
and myself, that what was between'the Union and myself was my own business
and-if be wanted to know what was'in it to go down there and find out for
himself."
`Sometime in March 1944, Coley, who ,was shop steward in the plant, was con-
versing'With' Martinez on the platform "just' outside" Ferguson's office, about
happenings at,a nniori meeting. The employees were temporarily idle because
of a machinery breakdown, Ferguson came up and said: "Coley, I thought we
had an understanding here that we was not having any union activities here in
the packing shed." Coley demurred and stated that he was "not detaining,
anyone's work whatsoever. We are just merely talking." Ferguson persisted
in his instruction and Coley acquiesced. . The Board has recently defined the,
limits of legitimate interference by employers with the union activities of em-
ployees within the plants. Coley and Martinez as employees were within their,
rights as defined by the Board 20 Beyond that the undersigned finds in the act
of Ferguson an unjustified interference with the legitimate activities of a union
official.
The undersigned finds that by the above-stated activities and statements of
Plant Foreman Ferguson the respondents have interfered with, restrained, and
coerced their employees in the exercise of the-rights guaranteed in Section 7
C. The ret'tsal to rehire -
1. The packers; their employment records; union activities' and applications
for reemployment
The Board's complaint lists 13 packers whom it charges were discriminatorily'
refused reemployment Twelve of these appeared as witnesses.. The testimony
of Electra Green covered the case of her husband Jim Green. Five of these com-
plainants ' had worked in the plant only during the 1943-1944 season; five"
during that and the, preceding season; while the three remaining" had worked
some part,of the 1941-42 season as well as the following two seasons. During
the 1941-1942 season the plant was located at Alamo, Texas. The respondents do
not contend that these packers were not acceptable workers. 24 The only criti-
cism of their work performance was in the case of Lawrence Lequeux whom
20 See Matter of Peyton Packing Co., Inc , 49 N L. R B 828, 843-4 -
11 Electra and Jim Green, Mattie Finley, Gladys Shelton, James Walden
n Pauline Coates, T. G Coley, Rhoda Colvin, Tonle Coats and Clarence A. Lequeux.
2- Lawrence A Lequeux, May O'Leary and Pearl Magginnis,
24 Bonita's counsel stated at the hearing : "I don't believe that that is an issue, the
ability of any employees, inasmuch as this has not been' brought out, that they were or
were not good help."
^= = 713OI3ITA BFI UIT CONI•PANY,, INC. 187
Ferguson testified, had a 'poor attendance record. The respondents, however,
'do not contend that this matter affected the decision not to rehire Lequeux.
'All of the 12 packers who testified stated that they had joined the Union in
December 1943 and that they thereafter wore C. I. O. buttons prominently dis-
played on their clothing while at work in the plant.2' They were also active in'
soliciting the membership of new employees Re At least 8 of the packers who testi-
fied had been members of an A. F. of L.• organization before joining the Union. In
three cases this membership covered a 10-year period "ever since its been- in
the valley" Coley ^ testified without contradiction, and the undersigned finds
that Fei guson "knowed I' was a union member the first box I ever packed for
him in 1942 " Coley, O'Leary, Finley, and' Shelton, as members of the Union's
,negotiating committee,'participated in several conferences between the Union and
representtit Ives of Vahlsing in February, and March 1944. O'Leary was union
observer at the Board election on Janua'y 15, 1944. After consideration of the
record the undersigned find that the respondent had knowledge of the union
membership and activities of each of the, complainant packers.
The packers made timely applications for employment n in the 1944-1945 season.
Magginnis "went house"-"around the fourth of March" 1944, because of her
mother's illness. On leaving the'plant she said to Ferguson, "Cecil, is it under-
stood that I get my,job back next season?" He replied, "If I'm in this plant,
Pearl, you can go back on your job." O'Leary left "late in March" before the
close' of the season Her leaving was because of her husband's illness and was
approved b> Ferguson O'Leary said to Ferguson when leaving, "I'll see you this
next season for work." She received no reply.
• About April 17, 1944, Coley said to Ferguson, "Well, Cecil what about a job
for the new year?" Coley's testimony as to `Ferguson's reply reads as follows :
He says, "Well," he says, "I'm not promising anyone any jobs " I says "Well,
what's the trouble" and he says "Well, I don't know whether we will be
operating or not, and I don't know whether I'll be operating here or not" . . .
he said it just that way, and then I says "Well, if that's the way you feel
about it I need not say any more for the time being," and he,says "Well,
so far as I know, no."
On or about April 18, Walden made a similar inquiry of Ferguson. Walden's
testimony as to Ferguson's reply was as follows : "Well, that he didn't know
whether he'd be there himself, that he didn't know what the conditions would
be there and to see him later." On the last working day, April 20, 1944, Electra
Green asked Ferguson whether he could use her husband and herself as packers
during the next season. Ferguson told her that they had better write in "at
the beginning,of,this season around the first of October, that he didn't even know
if he would be with the company or not." Colvin, Shelton, and Finley came to the
plant on April 22, 1944, to get their releases and their'final checks. These were
delivered by Ferguson in his office. One of the three asked Ferguson : "How
about a job for the coming season?" Ferguson said : "No, I don't think so. I
might not be here myself "'8 •
u Electra Green testified that her husband joined "the same time I did," wore the
Union button "most of the time" in the plant and vas active in soliciting Union members
au A typical statement is that of Finley,
When new help came in I made it a point to find out if they belonged to the union
and if they did not, I tried to persuade them to loin
71 Finding as to these applications is based on testimony by the packers concerned. In
no case was this testimony controverted
is These quotations are, from Colvin 's testimony . Shelton and Finley's . testimony cor-
roborates her.
