John W. Campbell, Inc.

National Labor Relations Board - Board Decisions

Mar 18, 1946

66 N.L.R.B. 881 (N.L.R.B. 1946)

In the Matter of JOHN W. CAMPBELL, INC. and LOCAL 9, UNITED
CANNERY, AGRICULTURAL, PACKING AND ALLIED WORKERS OF AMERICA,
C. I. O.
Case No. 10-C-1526.-Decided March 18, 1946
Mr. John H. Garver, for the Board.
Mr. B. E. Hendricks, of Miami, Fla., for the respondent.
Mr. George Headley, of Miami, Fla., for the Union.
Mr. Ben Grodsky, of counsel to the Board.
SECOND DECISION
AND
ORDER
STATEMENT OF THE CASE
Upon a charge duly filed by United Cannery, Agricultural, Packing
and Allied Workers of America, Local 9, C. I. 0., herein called the
Union, the National Labor Relations Board, herein called the Board,
by its Regional Director for the Tenth Region (Atlanta, Georgia),
issued its complaint dated April 25, 1944, against John W. Campbell,
Inc., herein called the respondent, alleging that the respondent had
engaged in and was engaging in unfair labor practices affecting com-
merce within the meaning of Section 8 (1) and (3) and Section 2
(0) and (7) of the National Labor Relations Act, 49 Stat. 449, herein
called the Act. Copies of the complaint and the charge, accompanied
by notice of hearing, were duly served upon the respondent and the
Union.
With respect to the unfair labor practices the complaint alleged
in substance that : (1) the respondent discharged Willa Inlow, Fannie
Smith, and Kate Mizell on or about February 16, 1944, and has since
refused to reinstate them because they joined and assisted the Union,
and (2) the respondent from on or about February 1, 1944, to the
date of issuance of the complaint urged, persuaded, threatened, and
warned its employees not to become or remain members of or assist
the Union, and vilified, disparaged, and expressed disapproval of the
Union. The respondent's answer filed May 13, 1944, denied the com-
mission of any unfair labor practices.
66 N. L . R. B., No. 108.
881
686572-46-57
882 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Pursuant to notice, a hearing was held in Miami, Florida, on May
8,13,15, and 16,1944, before William J. Isaacson, the Trial Examiner
duly designated by the Chief Trial Examiner.'
The Board and the respondent, represented by counsel, and the
Union, by a representative, participated in the hearing. Full oppor-
tunity to be heard, to examine and cross-examine witnesses, and to
introduce evidence bearing on the issues, was afforded all parties. At
the beginning of the hearing the respondent moved to dismiss the
entire complaint on the ground that the employees herein involved
were agricultural laborers within the meaning of Section 2 (3) of
the Act and therefore were excluded from the application of the Act.
The motion was denied . During the hearing, the Board's counsel
moved to amend the complaint to name John W. Campbell, an indi-
vidual doing business in Okeechobee, Florida, as an additional party
defendant in the instant proceeding. Upon objection by the respond-
ent the motion was denied. At the close of the Board's case, the
respondent moved to dismiss the complaint as a whole, and various
parts thereof, on the merits. The Board's counsel joined the respond-
ent in its motion to dismiss the Board's complaint insofar as it alleged
that the respondent had urged, persuaded, threatened, and warned its
employees not to become or remain members of or to assist the Union,
and vilified, disparaged and expressed disapproval of the Union, and
to that extent the respondent's motion was granted. The remainder
of the motion was denied. At the close of the hearing, the respondent
moved to dismiss the remainder of the complaint on the merits. The
Trial Examiner reserved ruling on the motion and later denied it
in his Intermediate Report. At the close of the hearing the Board's
counsel moved to conform the pleadings of the respondent and the
Board with respect to formal matters to the evidence adduced. The
motion was granted without objection. At the close of the hearing
all parties were afforded an opportunity to argue orally on the record
before the Trial Examiner and counsel for the Board and the respond-
ent participated in such argument. None of the parties filed briefs
with the Trial Examiner although afforded an opportunity to do so.
On July 10, 1944, the Trial Examiner issued his Intermediate
Report, finding that the respondent had engaged in and was engaging
in certain unfair labor practices within the meaning of Section 8 (1)
and 8 (3) of the Act, and recommending that it cease and desist there-
from and take certain affirmative action. Thereafter, the respondent
filed exceptions to the Intermediate Report and a supporting brief.
No request for oral argument before the Board at Washington, D. C.,
'On May 8, 1944, the date this proceeding was noticed for hearing and before the
taking of evidence, the Trial Examiner granted the respondent 's motion requesting a
continuance of the hearing to May 13, 1944, on the ground that the respondent had not
received a copy of the above-described complaint and notice of hearing until May 3.
JOHN W. CAMPBELL, INC. 883
was made by any of the parties, and none was held. The Board con-
sidered the Intermediate Report, the exceptions and brief filed by
the respondent, and the entire record in the case, and, on October 29,
1944, issued its Decision and Order finding that the respondent had
engaged in and was engaging in unfair labor practices within the
meaning of Section 8 (1) and 8 (3) of the Act and ordering the
respondent to cease and desist therefrom and to take certain affirma-
tive action.
The respondent failed and refused to comply with the Decision
and Order of the Board. On December 30, 1944, the Board filed a
petition for the enforcement of its order with the Circuit Court of
Appeals for the Fifth Circuit. On April 9, 1945, the respondent filed
an application, requesting the court to order the Board to take the
testimony of one W. A. Blanchard, concerning the discharge of Fan-
nie Smith, Willa Inlow, and Kate Mizell, all three of whom the Board
had found were discriminatorily discharged and had ordered rein-
stated with back pay. On May 9, 1945, the court granted said
application, reserving ruling on all other questions.
