North Whittier Heights Citrus Association

National Labor Relations Board - Board Decisions

Jan 19, 1939

10 N.L.R.B. 1269 (N.L.R.B. 1939)

In the Matter of NORTH WHITTIER HEIGHTS CITRUS ASSOCIATION and
CITRUS PACKING HOUSE WORKERS UNION, LOCAL No. 21091
Case No. C-,310.-Decided January 19, 1939
Citrus Fruit Packing In(lit stty--Dtnployee: agricultural laborer; individuals
employed by cooperative packing house or plant in packing of citrus fruits not
employed as agricultural laborers-Interference, Restraint, and Coercion: ex-
pressed opposition to labor oiganization; threats of retaliatory action ; surveil-
lance of union meetings ; misrepresenting jurisdiction of the Board and purposes
of the Act to employees-Discrimination: lay-off: charges of, dismissed ; re-
fusals to reinstate and discharges : charges of, dismissed as to one employee,
sustained as to other employees-Reinstatement Ordered-Back Pay: awarded;
monies received by employees for work performed upon Federal, State, county,
municipal, or other work-relief projects to be deducted and paid over to agency
which supplied funds for said projects.
Mr. David Persinger, for the Board.
Mr. Ivan G. McDaniel, of Los Angeles, Calif., for the respondent
Mr. Barney L. Culpepper, of Los Angeles, Calif., for the Union.
Mr. Lester Asher, of counsel to the Board.
DECISION
AND
ORDER
STATEMENT OF THE CASE
Upon charges and amended charges duly filed by Citrus Packing
House Workers Union , Local No. 21091 , herein called the Union, the
National Labor Relations Board, herein called the Board, by Towne
Nylander, Regional Director for the Twenty-first Region (Los An-
geles, California ), issued its complaint dated September 9, 1937,
against North Whittier Heights Citrus Association , Puente, Cali-
fornia, herein called the respondent , alleging that the respondent had
engaged in and was engaging in unfair labor practices affecting
commerce, within the meaning of Section 8 (1) and ( 3) and Section
2 (6) and ( 7) of the National Labor Relations Act, 49 Stat. 449, herein
called the Act. Copies of the complaint and accompanying notice
of hearing were duly served upon the respondent and the Union.
The complaint alleged in substance : ( 1) That the respondent on
July 31 , 1937 , discharged O. W. Rudick 1 for joining and assisting
1 Erroneously referred to in the complaint as W. 0 Rudick
10 N. L. R. B., No. 113.
1269
147841-39-vol 10-81
1270 NATIONAL LABOR RELATIONS BOARD
the Union; (2) that the respondent ceased operations at its packing
house and laid off its employees on August 13, 1937; (3) that upon
resuming operations on August 23 and 24, 1937, the respondent refused
to reinstate 27 of its employees because they joined and assisted the
Union; and (4) that the foregoing activities of the respondent con-
stituted unfair labor practices within the meaning of Section 8 (1)
and (3) of the Act.
The respondent in its verified answer dated September 17, 1937,
denied that it had engaged in unfair labor practices and averred that
the discharge of O. W. Rudick was because of his incompetency and
that the cessation of operations was due to seasonal fluctuation in
the volume of fruit available for packing. In addition, the respond-
ent's answer set forth as separate and special defenses : (1) that its
employees are all "agricultural laborers" -within the meaning of Sec-
tion 2 (3) of the Act and are therefore exempt from the jurisdiction
of the Board; (2) that neither is it engaged in nor do its operations
affect interstate commerce; and (3) that for the foregoing reasons the
Board is without jurisdiction and is by its proceedings unlawfully in-
terfering with the respondent's business.
Pursuant to the notice, a hearing was held in* Los Angeles, Cali-
fornia, on September 24, 29, 30, October 1, 29, November 15, and 26,
1937, before Charles Lowy, the Trial Examiner duly designated by
the Board. The Board and the respondent were represented by coun-
sel, and the Union was represented by a member of the Citrus Indus-
tries Council of Los Angeles. Full opportunity to be heard, to
examine and cross-examine witnesses, and to produce evidence bearing
upon the issues was afforded to all parties.
At the commencement of the hearing counsel for the respondent
filed a motion to dismiss the proceedings for the same reasons given
as special defenses in the answer. Ruling on this motion was reserved
by the Trial Examiner. We have considered the respondent's motion
to dismiss and the grounds stated therein, and, for the reasons set
forth below, hereby deny the motion.
The Trial Examiner also reserved ruling upon the respondent's
objections to the admission in evidence on behalf of the Board of
Board Exhibit Nos. 8 to 25, inclusive, 27 and 28. Board Exhibit
Nos. 12 to 16, both inclusive, 23, 24, 25, 27, and 28 will be admitted.
Board Exhibit Nos. 8 to 11, both inclusive, and 17 to 22, both inclusive,
will not be admitted. During the hearing it was stipulated by all the
parties that the testimony of certain witnesses offered in Matter of
Sierra Madre-Lamanda Citrus Association and Citrus Packing House
Workers Union Local X0766,2 covering the issues presented by the
respondent's motion to dismiss together with all objections thereto,
2 Case No. R-309.
DECISIONS AND ORDERS 1271
be considered a part of the record in the present case. During the
course of both hearings, the Trial Examiner made numerous rulings
on objections to the admission of evidence. The Board has reviewed
the rulings of the Trial Examiner and finds that no prejudicial errors
were committed. The rulings are hereby affirmed.