188 DECISIONS OF NATIONAL LABOR,RELATIONS BOARD
In accordance with Ferguson 's instruction to see him later , Walden went to
Ferguson 's house "about , September.- seventh" and asked about a job saying he
"would like to work down there ." ,Walden's testimony as to Ferguson 's reply
reads : "Well , . . . that I had been the first packer that had asked him for a job,
that he had not hired any packers yet as he didn't know . . . what he was gonna
do and to see him about a week later." Walden went to the plant about a week
later, accompanied by Tonic Coats , and asked Ferguson what he had decided.
Ferguson stated , as testified by Walden , that he had "decided to use another
crew and that he had to teach a few new ones every year and that he had decided
he might as well teach a full crew , a full new crew." Coats corroborated Walden's
testimony . Her version of what took place reads :
Well, he [Walden ] asked him for a job first and then when he told Jim, "No",
that he wasn ' t gonna hire the packers back why I asked him how about me
and he said that be didn't have a job for me either , that he was gonna hire
a new crew of laborers."
Colvin made a personal application to, Ferguson in the plant on September 11,
1944 . She testified that in reply to her inquiry about a job for the coming sea-
son, Ferguson said: "No, you don't have a job. I'm going to put on a whole new
crew and teach them to pack . Some one had to teach new packers here on
account of the, over-production that we were having and [ I'd] just as well teach•
a whole new crew out and out " Two days later Pauline Coates was also told
by Ferguson that "he was going to use a whole new line of the packers this year
so that , he would not need me." In response to further inquiries of Coates,
Ferguson assured her that the refusal to rehire her was not on account of her
work which was satisfactory . When asked directly , by Coates if the change in
the crew of packers was on account of the Union , Ferguson said, as Coates tes-
tified- "No, that when the new company took over and hired that the union
was not mentioned."
On September 15, 1944, O'Leary wrote to Ferguson from Kingsville , Texas.
The letter was in long hand and was not registered. O'Leary asked for a job
giving her address and box number . She received no reply. Shelton applied in
person at the plant on September 18, 1944. Her testimony regarding her inter-
view with Ferguson reads as follows :
Well, I went up to the shed and my sister-in-law was with me and we went
into the plant and talked to Mr. Ferguson and I told him that I came up
to see,if I had my job back again this year and he says . . . "Well , r don't
think so." He said, "I 'm going to have a full new crew" and then I asked
him, I said, "What's the , idea of a full new crew?" And he said, "Well, we
are going to have to keep [teach] some of them and we might just as well
go ahead and teach a full new crew." And then I told him, "You're gonna
have a mess in here with all new packers ," and he said , "Well, we are
harvesting , fruit today and we are gonna start a school of instruction in
the morning and teach them how to pack."
About the 29th of September , Lawrence and Clarence Leq'ueux applied fof
jobs as packers and were told by Ferguson that-`he was full up ." Finley wrote
to Ferguson from Grand Junction, Colorado. The letter was received, as the
registry receipt shows , on September 28, 1944 Finley asked whether she could
.come back and work for the season and requested Ferguson to-wire his reply
collect Ferguson admitted in his testimony that he made- 'no answer to this
inquiry. • -
Some time between September 15 and October 1, i944, Nation, called Ferguson
on the telephone and asked when the plant was to be reopened Ferguson
BONITA FRUIT COMPANY, INC. 1 89
replied that he didn't know. Nation then said that most of the Union members
were getting back into the valley and that he was requesting employment in their
behalf for the 1944-45 season. Ferguson's only reply-was to say repeatedly:
"I can't say nothing."
Electra Green wrote a letter, in accordance with Ferguson's suggestion made
on April 20, 1944, from Broadway, Virginia "registered, insured and airmail", in
behalf of her husband and herself, dated October 1, 1945 She asked whether
they would "have a packing job" for the new season. Mrs Green "enclosed an
airmail stamp for a quick reply." The registry return receipt, signed by Ferguson,
shows that the letter was received on October 5, 1945. Ferguson testified that
he did not answer the letter. Coley similarly wrote-from Berryville, Virginia,
on October 3, 1944, stating that he would like to have his job back "for the coming
season." The letter was registered and the return receipt shows that it,was
received on October 7, 1944. Ferguson made no reply ' On October 18, 1944,
Magginnis and O'Leary went to the plant and asked Ferguson : "how about a
packing job?" He replied : "I'm full tip ; we have all the packers we need.'
Ferguson stated that he had 37 packers and when O'Leary commented on the
contrast between this Dumber and 18 employed in the previous season, Ferguson
said: "There's one thing, about it, the packers we got now sure don't give its
any trouble and are not . . . trying to take five 90 all the time." 91
O'Leary's further testimony regarding, this interview with -Ferguson reads
as follows :
'A I said, "Cecil, have you got any Union, packers?" and he says, "Oh, yes,
I have," and I said, "how many?" and he said, "One."