Pursuant to the order of the court, a further hearing was held on
June 29, 1945, at Wilmington, North Carolina, before Trial Examiner
William J. Isaacson, a duly designated agent of the Board, to take
the testimony of said W. A. Blanchard. The Board and the re-
spondent were represented by counsel and participated in the hearing;
the Union was not represented. Full opportunity to be heard, to
examine and cross-examine the witness, and to introduce evidence
bearing on the issues raised by the Order reopening the record, was
afforded all parties. Although opportunity was afforded the parties.
no arguments were made before, or briefs filed with, the Trial
Examiner.
On October 31, 1945, the Trial Examiner issued his Supplemental
Intermediate Report in which he discredited Blanchard's testimony,
after a detailed analysis thereof, and recommended that the Board
reaffirm its Order hitherto entered in this matter. Thereafter, the
respondent filed exceptions to the Supplemental Intermediate Report.
No request for oral argument before the Board at Washington, D. C.,
was made by any of the parties, and none was held. The Board
has considered the rulings made by the Trial Examiner at the
original hearing and at the supplemental hearing and finds that
no prejudicial error was committed. The rulings are hereby affirmed.
In conformity with the mandate of the Circuit Court of Appeals
for the Fifth Circuit, the Board has ' considered the Intermediate
Report, the exceptions and brief filed by the respondent thereto,
the Supplemental Intermediate Report, the exceptions filed by the
respondent thereto, and the entire record in the case, and finds that
884 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the exceptions are without merit insofar as they are inconsistent
with the findings, conclusions, and order hereinafter set forth.2
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT 4
The respondent, a Florida corporation, has its principal office and
place of business in Goulds, Dade County, Florida, where it operates
a packing plant employing an average force of about 40 employees.
At its packing plant, the respondent is engaged in the business of
receiving , handling, washing, grading, sizing, assembling, packing.
and shipping tomatoes .5 During the 1944 packing season which
continued from about January 15 until about the end of April 1944,
the respondent packed tomatoes which the respondent grew upon
1,000 acres of land located in Dade County and under lease by the
respondent . The respondent employed about 175 field laborers for
the cultivation of its crops. An undisclosed portion of this acreage
is cultivated by the respondent's tenants, each of whom, in pursuance
of a share-cropping arrangement, receives the seed and necessary
agricultural implements from the respondent, and cultivates his re-
spective plot for a fixed percentage of the proceeds received there-
from . While the respondent primarily handles and processes its own
tomato crop, at the close of the pack of the respondent's crop on
March 23, the respondent processed and packed the tomatoes of
other growers for about a month. About 20 percent of the tomatoes
processed and packed during the 1944 season were the tomatoes of
other growers. Excluding the tomatoes which the respondent thus
packed for other growers, it packed about 300,000 crates of tomatoes
valued at approximately $200,000, 90 percent of which it shipped
by railroad and truck to points outside the State of Florida. The
respondent purchases all of its machinery, equipment, and materials
from points within the State of Florida.6
2 This Second Decision and Order supersedes the original Decision and Order issued
in this case on October 29, 1944
3 Unless otherwise indicated , the findings of fact hereinafter set forth are based upon
admitted facts or uncontradicted evidence which the Trial Examiner and the Board
credit.
4 These findings are based upon a stipulation between the Board 's counsel and the
respondent , the testimony of John W Campbell , the respondent 's president , and the
undisputed testimony of several other witnesses.
5 During a brief period each season the respondent processes and packs some potatoes
at its packing house in Goulds , which it cultivates in fields it holds under lease The
record discloses that the respondent processed and packed about 5 acres of potatoes in
1944 at Goulds. The remainder of the respondent 's potato clop was packed at a local
cooperative exchange.
O The extremely perishable nature of tomatoes requires that the picking, packing, and
shipping proceed without interruption . Thus, a labor dispute interrupting the packing
operatiogs of the respondent would not only interrupt the flow of tomatoes from the
fields to the markets while the dispute was in progress , but would , if it lasted an appre-
ciable period , decrease the amount of tomatoes shipped that season.
JOHN W. CAMPBELL, INC.
II. APPLICATION OF THE ACT TO THE RESPONDENT'S
PACKING-HOUSE EMPLOYEES
885
This proceeding concerns only the respondent's packing house and
packing-house employees, the function and personnel of which are
entirely separate and apart from the respondent's field work and
field employees. The respondent's packing house, consisting of a
large plant located within the town of Goulds, is equipped with
specialized machinery for the mass production, handling, and pro-
cessing of tomatoes. When the tomatoes are received at the plant
they are dumped into bins and moved onto a conveyor roller. The
conveyor first moves the tomatoes into a soaking tank where they
pass between brushes which scrub each tomato with water. They
then move automatically into a waxer where wax is applied, and
then proceed parallel to grading tables. At the grading tables, one
group of graders removes the inferior tomatoes (culls) and over-
ripe tomatoes (pinks), another removes the first grade tomatoes,
and a third group checks the work of the first two groups. This
sorting operation requires a high degree of proficiency and skill.
After being graded the tomatoes are moved onto the sizers where
they are further sorted according to size, and then directly into
crates (lugs)? The tomatoes are then trucked to the loading plat-
forms and transferred to railroad cars and trucks for shipment to
markets.