On December 7, 1937, the Board, acting pursuant to Article II,
Section 37, of National Labor Relations Board Rules and Regula-
tions-Series 1, as amended, ordered this proceeding to be transferred
to and continued before it.
By stipulation of the parties, dated December 15, 1937, an economic
brief prepared by the respondent and containing arguments and
exhibits relating to the jurisdiction of the Board was made a part of
the record. On January 10, 1938, the respondent filed a brief, relat-
ing to the evidence and the problems of jurisdiction, to which we
have given due consideration.
On March 21, 1938, the Board made and issued findings of fact
and an order in the case. On April 14, 1938, the respondent filed
in the United States Circuit Court of Appeals for the Ninth Circuit
its petition to review and set aside the order of the Board. On May
29, 1938, the Circuit Court granted leave to the respondent to file a
proposed amended petition to review and set aside the Board's order,
and to file proposed interrogatories in connection therewith. On
June 13, 1938, the Circuit Court, upon motion of the Board, re-
manded the cause to the Board for further proceedings. On June 30,
1938, the Board, having duly notified all the parties and having con-
sidered the special appearance filed by the respondent on June 27,
1938, for the purpose of objecting to the jurisdiction of the Board
to set aside its findings or order, entered its order setting aside its
findings and order of March 21, 1938, and directing that such further
proceedings be taken in the case as the Board might consider neces-
sary or desirable. On July 12, 1938, pursuant to an order duly made,
the Board issued Proposed Findings of Fact, Proposed Conclusions
of Law, and Proposed Order herein, and granted the parties the
right to file exceptions, to request oral argument before the Board,
and to request permission to file briefs with the Board. On August
3, 1938, the respondent filed with the Board objections and exceptions
to the Board's Proposed Findings of Fact, Proposed Conclusions of
Law, and Proposed Order, and on August 23, 1938, a brief in support
of its objections and exceptions. The parties made no request for
oral argument before the Board. On September 12, 1938, the re-
spondent presented to the Supreme Court of the United States its
petition for a writ of certiorari to the Circuit Court to review the
order remanding the cause to the Board for further proceedings. On
January 9, 1939, the Supreme Court denied the petition for a writ
of certiorari.
1272 NATIONAL LABOR RELATIONS BOARD
We have considered the objections and exceptions of the respondent
and, except as followed herein, find them to be without merit.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
North Whittier Heights Citrus Association is a corporation organ-
ized under the Cooperative Marketing Association Laws of Califor-
nia, and has its principal office and place of business in Puente,
California. Two hundred citrus fruit growers comprise the mem-
bership of the respondent. They own, between them, a total of 1,635
acres of orchard land, made up of about 20 acres of grapefruit, 582
acres of lemons, and 1,033 acres of oranges. The respondent is en-
gaged in the business of fumigating, spraying, and dusting the citrus-
fruit groves of its members, in picking the fruit, and in washing,
grading, and packing the fruit for shipment and market. Upon
applying for membership in the respondent, each grower becomes
bound by its bylaws, rules, and regulations.
The activities of the respondent involve two departments, the
orange department and the lemon department, the latter handling
both lemons and grapefruit. The packing of oranges is carried on
at about the same time as the picking. This department works on
navel oranges from early January to sometime in April, and on
Valencia oranges from the middle of May to about October. It is
practically shut down from October until about January. Lemons
are picked and packed to some extent during the entire year, but the
period from June to December shows the least activity. Since the
season for grapefruit corresponds roughly with that of Valencia
oranges, the production in both the lemon and the orange departments
is marked by the same slack period, generally from about October
to January.
The respondent, together with other and similar local associations,
is affiliated with a district exchange, the Semi-Tropic Fruit Exchange.
There are 25 similar district exchanges throughout California, each
being a corporation with its board of directors made up of one rep
resentative from every affiliated association. The respondent has a
written agreement with its district exchange providing that all the
fruit controlled by the respondent is to be marketed through the
district exchange. This contract with the district exchange specifi-
cally refers to and embodies the agreement which is in turn entered
into by the district exchange and the California Fruit Growers
Exchange.
The California Fruit Growers Exchange is also a corporation organ-
ized under the laws of California, its membership and board of direc-
DECISIONS AND ORDERS 1273
tors being composed of one representative from each of the district
exchanges. The agreement between the California Fruit Growers
Exchange and its district,exchanges establishes the former, as the gen-
eral agent of each district exchange in all matters concerning the
marketing of citrus fruits.
In accordance with these- agreements all the fruit controlled by the
respondent is marketed through its district exchange and the Cali-
fornia Fruit Growers Exchange. When loaded into railroad cars at
the siding of the respondent, each shipment of fruit is made in the
name of the California Fruit Growers Exchange as both the consignor
and consignee, and the bill of lading is delivered to the California
Exchange.