Q Did you ask him to name that one?
A Yes and he said ... rather I said, "Who is it?" ,and he said, "Blanc he
Ryan," and I said, "She certainly don't belong to the Union."
Q. Does she belong to the Union?
A. She does not.
The -record shows that "premature fruit" was picked on September 18, 1944,
to be, used in training the 50 or 60 Latin-American girls who reported as candi-
dates for positions, as packers. The school was operated "about 12 days." Fer-
guson had promised the candidates that "all of them that could pack would
be hired." Since the school began on September 19, its close, with allowance
for Sundays, would fall on or about October 3, 1944. It thus appears that all
but four of the applications from former employees listed above were received
before the members of the new crew were definitely engaged.
2. Car loader Juan Martinez; his work record, union activities
and applications for reemployment
Juan Martinez is a car loader with 15 years' experience. He was hired
by Vahlsing on October 15, 1943, and worked throughout the 1943-44 season.
3 Ewing admitted that some of the packers' letters asking for reemployment had been
shown to him it the time of their receipt. He testified that he had not given Ferguson
any instructions regarding the letters but said further, that he didn't think , they would
be answered.
10 This reference is to a practice of the packers concertedly taking five minutes recess
when the skids are full of packed boxes.
a These quotations are from O 'Leary's testimony. She was corroborated in part by
Magginnis. a
"Letters from Green and Coley were received on October 5 and 7 respectively. They
were not answered . Magginnis and O'Leary made an application in person on October 18.
Ferguson refused to reemploy them. It will be noted that, an 'Anglo-American , Blanche
Ryan, a member of the previous season ' s crew was working in the plant on October 18
190 ' DECISIONS OF, NATIONAL LABOR RELATIONS BOARD
His pay was $165 an hour He had no set hours but was expected to work
whenever the respondent had cars to get out. Ferguson testified that Martinez's
hours .might vary from 5 to 20 a day and that "Some days he'd start at nine
some days, ten, sometimes it would be afternoon and sometimes maybe he'd start
after supper." While Ferguson testified that Martinez was not a satisfactory
car loader, he`could specify no cause for complaint beyond stating that Martinez
"wasn't there all.the time to load them whenever you needed him" Asked to
specify these occasions, Ferguson said, "Well there was, one or, two nights, or ,
something he'd taken off and I said something to huin about that, but I'don't
remember, just what it was." After consideration of the indefinite schedule of
hours which the respondents expected Martinez to meet, the undersigned finds
no merit in this criticism. Ferguson further testified that ode of the truckers,
complained that he could not satisfy Martinez Ferguson directed the trucker
to -take fruit to another loader's cars and subsequently told Martinez "that he
shouldn't be that contrary with those boys." This mild reproof closed the inci-
dent. Ewing testified that he had known Martinez for several years. He was
asked : "Did Mr. Ferguson, tell you, Air. Martinez was a good car loader?" and
answered, "There is no question about that."
Martinez joined the_ Union in December 1943 and thereafter wore a union
button on his cap "everyday" while on the job. He was also active in soliciting
the Latin-American floor help to join the Union Quite a number did so. As
described above he was reprimanded by Ferguson, together with Coley, for,
union activities in the plant As noted above also Martinez signed, in the
union column, the petition presented to him by Ferguson. During the negotiat-
ing conferences in February and March his union activities were conspicuous
since he was the only Latin-American member of the union conmiittee. Under
these circumstances it is clear that 'the' respondents had knowledge of his union
membership and activities. '
That Ferguson was not strongly displeased with Martinez's work performance
is indicated by the fact that when Martinez asked on April 22, 1944, about return-
ing next season, Ferguson replied, "I'll be seeing you if there's work here"
However, when Martinez again applied on September 1, 1944, he was told by
Ferguson that all car loaders had been hired. This application was well in ad-
vance-of the season since actual work of loading cars did not begin until several
days after October 9. Martinez asked why he was not being given a job and was
told only that Ferguson "didn't want to."
3. Salvador Garza eJ
Garza was ,-a checker and was responsible for proper accounting for fruit
loaded into cars. The record contains no data as-to the length of his employment
in the plant. He joined the Union and last paid dues on March 12, 1944. This
payment was for May 1944.M In a letter received by the Union on December 28,
1944, Garza expressed his "desire to sever all relationships" with the-Union.
Garza did not appear as a witness. However Martinez testified that Garza
accompanied him on September 1, 1944, when Martinez applied to Ferguson for
employment. At the time, as Martinez testified and the undersigned finds, Fer-
guson later conferred with Garza in the office. Garza told Martinez thereafter
that he had been offered reemployment at a weekly rate of $40.00 which was $5.00
per week less than he had received in the preceding season. Various exhibits in
88 The respondents ' pay rolls carry this name as Salbador Garza. It appears with that
spelling on various lists compiled from the respondents ' records.