The work of the employees here involved relates exclusively to
the foregoing operations.8 Each employee has one or more specialized
tasks in connection with the operation of the equipment and machines
which handle and process the tomatoes. The crews which do the
packing are entirely distinct from the field crews which cultivate
and harvest the crop. The skills required in packing are entirely
different from those required in cultivating and harvesting and
the wage scales differ accordingly. While the field hands are Negroes,
who live in accommodations furnished by the respondent, the packing-
house employees are white, who live in Goulds and the surrounding
towns in their own housing accommodations.
Upon the foregoing facts, the respondent's contention that the
packing-house workers are "agricultural laborers" within the meaning
of Section 2 (3) of the Act and therefore excluded from the opera-
' Prior to the 1944 season tomatoes were individually wrapped and packed. During
the 1944 season , as a result of a shortage of labor and a dispute between the "wrappers"
and the respondent over the rate of pay per crate the respondent dispensed with the
wrapping operation and thereafter "bulk -packed" its tomatoes in the manner above set
out.
s The following classifications of workers are employed at the Goulds plant : graders,
"fillers" (who fill boxes ), mailers, carloaders , "checkers" ( who check the number of lugs
in cars ), truckers , and "handy men "
886 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tion of the Act is without merit. Where an operation once performed
on a farm has thus become specialized, removed from farm to town,
and is performed under factory conditions, the workers cannot be
considered "agricultural laborers" as the term is used in common
parlance. There is nothing in the legislative history to indicate
that Congress intended by the words "agricultural laborers" to
exclude from the Act workers of the category here involved. As
the facts of this case disclose, the conditions of inequality of bargain-
ing power, with resulting industrial strife and unrest, described
in Section 1 of the Act, exist in relation to the workers here involved
to fully as great an extent as in any other enterprise within the
scope of the Act. There is nothing in the instant case resembling
the relationship of the farmer and the "hired man," the type of
situation to which, as the Ninth Circuit Court of Appeals pointed
out in North Whittier Heights Citrus Ass'n. v. N. L. R. B., 109 F.
(2d) 76 (C. C. A. 9), cert. denied 310 U. S. 632, Section 2 (3) is
most clearly applicable. The conclusion reached by the court in
the North -Whittier case in squarely applicable here. That con-
clusion reads as follows :
Industrial activity commonly means the treatment or processing
of raw products in factories. When the product of the soil
leaves the farmer, as such, and enters a factory for processing
and marketing it has entered upon the status of "industry." In
this status of this industry there would seem to be as much
need for the remedial provisions of .the Wagner Act, upon
principle, as for any other industrial activity.9
The respondent's claim that whether packing-house employees are
agricultural laborers within the meaning of the Act depends solely
upon whether the packing-house operator and grower of the crop
packed are separate and distinct legal entities is without support
either in the Act and its legislative history or the judicial decisions
interpretative of the Act. Although the matter of legal title is a
relevant factor in determining whether employees fall within the
statutory exemption, it is not, when viewed in conjunction with the
foregoing facts, significant, let alone decisive. The activities in
which the employees herein are engaged are not incidental to the
respondent's farming operation, but form an integral part of and
contribute essential services to what is clearly an industrial enter-
prise; the nature of the employees' function and the character of
the employing enterprise are not, under the circumstances of the
instant case, altered by the fact that the respondent is a grower
9 See also N. L R. B v. Tovrea Packing Co, 111 F. ( 2d) 626, 628 (C. C. A. 9 ), cert.
denied 311 U. S. 668.
JOHN W. CAMPBELL, INC. 887
of such proportions that it is enabled to operate its own packing
house.1o
Nor are we persuaded to the contrary by the respondent's argument
that the term "agricultural labor" was given the meaning for which
it contends in the regulations and the judicial decisions interpreting
the meaning of that term in the original Social Security Act,ll and
in the court decisions interpreting the various State unemployment
compensation statutes modeled after the Federal Social Security
Act and their respective regulations .12 See Board decisions cited
in footnote 10, supra. The congressional reports upon the original
Social Security statute taken in conjunction with the reports upon
the amendment to the Social Security Act extending the term "agri-
cultural labor" to exclude from the operation of that statute em-
ployees engaged in the packing of fruits and vegetables whether
or not the packing house was owned by the grower or a separate
legal entity and even though not performed as an incident to ordinary
farming operations show that Congress, in excluding agricultural
labor from the operation of the original Social Security Act, was
concerned with problems of tax collection, tax incidence and record
keeping, none of which problems is present in the field of labor
relations. (House Rep't. No. 728, 76th Cong., 1st Sess., p. 53, Sen.
Rept. No. 734, 76th Cong. 1st Sess., pp. 63-64, House Rept. No. 615,
74th Cong., 1st Sess., p. 33, Sen. Rep't. No. 628, 74th Cong., 1st
Sess., p. 45; Latimer v. U. S., supra, at p. 241.13 This is likewise
true of the various State Unemployment statutes.
Under all the circumstances, we find that the respondent's packing-
house workers herein involved are not "agricultural laborers" within
the meaning of Section 2 (3) of the Act.14
10 Matter of Grower-Shipper Vegetable Association of Central California, et at., 15
N. L. R. B. 322, 332 , 333 footnote 7, modified with respect to points not herein material
In 122 F. ( 2d) 368 (C. C. A. 9) ; Matter of American Fruit Growers, Inc., et al., 10
N. L. R. B. 316, 319 -329; Matter of George A. Averill, 13 N. L. R. B. 411, 414, 421,
footnote 7.
n 49 Stat. 625, Ch . 531, Title II, S. 210. Code of Federal Regulations, Title 20,
Section 402 . 6. Chester C. Fosgate Co. it. U. S., 125 F. (2d) 775 (C. C. A. 5) ; Latimer
it. U. S. (S. D. Cal. Cent. Div.) 52 F. Supp. 228; Stuart it. Bieck, 129 F. ( 2d) 400
(C. C. A. 9).