During the 12-month period ending October 31, 1936, the California
Fruit Growers Exchange and its affiliated associations produced nearly
31 million boxes of citrus fruits, representing 71 per cent of the oranges,
88 per cent of the lemons,,and 63 percent of the grapefruit grown in
the entire State of California. For the year ending October 31, 1937,
it is estimated that members of local associations affiliated with the
California Fruit Growers Exchange will produce 75 per cent of the
oranges, 92 per cent of the lemons, and 74 per cent of the grapefruit
produced in California.3
It is estimated that during the two citrus seasons preceding the hear-
ing held in this case, the destination of all the fruit produced in Cali-
fornia was as follows :
ORANGES
Percent
Shipped in interstate commerce______________________________ 73
Shipped in intrastate commerce______________________________ 12
Otherwise disposed of_______________________________________ 15
LEMONS
Shipped in interstate commerce______________________________ 74
Shipped in intrastate commerce----------------------------- 11
Otherwise disposed of_______________________________________ 15
GRAPEFRUIT
Shipped in interstate commerce------------------------------ 54
Shipped in intrastate commerce______________________________ 26
Otherwise disposed of_______________________________________ 20
The fruit listed as being "otherwise disposed of" is converted into vari-
ous manufactured products ,4 donated to charity, or otherwise elimi-
nated from the market.
8 About 75 per cent of Arizona citrus acreage is also affiliated with the California
Fruit Growers Exchange in the marketing of its fruit.
4 Exchange Orange Products Company, a totally owned subsidiary of the California
Fruit Growers Exchange, and Exchange Lemon Products Company, which is owned by
practically all of the lemon shippers who are affiliated with the California Fruit Growers
Exchange, manufacture byproducts such as juices, oils, and peel products. The annual
sales of each Products Company have been well over one million dollars, and 90 per cent
of the products are shipped outside the State of California.
1274 NATIONAL LABOR RELATIONS BOARD
Fruit Growers Supply Company, a subsidiary supply department
of the California Fruit Growers Exchange, furnishes orchard and
packing materials to affiliated grower members and controls timber
holdings, lumber mills, and box-manufacturing plants. Approxi-,
mately 15 per cent of the lumber used comes from outside California.
The California Fruit Growers Exchange has built up a sales organi-
zation that, under direction from its headquarters in Los Angeles,
covers the United States, Canada, and a number of foreign markets.
District sales offices are maintained in 57 of the larger cities of North
America, and there are 32 additional suboffices in smaller centers.
Advertising campaigns featuring the trade-mark, "Sunkist," are con-
ducted throughout the United States, and in Canada and Great Britain,
and advertisements in periodicals, recipe books, consumer educational
material, and dealer displays are circulated all over the world.5 The
agreement between the California Exchange and the district exchanges
lists as one of its principal purposes and objects, "That the business
engaged in, being interstate in character, to secure at all times full
compliance with the laws of the United States concerning Interstate
Commerce ..."
Figures as to the respondent's own pack covering the past few sea-
sons are as follows :
1935-36 season (actual
figures)
Total pro- Shipped in
duction in interstate
boxes commerce
Percent
Oranges--------------------------------------------------------------------- 219,542 81
Lemons-------------------------------------------------------------------- 131,892 85
Grapefruit------------------------------------------------------------------ 7,715 89
Past two
1936-37 season (estimated seasons (esti-
figures) mated
figures)
Total pro- Shipped in Shipped in
duction in interstate interstate
boxes commerce commerce
Percent Percent
Oranges------------------------------------------------------- 234,234 72 76
Lemons------------------------------------------------------ 115,304 68 77
Grapefruit---------------------------------------------------- 7,068 69 79
II. THE EMPLOYEES OF THE RESPONDENT
An orchard owner affiliated with the respondent employs his own
help to do his nursery and culture work and to cultivate, irrigate, fer-
6 During the season of 1907-08, the advertising expenditure of the California Fruit
Growers Exchange was $6,912, but by 1936-37 the expenditure had grown to $1,311,819.
DECISIONS AND ORDERS 1275
tilize, and prune throughout his groves. For the balance of the opera-
tions required in the production and marketing of citrus fruits, he
looks to the respondent. -
The general categories of workers employed by the respondent con-
sist of pickers, fumigators, sprayers, dusters, floor-laborers; graders,
and packers. -'- _
. - w
The pickers pick the fruit from the trees in the orchards of the
respondent's members and place it in field boxes. On an average pay
roll, when both oranges and lemons are being picked in normal fashion,
the respondent employs about 110 pickers. The respondent also em-
ploys from 6 to 12 fumigators who perform the work of covering the
trees with canvas tents and running a gas vapor under the tent; about
four sprayers who spray the trees with various insecticides; and several
dusters who dust the trees with prepared chemical materials. All of
these duties are performed by men, the numbers that are required
varying with the season.
After the fruit is picked and put into field boxes, the grower himself
gendi ally hauls the fruit to the respondent's packing house or plant,
but in some cases the respondent may supply the trucking facilities and
charge its member an additional amount.