14 Nation so'testified from Garza ' s membership file card.
BONITA FRUIT COMPANY, INC. 191
evidence show that Garza was employed in the weeks preceding October 19,
October 26, and December 22, 1944. Ferguson testified, and'the undersigned finds, '
that Garza was rehired by Ferguson about October 15, 1944. He was still work-
ing in the plant at the time of the hearing.
Under these circumstances it will be recommended that so much of the com-
plaint as alleges discriminatory treatment of Salvador Garza by the respondents
be dismissed. ' '
Contentions of the respondents
Bonita explains that failure to rehire any of the packers who worked in the
1943-1944 season resulted from a decision made by'Ewing and Ferguson to train a
complete new crew of Latin-American girls as packers. When asked when this
decision was made, Ewing testified that "it could have been any time in the
summer from July on." The record above of the replies made by Ferguson to
applicants for reemployment suggests that'a definite decision was reached shortly
after September 7, 1944. On that date as stated above Ferguson told Walden that
his was the first packer application ; that no other packers had been hired and
that Ferguson did not then know what he was going, to do. On September 11,
however, Ferguson told Colvin that he had decided "to put on a whole new crew
and teach them to pack." While Ewing's testimony suggests that the decision
was not to rehire any member of the old crew was made jointly, after discussion
between himself and Ferguson, the latter when asked, "Whose idea was it, Mr.
Ferguson, that you would go out and get a bunch of . . . Latin American girls
and teach them to pack?", replied flatly, "It was mine" This statement by
Ferguson is consistent with testimony by Ewing recorded as follows:
Q Did you give Mr. Ferguson any instructions as to what kind of help to
hire in the plant?
A. No
Q. You left that entirely,up to him?
A Yes.
The undersigned' notes' that this plan was an exact fulfillment of Ferguson's
intentions expressed in November 1942 to Tonic Coats. Ferguson's explicit state-
ment at that, time that he proposed 'to eliminate union packers has large sig' '
nificance. That this purpose persisted and definitely influenced the decision made
during the summer to refuse reemployment to union)'employees is 'shown' by the'
testimony of a ;disinterested witness. Jack Adams had been employed 'by ' the
respondents to install colorad machinery. About the middle of July Ferguson,
in conversation with Adams during the lunch hour, stated that the plan was to
change the name ofWahlsing. At that time Ferguson did not know what the new
name would be. However Ferguson stated as recorded in the uncontroverted
and credited testimony of Adams:
. .. We are gonna have a whole new crew this year; we are gonna hire a
whole new bunch and teach them how to pack . . We have had some union
packers here and some non-union packers and the union packers made it so
hard on the non-union packers that they couldn't work .
Bonita further explained that the plan to expand the output from the 718 cars
shipped, during the 1943-1944 season to 1,200 cars in the following season made it
unwise to rely on the old crew: The contention is that the 18 to 23 experienced
packers in the old crew could not be expected to handle this enlarged output. In
support of this argument Ewing and Ferguson pointed out that the new crew
normally consisted of 36 packers. This contention fails to take account of the
fact that one-third . of the 1943-1944' season 's shipments had been in Standard
I
192 / DECISIONS OF NATIONAL LABOR RELATIONS BOARD
boxes while all the 1944-1945 pack was to be in Bruce boxes and sacks. Ewing
testified that he and Ferguson "decided they would pack nothing but Bruce boxes
this season ." Ferguson testified that a packer could fill 3 or 4 Bruce boxes to one
Standard box. Other witnesses, well experienced in citrus fruit packing, set this
'figure at 3 to 1. The output of the plant during the 1943-1944 season had been in
round numbers 480 cars packed in Bruce boxes and 240 cars packed in Standard
boxes. If packing in Standard boxes were discontinued, 720 cars packed in
Bruce boxes could be handled by the same crew in the time required for the 240
cars packed in Standard boxes. This number added to the 480 cars, previously
packed in Bruce boxes would give the 1,200 car output desired.
It was Etwing's testimony that the decision was to hire everybody possible from
residents of Weslaco "even though we had to train some of them to pack grid do
the other work." Ferguson testified that the procedure followed was to send out
word by Latin-American boys that an opportunity would be given to applicants to
attend a school of instruction in packing methods Those who made good would
thereafter be given employment Ferguson reluctantly admitted- that he did not
expect these Latin-American emissaries to contact any AngloAmerican'packers.
He further admitted that he knew tat at least four packers, Coley, Finley, Tonie
Coats, and Colvin, lived in Weslaco. He testified that Coley, and Finley were
competent packers. Yet he made no move to communicate with any one of the
four. The record shows that about half of the packer complainants lived in
Weslaco during the 1943-1944 season while all the others lived nearby or in
neighboring towns. That they were all available is proven by the record of their
employment with the respondents and by their applications set forth above.
Both Ewing and Ferguson testified that they did not consider hiring a mixed
crew of Anglo- and Latin-American packers because they did not think the
members of the old crew of Anglo-Americans would work with Latin-Americans.