11State v. Christiansen, 137 P. (2d) 512 ; Batt it. Unemployment Compensation
Division, Idaho, 123 P. (2d) 1004; California Employment Commission v. Butte County
Rice Growers Ass'n, 138 P. (2d) 347; Florida Industrial Commission v. Growers Equip-
ment Co., 12 So . ( 2d) 889.
19 Significantly Congress , recognizing the distinction between the Social Security Act
and the National Labor Relations Act, refused to embody in the National Labor Relations
Act the extended definition of "agricultural labor" contained in the amendment to the
Social Security Act. (Intermediate Report of the Special Committee to Investigate the
National Labor Relations Board, House Rep't. 1902, Part I, pp. 83-84, Report on the In-
vestigation of the National Labor Relations Board, House Report No. 1902, supra, Part
II, Minority Views on the Investigation of the National Labor Relations Board (76th
Cong 3rd Sess .) pp 13-15.)
14 See Idaho Potato Growers, Inc, et al., v. N . L. R. B., 144 F. ( 2d) 295 (C. C. A. 9),
cert. den., 323 U . S. 769.
888 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
III. THE ORGANIZATION INVOLVED
United Cannery , Agricultural , Packing and Allied Workers of
America, Local 9, affiliated with the Congress of Industrial Organ-
izations , is a labor organization admitting to membership employees
of the respondent.'
IV. THE UNFAIR LABOR PRACTICES
A. The discharge o f Willa Inlow, Fannie Smith, and Kate Mizell
During the 1944 packing season in Goulds which began about
January 15, Inlow, Smith, and Mizell were employed by the re-
spondent as graders . Prior to the 1944 season both Inlow and Smith,
who were migratory packers, had worked for three seasons as wrappers
at the respondent 's plant in Goulds, among other places, and Inlow
for two seasons as a wrapper at a plant operated by President Camp-
bell, individually, in Okeechobee, Florida. The 1944 season, however,
was Mizell 's first season at either the respondent's plant in Goulds
or his Okeechobee plant.
Mizell was engaged in the first grading operation on the conveyer.
removing "culls" and "pinks" from the tomatoes as they moved upon
the conveyer. Smith and Inlow, on the second operation, separated
the number one tomatoes from the second and third grades and re-
moved the "culls " and "pinks" which the first graders had overlooked.
The tomatoes then passed before the "head graders" who, acting as
a final check, removed all culls , pinks, and seconds and thirds which
the others had failed to remove . The head graders were composed of
the respondent 's most experienced graders, Cora Gorday, Alma Johns,
and Mabel Stevens.
Inlow and Smith joined the Union about March 1, 1943, continuing
as members until the date they and Mizell were discharged, February
15, 1944.16 Until that day, as Campbell admitted, neither Mizell.
Inlow, nor Smith , engaged in any union activities upon the plant
premises of which the respondent had knowledge. On that day, how-
ever, all three engaged in solicitation activities on behalf of the Union
under the following circumstances . During the lunch period at the
plant Smith , Mizell , and Inlow, according to Johns, asked Gorday
and Johns to join the Union, explaining that they were attempting
to get enough membership cards to enable the Union to request an
election. Gorday and Johns refused , declaring that since they were
not migratory workers they would gain no advantages from the
Union . Mizell responded , according to Johns, "Girls, we will give
is Subsequent to the filing of the charge, the Union changed its name, in December 1944,
to Food , Tobacco, Agricultural and Allied Workers Union of America.
10 Since she was unavailable as a witness, there is no evidence in the record as to when
Mizell became a member of the Union She had left Florida prior to the hearing to
engage in packing operations in Texas. It is clear, however, from the facts hereinafter
set forth that Mizell was, at the time of her discharge , one of the most active union
members in the respondent 's employ.
JOHN W. CAMPBELL, INC. 889
you until Saturday [of the current week], we are going to take a
vote. If the house goes union they will want union help and you
will lose your job." Johns testified that she understood this state-
ment to mean "whatever would happen would depend upon that
vote." 17 Smith added that "if [they] didn't join the Union and
hold with them [they] would soon be back down to thirty-five or
forty cents an hour"-the prevailing wage rate, for grades was 85
cents an hour. At the conclusion of the conversation, Inlow said
that "it would be best to join, they wanted everybody they could
get." During the same lunch period Inlow submitted an applica-
tion blank to an employee whom she identified only as Steve, and
Mizell, according to Inlow, also presented an application blank to
an employee who was unknown to Inlow. There is no evidence in
the record that these activities were witnessed by any of the re-
spondent's officers or supervisory employees.1'
That same afternoon, while Inlow and Smith were at work, Shirley
Nicholas, subforeman in charge of grading, complained that they
were not grading properly. Nicholas, a witness for the respondent,
testified that on this one occasion he told Inlow and Smith that they
were "throwing No. 1 tomatoes over to No. 2's," as a result of which
the grade was lowered from 1 to 2 thereby entailing a $2.00 loss to
the respondent, the difference between the number 1 grade which
sold at $6.00 a lug (crate) and the number 2 grade which sold at
$4.00 a lug. Nicholas further testified that Smith and Inlow replied,
"We don't care where we throw it, we don't give a damn about it."