When the fruit arrives at the packing house it is handled by the
floor laborers. They unload the field boxes front the trucks, move
the fruit about through the various rooms of the packing house, and
dump it into the washing tanks and onto the proper conveyor belts or
hoppers. The floor laborers do all the unloading, trucking, and han-
dling of the fruit in the packing house, the stacking and loading of
the boxes of fruit which have been packed, and also unload and
handle the shooks (the component parts of the boxes) and make up
and repair the packing boxes and picking ladders. An average pay
roll of the respondent lists about 30 men employed in this capacity.
The oranges unloaded on the receiving platform at the packing plant
are moved into a basement storage' room and permitted to stand for
about 2 days, to allow some of the moisture in the rind to evaporate.
While in this room, the fruit is sometimes gassed in order to bring out
a better color. After these 2 days of storage, the fruit is dumped upon
a conveyor belt. The first step is up from the basement on an auto-
matic dump into a presorter where all the leaves, trash, and damaged
oranges are removed. From here the fruit travels into a soaking tank,
passing between brushes which scrub each orange with soapy water.
Next the fruit goes- into tanks containing a solution of borax; then
past whirling brass rollers and driers; then into the waxer where clear
wax is applied; and then onto the grading table for grading.
The graders' are generally women, the average pay roll showing
about 29 employees in this classification. As the fruit passes along the
1276 NATIONAL LABOR RELATIONS BOARD
moving belt, one group of graders removes the inferior oranges (culls),
another the standard grade, and another the second grade. After
being graded, the fruit goes through a stamping machine suitable for
that grade; then through electric recording machines which count every
orange in each size and grade; and then to the bins where it is packed.
Packers stand alongside the bins, and these employees, also women,
wrap each orange and place it in a box according to a set pattern of
packing. About 47 packers are listed on the respondent's average pay
roll, their rate of pay being determined by the number of boxes packed.
This is the only piece work done in the packing house, both the floor
laborers and the graders being paid on an hourly basis.
As the packer finishes with a box, it is placed upon another moving
belt which leads into the lidding machine. Here a press nails the lid
onto the box of packed fruit, and an automatic tally is recorded of the
number of boxes completed. The covered box of fruit then continues
its journey on the conveyor belts, being carried into the precooler room.
The oranges are stored in this room for about 10 days and after that
time are trucked out to the loading platforms and placed in the railroad
cars, ready for market.
Lemons and grapefruit are handled by the lemon-packing depart-
ment in approximately the same way as oranges by the orange de-
partment. A few of the lemon-packing operations are not so mecha-
nized as the corresponding operations of the orange department, the
lemons and grapfruit being dumped into the soaking tank by hand.
During the subsequent steps in the process through the lemon-pack-
ing department, the fruit moves along belts from the soaking tank to
the brushes; then to the disinfectant tank; then to the waxer; and is
carried out upon the sorting table. Lemons and grapefruit are graded
according to color, and each box is packed with fruit of the same
color. The boxes filled with lemons or grapefruit move along the con-
veyor belts and are at this time carried into an air-conditioned stor-
age room, before the boxes are lidded or fastened. As the fruit
reaches the proper color, the boxes are removed from the storage room
and the fruit is again placed on a grading belt. From this point on
the general process is similar to that followed in the orange depart-
ment, the journey over the various conveyor belts being concluded
when the closed box of lemons or grapefruit is stacked on the floor
of the precooler for the final storage period which precedes the ship-
ment in railroad cars.
Citrus Packing House Workers Union, Local No. 21091, affiliated
with the American Federation of Labor, is a labor organization which
admits to its membership packing-house employees of the respond-
ent. All of the individuals named in the complaint were employed
by the respondent as packers, graders, or general packing-house
DECISIONS AND ORDERS 1277
laborers, and their duties were performed inside the packing plant or
the loading platforms
The respondent contends that all of its employees are "agricultural
laborers," the packing-house workers as well as the pickers, fumiga-
tors, sprayers, and dusters. Section 2 (3) of the Act excludes "agri-
cultural laborer" from the definition of the term, "employee," and
consequently from the jurisdiction granted to the Board.
The testimony and' briefs offered by the respondent disclose that
among the chief grounds alleged for its contention are : (1) that the
customary and accepted meaning of the term "agricultural laborer"
in the California citrus business includes the worker in the orchard
together with the grader, packer, and floor laborer in the packing
house; (2) that it is quite general in the industry to interchange labor
between the packing house and activities in the fields which are
generally considered to be agricultural; (3) that all the services per-
formed in the packing house were at one time in the history of the
industry performed on the farm by the farmer himself; and (4) that
since the respondent acts merely as the agent of its affiliated growers,
the labor which it employs must be considered agricultural the same
as if employed by the orchard owner.
Managers of other citrus-fruit associations, employees of the State
of California, and other witnesses possessing records of experience
in the citrus industry were called by the respondent and testified that
every worker who participates in the many processes of the packing
house, through the point where the boxes of packed fruit are put
aboard the railroad cars, is, according to common usage, considered
an "agricultural laborer." The testimony, however, was purely gen-
eral. There was no showing made of any specific instance in which
this definition was ever used or was ever applied to a set of facts or
to any course of doing business. Indeed, as is noted below, the rulings
of the Unemployment Reserves Commission of the respondent's own
State offer a clear refutation of the definition submitted by the re-
spondent.