'Ewing stated that he did not know of any plant in the valley that had a crew
of packers so constituted. It appears in the testimony of Sawnie B. Smith, a
witness called by the respondent, who was a partner in a citrus fruit shipping
concern, that his plant was currently employing both Anglo- and Latin-American
packers. The opinion of Ewing and Fei guson that their old crew would not con-
sent to pack beside LatinAmericans'was purportedly based on an 'occurrence in
the plant in December 1942. Ferguson testified that he had then hired a Latin-
American packer named Ramior Salazar 36 Ferguson's testimony further states
that during Salazar's first day at work the•other packers who'were members of
the A. F. of L "walked out" because Salazar did not belong to that organization.
Ferguson 's testimony as to the incident reads :
Well, I tiled to reason-with them They wouldn't agree to it,so then 1 went
to the Mexican boy and I told him that I had to get the job done and Mat
I guessed that he would have to quit and he wanted to know why, and I
asked them the ones that' walked out, and they said because he didn't
belong to their Union . . so I went and talked to them and they said all
right if he'd come into the Union, well'they'd work with hint and then
I asked him to go ahead . . .
Ferguson further testified that within a day or two Salazar returned and
i eported that he had joined the A F of L whereupon Ferguson permitted him to
i eturn to his job as a packer. The packers then notified Ferguson that "they
would refuse to work with hun [Salazar], Union or no Union." Ferguson testi-
fied that a Backer, Morris Burdette, was the principal spokesman and that
This name is sometimes confused with Joe Alamonzo in the transcript of the proceed-
ing - .
BONITA FRUIT CODIPANY, INC. 193
O'Leary also participated in the discussions. Thereafter, as Feiguson testified,
he told Salazar, "I guessed under the cii cumstances that he would have to quit
that I had fruit to be packed and that I hated for that to come up, but that it had." -
Ferguson testified that six of the complainants, among others named, had been
Working in the plant when the incident involving Salazar occurred." Two of
these, Pauline Coates and Dlagginnis, were not questioned about this matter
Another, Lawrence Lequeux, testified that he was absent because of illness dur-
ing the "entire week" in which Salazar had worked as a packer. Tonle Coats
testified under cross-examination that she had been present and had worked in
the packing line while Salazar worked "for a day or two " At the time Coats
understood he had quit but did not know for what reason. Coats further stated
that she had no knowledge of any refusal by the packers' to work with 'Salazar.
Colvin, when questioned under cross-examination, testified that she was present
while Salazer packed and that "he worked until five minutes of six that evening
and Ferguson said something to hint - and lie left and I never seen any more
of him." Colvin disclaimed knowledge of the reason that Salazar's employment
terminated. She further testified that the packers did not strike but "packed
all day long" and that "we never did tell Dlr. Ferguson anything. Nobody said
anything to him about that Mexican working." O'Leary was not questioned about
this incident when first called as a'witness by the Board She was recalled
during the Board's rebuttal and testified that Salazar "came on in' the after-
noon, and worked until ten that night," that he returned next day and worked
"until around five minutes before six." During this time O'Leary aided Salazar
,to the extent of showing him "where to stamp the boxes, and which way to set
then off and which boxes to use," in order to meet Ferguson's instructions.
When asked whether she knew why Salazar left, O'Leary replied: "I -don't know,
why lie left, but I saw Dlr.' Ferguson back there talking to him and when,1,looked
up again lie was taking off his apron, and got his hat and then he walked out."
O'Leary stated that she was a member of the A F. of L union at the time
and wore her union button in the plant. A packer, Norwood Black, was shop
steward. O'Leary denied positively that she had any contact with Ferguson
about the employment of Salazar as a packer. She further denied that any
member of the Union asked that Salazar be dischaiged
In resolving this conflict of testimony the undersigned has been influenced,
not only by the strong preponderance-of testimony by the Board's witnesses
and its mutually corroborative character, but by the fact that these witnesses
were trustworthy from every view point Ferguson, on the contrary was on
certain matters a very.reluctant witnesses and the records show frequent failures
of memory on his part on matters much more recent in date than the incidents
under discussion Under these cncunstances, the undersigned rejects the
testimony regarding the Salazar 'incident given by Ferguson and credits that given
by the Board's witnesses.
The By-laws of the Union provide for "democratic rank and file control" with-
out regard to "race, color or nationality " Nation testified that "as far as'
discrimination is concerned, there is absolutely none of that tolerated in our
organization." Had the respondents been desirous of ascertaining the attitude
of the Union toward a mixed crew it was furnished favorable opportunities to
acquire this information. Nation, as the accredited agent of the Union recog-
nized--as the exclusive representative of the employees, telephoned Ewing during
the summer asking for an, opportunity to continue bargaining and was met by
a refusal Nation also telephoned Ferguson between September 15 and October
1, 1944, to inquire whether union nienibers would be rehired in the 1944-45
670417-46-vol 64--14
194 DECISIONS OF NATIONAL LABOR -RELATIONS BOARD
season At-that dine Ferguson indicated that he was not authorized to discuss
the reemployment of the workers.