Nicholas added that Smith and Inlow satisfactorily graded the re-
mainder of the afternoon as lie directed. He expressly stated that
his complaint was not directed to Mizell, who was working about 15
feet from Smith and Inlow on another part of the conveyor, and that
Mizell took no part in the discussion which arose out of his complaint.
He further testified that lie made no report of the incident either to
Campbell or to his foreman, Arthur Davis. Johns and Gorday, who
Nicholas testified overheard his conversation with Smith and Inlow,
corroborated his account of the foregoing incident except that Gorday
added that while unable to recall what Mizell said, she too was in-
volved in the discussion.19
17 At a union meeting the preceding night, Mizell had advocated that the Union re-
quest an immediate election among the respondent's employees The union organizer,
Mrs Pat Verble, thereupon gave Mizall union application cards to distribute among the
employees.
Is The respondent does not contend that the employees were not permitted to engage
in union solicitation on the plant premises during their own time. On the contrary, the
respondent freely admits that there was no prohibition of union activity in the plant if
the employees utilized their own time
39 Johns first testified, "Mrs Mizell was further down, I cannot say for sure [whether
she took part in the conversation]. They all got to fussing, and I cannot tell you defi-
nitely what Mrs. Mizell said." Subsequently, however, when asked by the Trial Exam-
iner whether Mizell took part in the above conversation Johns corrected her foregoing
testimony : "I could not say, she was even further from me than Mrs. Inlow." She
expressly testified, "Smith first, and then Mrs . Inlow came into the conversation."
890 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Another and different version of the events at the conveyor belt
was furnished at the supplemental hearing by W. A. Blanchard, who
was erroneously described by the respondent as a Federal employee.
Blanchard, while licensed by the United States Department of Agri-
culture, is paid by the respective State agencies which regulate the
marketing of agricultural products out of funds collected from those
processors who elect to use the inspection service. He testified that
he witnessed and overheard this discussion ; that Smith, Inlow, and
Mizell were involved; and that, while he was unable to recall the
details thereof, he recalled that all three participated and that Smith
said that "she didn't give a damn how they (the tomatoes) were
packed." Blanchard further testified that earlier that morning when
he complained to Smith about her improper grading she also made
the identical remark in question. Like the Trial Examiner , who saw
and heard the witnesses, we discredit Blanchard's testimony because
of its continually shifting and conflicting character with respect to
the grading operation during the period in issue,20 because his testi-
mony concerning Smith's earlier statement is in conflict with Smith's
20 Blanchard testified that the grading was inferior from January 15 to February 15,
and that Smith , Inlow and Mizell were responsible for this. The record does not support
Blanchard 's conclusion . Nicholas , the subtoreman in direct charge of the respondent's
grading operations and whom the Trial Examiner found, and we concur , to be a "direct
and truthful witness," stated that the sole occasion on which he had had any difficulty
with Smith or Inlow was on the date of their discharge . Moreover, although Blanchard
stated that he frequently complained to Davis and Campbell concerning the grading
operations , and that on occasion Davis referred these complaints to Nicholas , Nicholas
testified that neither Davis nor Campbell had ever apprised him of any complaints about
the giading. Nicholas further testified that, "once in a great while ( Blanchard) came
down there and told me to tighten up on ( grading ) a little." Nor had Davis , according
to Smith and Inlow , complained directly to them or, in tact, to any of the other graders.
Davis, Campbell admitted , had never discussed their work with him. In fact, as we
hereinafter find, Davis, who made the discharges pursuant to Campbell 's instructions,
expressly advised Smith , lulow, and Mizell at the time of their discharge that the dis-
charge was motivated by considerations other than the character of their work, and that
no one had made any complaint about the manner in which they performed their work.
The foregoing finding is predicated upon the undisputed and credible testimony of Smith
and Inlow. Further, although Blanchard testified that his primary criticism of the grad-
rug was that there were an inordinate number of culls in the number one grade tomatoes,
he admitted that the separation of culls was primarily the responsibility of the first set
of graders. Smith and inlow were responsible for the second step in the grading opera-
tion, the separation of number one grade tomatoes from the number two grade . Accord-
ingly, Smith and lulow bore no greater responsibility for the inclusion of culls in the
number one grade tomatoes than Gorday and Johns , the head graders who performed the
last step in the grading operation. In addition , Blanchard first testified that he was
apprised of the complaints concerning carload lots about a week before the discharges.
Upon being confronted with Campbell 's testimony of the original hearing to the effect
that he had not received such complaints until after the discharge, Blanchard stated that
he was uncertain as to when the complaints were made. Likewise, Blanchard first testi-
fied that during the week before the discharges he reported to Campbell that Smith and
Inlow were causing the poor grading. Subsequently , however, he testified that the only
time that be made any reference to individual employees in his conversations with Camp-
bell was on February 15, the date of the discharge.
JOHN W. CAMPBELL, INC. 891
credible testimony and stands uncorroborated in the record ;21 and
because his testimony regarding the incident at the conveyor belt is
vague and indefinite and is in conflict with the testimony of Smith.