The witnesses for the respondent also concluded that it is a general
practice to interchange workers between the packing house and the
field. The record clearly establishes, however, that the pickers are
only rarely given work in the packing house, since the two different
lines of activity are carried on at the same time.
As for the fumigators, sprayers, and dusters, their work is done
in the orchards. It is only during the dull seasons, when the houses
are preparing to close down and are working a few days each week,
Only one of the complaining witnesses , Joseph Matlock , was shown to have done any
outside work . He testified that in the spring months, before full operations began in the
packing house, he spent about one-fourth of his time spreading fertilizer , but with the
start of regular packing operations he assumed his duties as a floor laborer in the plant.
1278 NATIONAL LABOR RELATIONS BOARD
that one or two of the floor laborers may be kept on the pay roll by
being sent into the orchards to do substitute work as fumigators,
sprayers, or dusters. It is clear from the record- that the women em-
ployed as graders and packers, who constitute nearly one-half of the
packing-house force, are never sent into the orchards.' A great deal
of this testimony concerning an interchange of-the same workers be-
tween the field and the house was offered by representatives of large
orchards and ranches which do their own packing. The situation
present on large ranches possessing their own packing facilities and
employing the same help for the cultivating, the harvesting, and the
packing is not analogous to the business of the respondent.
The respondent also adduced proof that during the slack season
when the packing houses are entirely shut down, its employees accept
work in the walnut industry, on truck farms, or in many other occu-
pations. The great variety of jobs which the employees of the re-
spondent obtain during the short periods that the houses are not
operating, of itself defeats the attempt to demonstrate that the
workers regularly move with the seasons from one farm occupa-
tion to another. The witnesses produced by the respondent admitted
that the, majority of the citrus-house workers did not move into any
other industries during the slack seasons. The record clearly shows
that the packing-house employees obtain about 8 months of regular
employment during the year and only accept temporary or odd jobs
in the shut-down periods. The record further establishes that the
majority of the employees return season after season, the packing
associations tending to discourage the employment of migratory labor.
The third ground offered by the respondent for its interpretation
of the term "agricultural laborer" points to the origin of the citrus
-industry when the same persons who cultivated and pruned the trees
picked the fruit and then packed it themselves in the grove under the
trees. The respondent argues that since no one would then have
questioned the agricultural status of such an occupation, the agricul-
tural nature of the packing work cannot change today. This refer-
ence by the respondent to the origins of the citrus industry serves to
emphasize the great changes which have occurred in citrus-packing
methods. By forming cooperative associations the growers have,
through standardization of their products, advertising, and better
distribution, brought about a tremendous increase in consumption
and a constantly expanding market. The organization of individual
orchard owners into cooperative marketing associations has led to
7 The respondent stresses the fact that In times of severe frost all the men of the
packing house are sent into the orchards for work on heating and smudging, and that
at such times the women often bring hot coffee and sandwiches into the groves. Such
activities In connection with emergencies and times of great peril cannot serve to bring
the employees under a classification corresponding to such emergency work
DECISIONS AND ORDERS 1279
highly efficient and mechanical methods in packaging the crop. ' In
the light of such changes in packing methods it is idle to argue that
no change in the character of the labor of packing workers can have
taken place.
In support of the fourth ground alleged for the contention that
its employees are "agricultural laborers," the respondent adduced
proof that the identity of the fruit belonging to the individual grower
is not lost throughout the packing-house operations. The respondent
argued that on the basis of this fact it must be considered the agent
of the orchard owner, and the workers which it employs must be
considered agricultural laborers because they are in effect in the same
position as packing workers employed directly by the orchard owner.
The facts of this case do not require that we concede that packing
workers employed directly by the orchard owner are agricultural
laborers. Since the reasoning of the respondent presupposes that em-
ployees of an agent must be considered employees of the principal,
the argument is without merit. Furthermore, it is doubtful whether
the affiliated orchard owner has been content merely to name the
local association as his agent. The record discloses that far greater
powers have been conferred upon the cooperative marketing associa-
tion, despite the terminology of agency which is used in the corporate
documents."
As to all of the reasons suggested by the respondent in support
of the contention that its packing-house workers are "agricultural
laborers," we can see no compelling force in them.
The term "agricultural laborer" has been defined by other Federal
agencies. The Social Security Act, 49 Stat. 620, provides :
The term "employment" means any service * * * except-
(1) agricultural labor; * * *.s
The United States Treasury Department, Bureau of Internal Reve-
nue, and the Social Security Board have promulgated regulations
s Section 1 of the By-Laws of North Whittier Heights Citrus Association as set forth
in Exhibit 2 attached to Respondent 's Economic Affidavit of J. Eliot Colt , is as follows :
Each member appoints and constitutes the Association the general agent of such
member for the purpose of marketing the fruit that such member is obligated to
deliver hereunder , and for such purpose authorizes , empowers, instructs and
directs the Association to pick, transport , receive, process , handle, pack , ship, sell
and transfer title to said fruit at such time, or times , and in such markets and
for such amounts as the Association shall deem best, and by and through such
agent or agencies as the Association may select or provide The time or times
when fruit shall be picked for marketing shall be determined in accordance with
general rules to be established by the Board of Directors, which may be changed
from time to time. The Association may enter upon the lands where any fruit is
grown without previous demand or notice to the member , and pick the same at
the time or times when the same should be picked , and transport the same to the
packing house of the Association , and process , pack , ship and sell the same, and
do each and every act and thing by the Association deemed necessary or desirable
in connection with the preparation for market and disposition of said fruit.