There was one exception to the refusal to rehire packers from the 1943-1944
crew.' As Ferguson testified, and the undersigned finds, Blanche Ryan. who had
worked as a packer during the preceding season, came to his home "about a
week or ten days after we-started packing" and requested employment as a
packer "in order get enough money to go to her husband" who was in the Navy
and stationed at Corpus Christi, Texas. Ferguson testified that he had some
hesitation in giving employment to Ryan lest as an experienced and rapid worker
she might pack a disproportionate amount of the fruit and incur the displeasure
of his inexperienced crew for "hogging the fruit." However he agreed to employ
Ryan ahd she worked for about two weeks It will be uoted,'on reference to the
record above of applications by. the complainants, that several of them applied
and we're refused employment after Ryan was taken on Nation testified, and
the undersigned finds, that the Union's membership file card for Ryan shows
,that she had piud clues through the month of April 1944, and that'she and Garza
were the only employees hired by the respondents who had ever been members of,
the Union. This testimony by Nation is corroborated by Ferguson's testimony
that he had not seen a single union button in the plant since the current season's
employment began
The respondent's contention that the failure to rehire any of the packer com-
plainants was due to its belief that they would be unwilling to work with Latin-
Americans is further weakened on consideration of the case of'car loader Mar-
tinez. During the 1943-1944 season two carloaders were regularly employed,
Martinez and Nola Moore During the last two or three weeks of the season
Moore was ill and Manuel Briones J6 worked -in his place. The union records'
show that Moore was never a member. There is no direct testimony as to union
affiliation by Briones He was hired after the period of active union solicitation
was past. Briones had not previously worked in the plant. When he was hired
"the season had slacked off" and car loading was "way below" 'the volume at the
height of the season Yet on his relatively slight work record he was hired in
preference to Martinez who had worked, the full season. Ewing testified that
Ferguson assured him that both- Moore and Briones "were better car loaders
than Martinez ever was " Ewing admitted that he had known Martinez for
"several years" and that he had heard of no complaints of Martinez's work as-
a car loader during the previous season or "anywhere in the valley." It is clear
that Ferguson was directly responsible for the respondents' failure to rehire
Martinez As stated above Ferguson had reprimanded Martinez for union activ-,
ity and Martinez had defied Ferguson by signing in the union column the paper
circulated by Ferguson, when Ferguson pointedly suggested to the contrary. ' ,
Concluding findings
As correctly stated by Bonita's brief the question for solution here is whether
it refused "to reinstate the fifteen [complainants] because of their affiliation or
-membership in [the Union] " That employers may not so discriminate against
union adherents has been authoritatively decided by the United States Supreme
Court. The Court found protection of union members,at the time of hiring to be
of the highest importance, saying:
Discrimination against union labor in the hiring- of ni n is a dam to self-
organization at the source of supply. The effect of such discrimination is
I Bonita 's brief is in error in stating that Sam Gomez and Moore were carloaders during
the 1943-1944 season. Both Ferguson and Ewing testified that the carloaders were
Martinez, Moores and Briones.
BONITA FRUIT COMPANY, INC. 195
not confined to the actual denial of employment; it inevitably operates
against the whole idea of the legitimacy of organization. In a word, it
undermines the principle which, as we have seen, is recognized as basic to
the attainment of industrial peace."
On all of the above the undersigned concludes and finds that Vahlsing, when
confronted with the certification of the Union's majority position, with the
necessity of negotiating a collective bargaining agreement and with the imminent
probability that its policy of evasion and delay would be terminated by positive
action of N. W. L. B., resorted-to the subterfuge expressed in its telegram to the
N W. L. B. that it was "closing np' our Weslaco branch and going out of the
fruit business." There was, however, no break in its activities. It proceeded to
enlarge the plant and prepare it for operation in the 1944-45 season. Vahlsing's
agents remained in control and made all arrangements for the organization of,
Bonita and to establish it in the Weslaco plant. Ferguson, who'had actively
combatted the, Union throughout its period of organization and certification,
remained' in charge and hired Bonita's force. He carried out the plan first
stated by him to Tonie;Coates in 1942 and reaffirmed to Adams in July 1944, and
employed a full new crew of non-union packers The fact that these workers
were Latin-Americans is immaterial here. Ferguson was willing to employ Anglo-
American' packer Ryan, a member of the preceding season's crew, to work with
Latin-Americans but it is clear that she worked as a non-union employee. His
attitude toward the complainants was clearly, albeit reluctantly, admitted in his
testimony under cross-examination as a witness for the respondents. Excerpts
therefrom read as follows :
Q. Well, regardless of whether it was at that time or not, did you plan or
intend to employ anyone of them [the complainants] under any circum-
stances during the 1944-45 season?
A. My intention at that time, at that time, was not to employ any of them.
* * * * * * *
Do you, now, this moment intend to employ any of the persons listed in
the Board's complaint . . . unless you were made to?
A. At this moment, no.
Ferguson's attitude at the beginning of, the current season was in striking con-
trast to the hiring policy he pursued in the preceding season. When Tonie Coats
applied in September 1943, an office employee assured her that ". . . Ferguson was
expecting all of his old packers back." , Coats testified further that in October
1943 "all of his old packers from the year before was there at the beginning of
the new season." It is significant that Ferguson's policy of rehiring packers
changed radically after they had joined the Union and engaged in concerted
activity.