Inlow, and Nicholas whose accounts are in substantial accord.22
Campbell testified that about the middle of that same afternoon
Blanchard and Jordan, a checker at the Goulds plant, both related
the details of the foregoing incident to him. When Campbell was
asked whether Blanchard specifically mentioned Mizell as being in-
volved in the foregoing incident he testified, "I think he did. I am
sure that he mentioned the three." When the same question was
put to him with respect to his conversation with Jordan, Camp-
bell stated, "I am pretty sure he mentioned all three of them, they
were the ones that were causing the trouble."23
Blanchard testified that he reported to Campbell what he had
observed on the conveyor line, as set forth in his above-mentioned
testimony, and his discussion with Smith that morning, also set
forth above, adding that he also volunteered to Campbell that the
three employees in question be discharged. Like Campbell, he was
indefinite and evasive as to whether he named Mizell in the conversa-
tion in question. Illustrative of this fact is Blanchard's final version
of his conversation with Campbell that day which appears as follows:
Q. What did you tell him?
A. I told him they were fussing amongst themselves up there.
Q. Tell us precisely what you told Mr. Campbell?
A. Told Mr. Campbell * * * do I have to use the word I
used to him? Squabble.
Q. Exactly what you told him?
A. Squabbling up there, that's what I told him.
Q. Is that your entire conversation?
A. That's all I had to say to him. But I expressed my opinion
to him then.
Q. What did Mr. Campbell say?
A. He hadn't made me an answer yet, didn't say it.
Campbell testified that upon learning of the conveyor incident he
m Smith credibly denied that she had ever received complaints concerning her grading
prior to her conversation with Nicholas on the conveyor belt that afternoon. Nor did
Nicholas , who was in direct charge of the grading operations , or either of the head
graders, who Blanchard claimed was present, refer to such a conversation . If a conver-
sation of the character of which Blanchard testified had occurred , it appears extremely
unlikely that Nicholas would have had no knowledge thereof . Finally, Campbell, who
testified at length concerning his conversation with Blanchard , made no reference there-
to. In the light of all these circumstances we, like the Trial Examiner , reject Blanch-
ard's testimony that such an incident occurred or that he informed Campbell that such
an incident occurred
' Inlow's and Smith's testimony differed from Nicholas ' testimony in but one particu-
lar, both declaring that neither of them had said "damn ." Like the Trial Examiner, we
find Nicholas to be a direct and truthful witness and we find that Nicholas ' account of
the incident , the persons involved , and the accompanying conversation was accurate
sa Jordan was not called upon to testify.
892 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
determined to discharge Mizell, Inlow , and Smith but, because of
the manpower shortage, decided to wait until the end of that week.
Campbell, however, admittedly took no action whatsoever at that
time nor did he advise anyone that he contemplated taking any action
with respect to the aforesaid employees. As a matter of fact, at the
close of work that day Mizell, Smith, and Inlow were, along with
the other employees , instructed by Subforeman Nicholas , in accord-
ance with the respondent's normal practice, to report for work the
next day.
After work that evening, however, Gorday and Johns intercepted
Campbell as he was getting into his car to leave the plant and asked
him whether it was necessary to join the Union in order to retain
their jobs. Campbell replied that it made no difference to him so
long as they did their work properly; that they could continue to
work for the respondent whether they belonged to the Union or not.
Gorday and Johns thereupon recounted their lunch period conversa-
tion with Mizell , Smith, and Inlow.
Johns and Gorday also informed Campbell of the incident which
had occurred that afternoon on the conveyor belt. Johns testified
that she "told him about Mrs. Smith and Mrs. Inlow on the belt."
Campbell, in vague and general terms, testified that Johns and Gor-
day informed him that there had been "continuous" argument on the
belt and mentioned that Mizell, Inlow, and Smith had engaged in an
argument on the belt that day of which he already had knowledge.
Gorday did not testify as to what they had specifically told Campbell
concerning the foregoing incident. Since John's testimony as to
her conversation with Campbell concerning this incident and the
persons involved therein is explicit and is in accordance with what
actually occurred on the conveyor that afternoon and since Camp-
bell 's testimony as to what he was told by Johns and Gorday is both
vague and general , we, like the Trial Examiner, reject his testimony
and credit Johns' account of what she told Campbell concerning the
identity of the persons involved in the discussion on the conveyor.
Like the Trial Examiner, we also discredit the testimony of Camp-
bell and Blanchard that Blanchard told Campbell that Mizell was
involved in the belt line incident, because of the vagueness of Camp-
bell's and Blanchard 's testimony, because it is in conflict with the
facts as heretofore found , and because of the unreliability of their
testimony with respect to other matters.
Campbell "immediately " after talking with Gorday and Johns,
admittedly decided to discharge Mizell, Inlow, and Smith at once.
He returned to the plant and instructed Somers, his assistant and
secretary of the respondent , to have Foreman Davis carry out his
decision . Campbell explained that he "made up [his ] mind to dis-
JOHN W . CAMPBELL, INC. 893
charge them * * * that night after Mrs. Johns and Mrs. Gorday
told me that they had been threatened to join the union and given
until Saturday night to join the Union; I just considered that as
intimidation of the help I had, and the only thing I could do was
get rid of them." In pursuance of Campbell's instructions, Foreman
Davis drove that night from Goulds to Homestead, Florida, the
residence of Smith and Inlow, a distance of about 8 or 10 miles, and
informed Smith that she, Inlow, and Mizell were discharged effec-
tive as of that day. In response to Smith's inquiry as to the reason
for their discharge , Davis replied that , "it [was] orders from Mr.