Sections 210 (b ), 811 (b ), and 907 ( c) of the Social Security Act.
1280 NATIONAL LABOR RELATIONS BOARD
defining the term "agricultural labor ," as used in the Social Security
Act, as follows :
... The term "agricultural labor" includes all services per-
formed-
(a) By an employee, on a farm, in connection with the culti-
vation of the soil, the harvesting of crops, or the raising, feeding,
or management of livestock, bees, and poultry; or
(b) By an employee in connection with the processing of
articles from materials which were produced on a farm; also the
packing, packaging, transportation, or marketing of those mate-
rails or articles. Such services do not constitute "agricultural
labor," however, unless they are performed by an employee of the
owner or tenant of the farm on which the materials in their raw
or natural state were produced, and unless such processing, pack-
ing, packaging, transportation, or marketing is carried on as an
incident to ordinary farming operations as distinguished from
manufacturing or commercial operations.
As used herein the term "farm" embraces the farm in the ordi-
narily accepted sense, and includes stock, dairy, poultry, fruit,
and truck farms, plantations , ranches, ranges, and orchards.
Forestry and lumbering are not included within the exception.'°
The Bureau of Internal Revenue has issued the following opinion
relating to the definition of "agricultural labor" :
A ruling is requested whether services performed by individuals
engaged as employees in packing fruit constitute "agricultural
labor" within the meaning of section 907 (c), Title IX, of the
Social Security Act, which defines the term "employment" and
excludes "agricultural labor" therefrom.
* *
Wide variations in the method of preparing farm products for
market and in the methods of marketing are followed throughout
the various States, and wide variations exist in the methods of
operation as between the producers of farm products and cooper-
ative organizations of farmers in some instances and between indi-
vidual farmers and commercial packers and processors in other
instances. Agricultural products are often delivered by the actual
producer directly to a commercial enterprise in which the pro-
ducer has no interest other than the fact that the enterprise is a
purchaser of his products. In other instances the products of
the farm are delivered by the producer to a cooperative organiza-
tion of farmers, of which such producer is a member, and the
10 Art. 6, Social Security Board Regulations No. 2, relating to Federal Old-Age Benefits
under Title II of the Social Security Act ;
Art. 6, U. S. Treasury Department , Bureau of Internal Revenue Regulations 91, relating
to the Employees' Tax and the Employers ' Tax under Title VIII ;
Art. 206 ( 1) U. S. Treasury Department, Bureau of Internal Revenue Regulations 90,
relating to the Excise Tax on Employers under Title IX.
DECISIONS AND ORDERS 1281
products are prepared and/or processed in widely varying degrees
and marketed on a commercial basis by the cooperative organiza-
tion, or returned to the producer to be marketed by him in his
own way.
The fact that an individual is engaged in handling' farm prod-
ucts does not of itself make the services performed by him "agri-
cultural." Services are often performed by employees in con-
nection with the packing, processing, and other preparation of
farm products for sale to consumers which are not a part of
ordinary farming operations but a part of commercial or manu-
facturing operations.
It is the opinion of the Bureau that services performed by an
employee in connection with the processing, packing, packaging,
transportation, or marketing of farm products constitute "agri-
cultural labor" within the meaning of section 907 (c) of the Social
Security Act only when those services are performed by an em-
ployee of the owner or tenant of the particular farm on which
the product in its raw or natural state was produced. Where such
services are performed by individuals who are employed by an
association of producers, even though the products in connection
with which the services are performed were produced by the mem-
bers of the association, the services of such employees are not
excepted under section 907 (c) of the Social Security Act as
"agricultural labor," since the individuals are employees of the
association and not of a particular producer.:"
The California Unemployment Reserves Law 12 also excludes "agri-
cultural labor" from the term "employment." Effective February 14,
1937, the California Department of Employment, Unemployment Re-
serves Commission, adopted the Federal definition with minor differ-
ences which are unimportant for the present consideration,13 and also
2 1 Social Security Act, Bureau of Internal Revenue Rulings, July 6, 1936, XV-27-8157.
S. S. T. 10.
v: Chapter 352, Laws of 1935.
18 California Unemployment Reserves Commission, Rule 7.1:
The term "agricultural labor" includes all services performed
( 1) By an employee on a farm, in connection with the cultivation of the soil,
the raising and harvesting of crops ; the raising, feeding, management of livestock,
poultry, and bees; which includes , among others , the spraying, pruning, fumigating,
fertilizing, irrigating , and heating which may be necessary and incident thereto ;
(2) By an employee in connection with the drying, processing, packing, packag-
ing, transporting, and marketing of materials which are produced on the farm or
articles produced from such materials , provided such drying , processing , packing,
packaging, transporting, or marketing is carried on as an incident to ordinary
farming operations as distinguished from manufacturing or commercial operations.