Final demonstration of the underlying reason for the failure to rehire union
members is found in the case of Martinez. His record was clear and Ferguson
had told him at the close of the 1943-44 season, "I'll be seeing -you if, there's
work here." Yet, on September^1, 1944, well before the Latin-American candi-
dates for work as packers had been assembled, Ferguson refused to rehire
Martinez, a Latin-American car loader, and gave this employee with a full
season's service in the plant no better reason for his refusal than, "I don't
want to." Ferguson had available for ready reference the record of the
union atfili`ation of his' floor workers compiled as a result of his, circulation'
of the paper calling upon them to sign either as Union or as Non-union This
e'' Phelps Dodge Corporation v. N. L. R. B., 311 U. S 177.
196' DECISIONS OF NATIONAL LABOR RELATIONS BOARD
conduct, palpably in derogation of the Act, was committed on the eve of the
Board's election. Martinez signed this paper as a union adheient The under-
signed finds in Ferguson's refusal to rehire Martinez an act of retaliation
for his defiance of Ferguson's plainly expressed, desire that Martinez add his
name to the Non-union list. '
-It will be noted that the respondents made a clean sweep of all union members
who were not willing to renounce their union activities. When the new season
opened every union affiliate including every member of the Unions negotiating
committee •who had participated in the unfinished negotiations later taken over
by the Regional Office of N W. L. B. was refused employment. It is difficult
to imagine more effective measures to nullify the Board's certification of the
Union as the employee's exclusive bargaining agent.
The undersigned concludes and finds that the refusal of the respondents to
rehire the complainants listed in Appendix A of this Intermediate Report was
discriminatory, based, on the, union membership and activities of these com-
plainants. By such refusal to rehire, the respondents have discriminated in
regard to their hire and tenure of employment and discouraged membership in
a labor organization, thereby violating Section 8 (3) of the Act. By these acts
the respondents have interfered with, /restrained, and coerced their employees
in the exercise of tbe.rights guaranteed in Section 7 of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
It is found that the activities of the respondents set forth in Section ill,_
above, occurring in connection with the operations of the respondents de-
scribed in Section I, above, have a close, intimate, and substantial relation to
trade, traffic, and commerce among' the several States, and tend to lead to
labor. disputes burdening and obstructing commerce and the free flow of
commerce.
V. THE REMEDY
Having found that the respondents have engaged in certain unfair labor
practices, the undersigned will recommend that they cease and desist theretrom
and take certain affirmative action found necessary in order to effectuate the
policies of the Act. ,
It has been found that the respondents, by refusing to hire the 14 former
employees named in Appendix A, have discriminated in regard to their hire
and tenure of employment thereby discouraging membership in the Union. It
will be recommended that the respondents offer these employees immediate and
full reinstatement to their former or substantially equivalent positions without
prejudice to their, seniority and other rights and privileges they may have.
It will be further recommended that the respondents make'each of them whole
for any loss of pay he or she may have suffered by reason of the respondents'
discriminatory acts by payment to each of them of 'a sum of money equal to
the amount he or she normally would have earned as wages from the date
of the discriminatory refusal to hire to the date of the respondents' offer of
reinstatement, less his or her net earnings 38 during said period.
's 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 respondents 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'Conipany and United Brotherhood of Carpenters and Joiners of America,
Lumber and Sawmill Workers Union. Local 2590, 8 N. L. R . B. 440- Monies received for
work performed upon Federal , State, county, municipal , or other work -relief projects shall
be.considered as earnings See Republic Steel Corporation v. N. L. R. B ., 311 U. S 7.
BONITA FRUIT COMPANY, INC. 197
Having found that the respondents did not engage in unfair labor practices
by discriminating with regard to the hire and tenure of employment of Salvador
Garza , it will be recommended that the allegations of the complaint in this
respect be dismissed.
Upon the basis of the foregoing findings of fact and upon the entire record in
the case, the undersigned makes the following:
CONCLUSIONS OF LAW
1. Texas Fruit and Vegetable Workers,Union, Local 35,.F.ood, Tobacco, Agri-
cultural and Allied.\Vorkers Union, CIO, are labor organizations within the.mean-
iug of Section 2 (5) of the Act.
2 By discriminating in regard to the hire and tenure of employment of the
14 individuals named in Appendix A, attached to this Intermediate Report, thereby
discouraging membership in a labor organization, the respondents have engaged
in and,are engaging in unfair labor practices within the meaning of Section 8 (3)
of the Act.
3 By interfering with, restraining, and coercing their employees in the exercise
of the rights guaranteed in Section 7 of the Act, the respondents have engaged in
and are engaging in unfair labor practices within the meaning of Section 8 (1)
of the Act. .
4 The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 (6) and (7) of the Act.
5. The respondents have not engaged in unfair labor practices with regard to
the hire and tenure of employment of Salvador Garza.
RECOMMENDATIONS
Upon the basis of the above findings of fact and conclusions of law, the under-
signed recommends that the respondents, Bonita Fruit Company, Inc., and F. H.