Campbell," and that the discharge had nothing to do with the char-
acter of their work. The next day Smith, Inlow, and Mizell reported
to the plant before work, and Inlow, acting as the spokesman for all
three, inquired of Davis the reason for their discharge. Davis merely
repeated, according to Smith and Inlow, what he had told Smith in
answer to the same inquiry the night before. He stated, according
to Smith and Inlow, that no one had made any complaint about their
work. In conclusion he said that he would probably be discharged
because he also belonged to the Union.
About a week later, the aforesaid three employees, upon discussing
their discharges with Mrs. Pat Verble, the union representative, and
Harry Jones, a Field Examiner attached to the Board's Regional
Office in Atlanta, Georgia, were advised by Jones and Verble to re-
turn to the plant and ask Campbell the reason for their discharge.
They saw Campbell, and Inlow specifically asked him in what respects
their work had been defective. Campbell, replying, "You aren't doing
your work properly," asked whether the respondent owed them any
pay. Inlow repeated her inquiry and Campbell, in turn, reiterated
the foregoing question. He refused to state whether anyone had
made any complaints regarding their work. All three employees
thereupon left the plant.
At the hearing, the respondent's counsel urged that the discharge
of the said three employees was based upon their general inefficiency
as graders, particularly their insolent attitude upon the conveyor belt
that afternoon when reprimanded by Nicholas and their solicita-
tion of Gorday and Johns that same day which, the respondent asserts,
was intimidatory. Upon the facts of this case this contention is
unsupported and affords the respondent no defense to the Board's
complaint.
In the first place, the solicitation activities of Mizell, Smith, and
Inlow were clearly not intimidatory as the respondent asserts, but
legitimate union activity which the Act protects. Mizell, in stating
that those employees who did not join the Union would not be per-
mitted to retain their jobs at the respondent's plant, was merely point-
894 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ing out the results that would inevitably follow if the Union won the
proposed election and the respondent and the Union subsequently
entered into a closed -shop contract .. Union members are "quite free
to explain the legitimate consequences of joining or remaining aloof."
N. L. R. B. v. Dahlstrom Metallic Door Co., 112 F. (2d) 756 (C. C. A.
2). Nor did Gorday or Johns , as their testimony makes plain, con-
sider these statements addressed to them to be other than proper
argument-they were merely concerned as to whether the predicted
consequences would follow in the event the Union won an election.
The respondent 's defense thus discloses that one of the two grounds
upon which it relies as a justification for the discharge of the afore-
said three employees-organizational activity which they were en-
titled to pursue under the Act-was invalid . Since, as the respond-
ent's defense disclosed , it discharged the aforesaid three employees
because they engaged in union activities protected under the Act, it
is beside the point to show that, as the respondent further asserts, an
additional consideration , the conveyor belt incident , also lent weight
to its decision . Kansas City Power di Light Co. v. N. L. R. B., 111 F.
(2d) 340, 348-349 (C. C. A. 8 ) ; Cupples Co. Mfrs. v. N. L. R. B.,
106 F . (2d) 100, 117 (C. C. A. 8) ; cf. N. L. R. B. v. Remington Rand,
Inc., 94 F. (2d) 862, 872 (C. C. A. 2). An examination of this addi-
tional ground, however , demonstrates that it was a mere subterfuge
and afterthought , advanced for the first time at the, hearing, the
respondent thereby supplying further evidence that the legitimate
union activity of the employees in question was the sole basis for
their discharge. That the respondent did not decide to discharge the
foregoing employees because of the incident which had occurred that
day on the conveyor belt is demonstrated by the following facts.
Campbell admittedly took no action upon learning of the incident,
nor did he advise anyone that lie intended to take such action. More-
over , Campbell could not, as he asserts , have determined to discharge
all three of the aforesaid employees upon learning of this incident,
since, as found above, Mizell was not even involved therein, nor was
Campbell informed otherwise . Finally, the evidence is indisputed
that Foreman Davis advised the employees that their discharge was
wholly unrelated to the character of their work, and, Campbell, when
asked for an explanation of the discharge , refused to state any definite
reason, let alone the reason which the respondent urged at the hearing
as one of the bases for the discharge.
Nor, in the light of the foregoing facts , is a finding of discrimina-
tion precluded , as the respondent argued at the hearing , because other
union members , although known to be such, continued to work for
the respondent. These three employees , as distinguished from the
other union members , were the only ones who engaged in union ac-
tivities upon the respondent 's premises and whose activities were
.JOHN W CAMPBELL, INC 895
brought to the respondent's attention. In any event, it is unnecessary
to discharge every union member in order to discourage union ac-
tivities; it suffices to make an example of a few well chosen union
proponents.
Upon all the foregoing facts, with particular emphasis upon the
respondent's admissions as to the reasons for its discharge of Inlow,
Smith, and Mizell, we find, as did the Trial Examiner, that the said
three employees were discharged because of their activities in behalf
of the Union, and that by such conduct the respondent discouraged
membership in the Union in violation of Section 8 (3) and (1) of
the Act.
V. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
It is found that the activities of the respondent set forth in Section
IV, above, occurring in connection with the operations described in
Section I, above, have a close, intimate, and substantial relation to
trade, traffic, and commerce among the several States, and tend to
lead to labor disputes burdening and obstructing commerce and the
free flow of commerce.
VI. THE REMEDY
Since we have found that the respondent has engaged in unfair
labor practices , we shall order that it cease and desist therefrom and
take certain affirmative action designed to effectuate the policies of
the Act.