The services hereinabove set forth do not constitute agricultural labor unless
they are performed by an employee of the owner or tenant of the farm on which,
the materials in their raw or natural state were produced Such services, however,
do not constitute agricultural labor if they are carried on as an incident to manu-
facturing or commercial operations.
As used herein the term "farm" Includes , among others, stock, dairy, poultry,
fruit, and truck farms, plantations , ranches, ranges , orchards, and vineyards.
Forestry and lumbering are not included within the exemption of agricultural,
labor.
1282 NATIONAL LABOR RELATIONS BOARD
issued the following statement as information to packing-house
operators:
Before the drying, processing, packing, and packaging of farm
products can be exempted as "agricultural labor," these opera-
tions must be performed exclusively on produce grown on a farm
of which the packing house operator is the owner or tenant.
Further, it must be carried on as an incident to general farming
operations rather than as a commercial or manufacturing
operation.
Non-profit cooperative packing houses are usually operated by
groups of farmers and, although packing is carried on exclu-
sively for members, labor employed by such non-profit coopera-
tive packing associations is not exempt from the Act as
"agricultural labor." 14
The United States Bureau of the Census classifies workers such as
those employed by the respondent as being employees of wholesale
establishments and not as agricultural or farm laborers 15
In its brief filed January 10, 1938, the respondent argues that the
intent of Congress can best be gathered from the definition of "agri-
cultural labor" as found in the proposed Fair Labor Standards Act
of 1937 which was passed by the Senate on July 31, 1937.16 The
Senate bill excluded from the definition of "employee," . . . "any
person employed in agriculture." With respect to the limits of this
excluded group, the bill provided as follows:
SEC. 2. (a) . . . (7) . . . As used in this Act, the term "agri-
culture" includes farming in all its branches and among other
things includes the cultivation and tillage of the soil, dairying,
forestry, horticulture, market-gardening, and the cultivation and
growing of fruits, vegetables, nuts, nursery products, ferns,
flowers, bulbs, livestock, bees and poultry . . . or any other
agricultural or horticultural commodity, and any practices ordi-
narily performed by a farmer or on a farm as an incident to
such farming operations, including delivery to market.
(19) The term "person employed in agriculture" as used in
this Act, insofar as it shall refer to fresh fruits or vegetables,
shall include persons employed within the area of production
engaged in preparing, packing, or storing such fresh fruit or
vegetables in their raw or natural state.
The respondent's brief points out that the definition of "person
employed in agriculture" was subsequently broadened by the House
14 Respondent ' s Economic Affidavit of J. Eliot Colt , Exhibit 4, Code No. R-4007a-09.
15 Census of Business , Wholesale Distribution : 1935, Vol. 1-Page 74.
16 Senate Bill No. 2475.
DECISIONS AND ORDERS 1283
on December 17, 1937, to include persolis^ employed in packing by'
cooperative associations. 17 However, on December 17 the bill was not
passed but was recommitted to the House Labor Committee.
It is therefore significant that the Fair Labor Standards Act of
1938 which was passed by the last Congress 18 and approved by the
President on June 25, 1938, contains the following provisions :
DEFINITIONS
SEC. 3. As used in this Act-
(f) "Agriculture" includes farming in all its branches and
among other things includes the cultivation and tillage of the
soil, dairying, the production, cultivation, growing,, and har-
vesting of any agricultural or horticultural commodities (in-
cluding commodities defined as agricultural commodities in
section 15 (g) of the Agricultural Marketing Act, as amended),
the raising of livestock, bees, fur-bearing animals, or poultry,
and any practices (including any forestry or lumbering opera-
tions) performed by a farmer or on a farm as an incident to or
in conjunction with such farming operations, including prepa-
ration for market, delivery to storage or to market or to car-
riers for transportation to market.
EXEMPTIONS
SEC. 13. (a) the rovisions of sections 6 and 7 shall not apply
with respect to . ."
(6) any, employee employed in agriculture; or . . .
(10) to any individual employed within the area of produc-
tion (as defined by the Administrator), engaged in handling,
packing, storing, ginning, compressing, pasteurizing, drying,
preparing in their raw or natural state, or canning of agricul-
tural or horticultural commodities for market, or in making
cheese or butter or other dairy products.
We think it plain that the wages and hours provisions of the Fair
Labor Standards Act of 1938 are prevented from applying to "any
individual employed within the area of production ... engaged in
handling, packing, . . . preparing in their raw or natural state, or
canning of agricultural . . . commodities for market . . ." by an
express statutory exemption and not because such an individual is
"The brief filed January 10, 1938, quotes this amended provision as follows :
(20) The term "person employed in agriculture " as used in this Act shall include
persons employed within the area of production engaged in preparing , packing, or
storing agricultural commodities in their raw or natural state, and shall include
persons employed by ' -any cooperative association as defined in Section 15, as
amended, of the Agricultural Marketing Act if such cooperative association is
engaged in preparing , packing or storing agricultural commodities in their raw
or natural state
1 Public Act No 718, 75th Congress
1284 NATIONAL LABOR RELATIONS BOARD
considered as being employed in agriculture. The Fair Labor Stand-
ards Act of 1938 expressly limits its definition of "agriculture" to
employees engaged in "farming . . . and any practices . . . per-
formed by a farmer or on a farm as an incident' to or in connection
with such farming operations." This definition is consistent with
the definitions of "agricultural labor" and "agricultural laborer"
applied by the Treasury Department and the Social Security Board,
and the Bureau of the Census.