Vahlsmg, Inc., and their officers, agents, successors and assigns shall:
1 Cease and desist from :
(a) Discouraging membership in Texas Fruit and Vegetable Workers Union,
Local 35, Food, Tobacco, Agricultural and Allied Workers Union, CIO, or any
other labor organization by discriminating in regard to hire and tenure of
employment or any terms or conditions of employment of their employees;
(b) In any other manner interfering with, restraining, or coercing their em-
ployees in the exercise of the right to self-organization, to form labor organiza-
tions. to join or assist Texas Fruit and Vegetable Workers Union, Local 35, Food,
Tobacco, Agricultural and Allied Workers Union, CIO, or any other labor organi-
sation, to bargain collectively through. representatives of their own choosing and
to engage in concerted activities for the purpose of collective bargaining or other
mutual aid or protection as guaranteed in Section 7 of the Act.
2 Take the following affirmative action which the undersigned finds will effec-
tuate the policies of the Act :
(a) Offer to the 14 individuals named in Appendix A, attached to this Inter-
mediate Report, immediate and full reinstatement to their former or substantially
equivalent positions without prejudice to their seniority or other rights and
privileges; -
(b) Make whole these former employees for any loss of pay they may have
suffered by reason of respondents' discrimination against them by payment to
them of a suns of money equal to the amount which they normally would have
earned as wages from the date of the respondents' discriminatory refusal to hire
198 DECISIONS ` OF NATIONAL LABOR RELATIONS BOARD
to the date of the respondents' offer of reinstatement , less their net earnings
during said ' period ;
(c) Post at ' the plant at Weslaco , , Texas, copies of the notice ' attached hereto
marked Appendix A. Copies of said notice , ' to be furnished by the Regional
Director of the Sixteenth Region , shall, after being duly signed by the representa-
tives of Bonita and Vahlsing , be posted by the respondents immediately upon
receipt thereof and maintained by them for ' sixty ( 60) consecutive clays there-
after in conspicuous places , including all places where notices to employees are
customarily posted. , Reasonable steps shall be taken by the respondents to insure
that said notices are not altered , defaced , or covered by any other material : '
(d) File with the Regional Director for the Sixteenth Region on or before
ten (10 )• days from the receipt of this Intermediate Report , a report in writing
setting forth in detail the manner and form in which the respondents have com-
plied with the foregoing recommendations
It is further recommended that , unless on or before ten (10 ) clays from the
receipt of this Intermediate Report the respondents-notify said Regional Director
in writing that they will comply with the foregoing recommendations the National
Labor Relations Board issue an order requiring the respondents to take the.
action aforesaid.
As provided in Section 33 of Article II of the Rules and Regulations of the
National Labor Relations Board , Series 3. as amended , effective July 12, 1944,
any party or counsel for the Board may within fifteen (15) days from the
date of the entry of the order transferring the case to the Board , pursuant
to Section 32 of Article II of said Rules and Regulations , file with the Board,
Rochambeau Building , Washington 25, D C. an original and four copies of a
statement in writing setting forth such exceptions to the Intermediate Report or
to any other part of the record or proceeding ( including rulings upon all motions
or objections ) as he relies upon , together with the original and four copies of a
brief in support thereof Immediately upon the filing of such statement of'excep-
tions and/or brief,.the party or counsel for the Board filing the same shall serve
a copy thereof upon each of the other parties and shall file a copy with the
Regional Director . As further provided in said Section 33, should any party
desire permission to argue orally before the Board , request therefor must be
made in writing to the Board within ten ( 10) days from the date of the order
transferring the case to the Board
Dated February 24, 1945.
CHARLES E. PERSONS,
Trial Examiner.
APPENDIX A
NOTICE TO ALL EMPLOYEES
PURSUANT TO THE RECOMMENDATIONS OF A TRIAL EXAMINER
of the National Labor Relations Board, and in order to effectuate the policies of -
the National Labor Relations Act, we hereby notify our employees that :
We will not in any manner interfere with, restrain, or coerce our employees
in the exercise of their right to self-organization, to form labor organizations,
to join or assist Texas Fruit and Vegetable Workers Union, Local 35, Food,
Tobacco, Agricultural and Allied Workers Union, CIO, or any other labor
organization, to bargain collectively through representatives of their own
10 See footnote 38, supra.
BONITA FRUIT COMPANY, INC. 199
choosing, and to engage in concerted activities for the purpose,of collective
bargaining or other mutual aid or protection.
We will offer to the employees named below immediate and full reinstate-
ment to their former or substantially equivalent positions without prejudice
to any seniority or other rights and privileges previously enjoyed, and make
them whole for any loss of pay suffered as a result of the discrimination.
Pauline Coates Clarence Abston Lequeux
Tonie'Coats Lawrence Addison Lequex
T. G. Coley, --'Pearl Magginnis .
Rhoda Colvin Juan Martinez
Mattie Finley May O'Leary
Electra Green Gladys Shelton
Jim Green James (Jim) Walden
All our employees are free to become'oi remain members of the above-named
,union or any other labor organization. We will not discriminate in regard to hire
or tenure of employment or any term' or condition of employment against any
employee because of membership in or activity on behalf of any such labor
organization. -
Dated -----------
-------------------------------------
By -------------------------=----------
(Representative) (Title)
Noip.-Any of the above-named employees presently serving in the armed,forces
of the United States will be offered•full reinstatement upon application,in accord-'
ance with the Selective Service Act after discharge from the armed forces. '
This notice must remain posted for 60 days from the date hereof, and must not
be altered, defaced, or covered by any other material.