Having found that the respondent discriminated in regard to the
hire and tenure of employment of Willa Inlow, Fannie Smith. and
Kate Mizell , we shall order that the respondent offer them immediate
and full reinstatement to their former or substantially equivalent
positions , without prejudice to their seniority or other rights and
privileges, and make them whole for any loss of pay they may have
suffered by reason of such discriminations, by payment to each of
them of a sum of money equal to the amount she normally would
have earned as wages during the period from the date of the dis-
crimination against her to the date of the respondent's offer of rein-
statement to her, less her net earnings 24 during such period. How-
26 By "net earnings" is meant earnings less expenses , such as for transportation, room,
and board, incurred by an employee in connection with obtaining work and working else-
where than for the respondent , which would not have been incurred but for his unlawful
discharge and the consequent necessity of his seeking employment elsewhere See Matter
of Crossett Lumber Company and United Brotherhood of Carpenters and Joiners of
America, Lumber and Sawmill Workers Union. Local f590, 8 N. L. It. 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.
896 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ever, since the respondent's business is seasonal, it is possible that its
plant may not be in operation at the time said offer of reinstatement
is made; in that event the offer of reinstatement of these employees
shall become effective at such time as the respondent's seasonal busi-
ness next begins. Moreover, in making the employees whole, we shall
not award back pay for the periods in which they normally would
not have worked in the respondent's plant; nor shall we deduct as
earnings any monies earned elsewhere by them during such periods.
Upon the foregoing findings of fact and upon the entire record in
the case, the Board makes the following :
CONCLUSIONS OF LAW
1. Local 9, United Cannery, Agricultural, Packing and Allied
Workers of America, C. I. 0., now known as Local 9, Food, Tobacco,
Agricultural and Allied Workers of America, is a labor organization
within the meaning of Section 2 (5) of the Act.
2. By discriminating in regard to the hire and tenure of employ-
ment of Willa Inlow, Fannie Smith, and Kate Mizell, and thereby
discouraging membership in United Cannery, Agricultural, Packing
and Allied Workers of America, C. I. 0., now known as Food, To-
bacco, Agricultural and Allied Workers of America, the respondent
has engaged in and is engaging in unfair labor practices within the
meaning of Sections 8 (3) of the Act.
3. By said act of discrimination the respondent has interfered
with, restrained, and coerced its employees in the exercise of the
rights guaranteed in Section 7 of the Act, and has thereby engaged
in and is 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 respondent has not engaged in unfair labor practices within
the meaning of Section 8 (1) by urging, persuading, threatening,
and warning its employees not to become union members or to assist
the Union, and vilifying, disparaging, and expressing disapproval
of the Union.
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 respondent, John W. Campbell, Inc,,
and its officers, agents, successors, and assigns, shall:
1. Cease and desist from :
(a) Discouraging membership in Local 9, United Cannery, Agri-
V
JOHN W. CAMPBELL, INC. 897
cultural, Packing and Allied Workers of America, C. I. 0., now
known as Local 9, Food, Tobacco, Agricultural and Allied Workers
of America, or any other labor organization of its employees, by
discharging or refusing to reinstate any of its employees, or by
discriminating in any other manner in regard to their hire or tenure
of employment or any term or condition of their employment;
(b) In any manner interfering with, restraining, or coercing its
employees in the exercise of the right to self-organization, to form
labor organizations, to join or assist Local 9, United Cannery, Agri-
cultural, Packing and Allied Workers of America, C. I. 0., now
known as Local 9, Food, Tobacco, Agricultural and Allied Workers
of America, 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 bargaining 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 Willa Inlow, Fannie Smith, and Kate Mizell, im-
mediate and full reinstatement to their former or substantially
equivalent positions, without prejudice to their seniority or other
rights and privileges, in the manner set forth in our Decision;
(b) Make whole Willa Inlow, Fannie Smith, and Kate Mizell
for any loss of pay they have suffered by reason of the respondent's
discrimination against them, by payment to each of them of a sum
of money equal to the amount which she normally would have
earned as wages from the date of the discrimination against her to
the date of the respondent's offer of reinstatement, less her net
earnings during such period in the manner set forth in our Decision;
(c) Post in its plant at Goulds, Florida, copies of the notice at-
tached hereto, marked "Appendix A." Copies of said notice, to be
furnished by the Regional Director for the Tenth Region, shall,
after being duly signed by the respondent's representative, be posted
by the respondent immediately upon receipt thereof, but if the plant
is not in operation, as soon thereafter as the respondent's seasonal
business next begins, and maintained by it 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 respondent to insure that said notices are not altered,
defaced, or covered by any other material;
(d) Notify the Regional Director for the Tenth Region in
writing, within ten (10) days from the date of this Order, what
steps the respondent has taken to comply herewith.
MR. GERARD D. REILLY took no part in the consideration of the
above Second Decision and Order,
686572-46-58
898 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX "A"
NOTICE TO ALL EMPLOYEES PURSUANT TO A DECISION AND ORDER
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 Local 9, United
Cannery, Agricultural, Packing and Allied Workers of America,
C. I. 0., now known as Local 9, Food, Tobacco, Agricultural
and Allied Workers of America, 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 bargaining or other mutual aid or protection.
We will offer to the employees named below immediate and
full reinstatement to their former or substantially equivalent posi-
tions 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.
Willa Inlow
Fannie Smith
Kate Mizell
All our employees are free to become or 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 member-
ship in or activity on behalf of any such labor organization.
JOHN W. CAMPBELL, INC.,
Employer.
Dated ................ By....................................
(Representative ) ( Title)
NOTE : Any of the above-named employees presently serving in
the armed forces of the United States will be offered full reinstate-
ment upon application in accordance 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.