It is on the basis of these Federal definitions that the California
Department of Employment, Unemployment Reserves Commission,
has as we have noted above, made the broad ruling that "labor
employed by ... non-profit cooperative packing associations is not ex-
empt from the Act as `agricultural labor.'" We are not even faced
with as broad a problem. We are, in the present case, not concerned
with all the labor employed by the respondent. We are concerned
only with its packing-house workers.
We find, in conclusion, that the individuals employed by the respond-
ent in its packing house are not employed as agricultural laborers.
III. THE UNFAIR LABOR PRACTICES
A. The discharge of O. W. Rudick
O. W. Rudick had been an employee of the respondent since the 1935
season, when he worked as an orange grader from August to November.
He continued as a grader during the entire'=1936 Valencia orange
season, and in 1937 the respondent called him back to this work at the
start of the navel -packing operations in February . At the end of
May 1937, Mrs. Nora Shermer , floorlady supervising the orange graders
and packers , transferred Rudick from his job as grader to assistant on
the orange-lidding machine . This new position involved the handling
and sorting of the numbered tickets placed on each box of oranges as
a means of identifying the packer . After a few days at the lidding
machine, Rudick took over another job of stacking boxes and cleaning
out the orange -washing machine in a department under Fred Louth,
superintendent of all packing operations. At the beginning of July,
Rudick's hourly wage was increased from 321/2 cents to 421/2 cents. He
joined the Union on July 21, 1937, which is the earliest membership
date shown for any of the persons listed in the complaint.
On Saturday , July 31 , Louth came up to Rudick at the noon clean-up
and said, "Jack , lemons are getting a little scarce . Things are slow
in the lemon house and I'm going to have to lay some men off. I'm
going to have to lay you off." Rudick was thereupon handed his
check, and he has since then never been employed by the respondent.
Within the following week, a notice was posted on the respondent's
bulletin board which stated that Rudick had been discharged for in-
DECISIONS AND ORDERS 1285
efficiency. Neither Louth nor Clarence P. Blatz, the respondent's
general manager, who testified that the notice was probably posted
under his direction, could remember anything about what the notice
contained.
The record discloses, however, that at the time Rudick was trans-
ferred from grader to assistant on the lidding machine, Mrs. Shermer
reprimanded him for leaving his place at the grading table and for
criticizing the other graders. Rudick then declared that if he could not
please her the only thing for lum to do was to quit, but the dispute
was finally straightened out when Mrs. Shermer stated that she was
putting him to work on the lidding machine. The respondent also
submitted evidence that Rudick mixed up the tickets during the several
days he was charged with this duty and that his cleaning of the
washing tank consumed about 5 minutes longer than the normal time.
In addition, Louth testified : "I laid him off indefinitely because of
his physical condition * * * Rudick would always complain about
not being able to do the heavy work and said he couldn't handle heavy
shooks."
The record affords insufficient basis upon which to sustain the allega-
tion that the respondent discharged O. W. Rudick because of his union
membership or activities. We accordingly find that the respondent,
in the case of 0. W. Rudick, did not discriminate in regard to hire and
tenure of employment and thereby discourage membership in a labor
organization.
B. The respondent's activities prior to the lay-off
The employees of the respondent started joining the Union during
the last week of July 1937. As evidenced by the notices distributed
by the respondent as well as by the activities of its general manager,
by early August 1937, if not before, the respondent knew of the activ-
ities of the Union and had formulated definite labor policies and
practices in opposition to the unionization of its employees.
This attitude of the respondent towards the exercise by its em-
ployees of their right to self-organization was apparently well known
to the orchard owners who were its members. While delivering fruit
to the packing house early in August, Chester A. Clevenger, one of
the respondent's members, told his nephew, William H. Turner, a
general packing-house laborer named in the complaint, "Bill, I want
this strike and union business stopped. If you don't stop it, you are
going to lose your job sure. I'm doing this for the sake of your wife
and three children. If you don't cut this out now, you won't have
any job." When called as a witness for the respondent, Clevenger
explained that this statement was "Just a friendly talk * * * His
wife was a relative, and I hated to see the fellow get out in any
147841-39-vol. 10-82
1286 NATIONAL LABOR RELATIONS BOARD
way * * * I told him that he had better go a little bit care-
ful * * * I says, `You have got a family to consider.' He says,
,Well, the packers are not getting a fair deal.' I says, `I don't know
anything about the packers, that has nothing to do with me at all.
The idea is that your family is jeopardized. 'Their living is in the
balance."'
On August 5, 1937, the respondent distributed the following notices
throughout the packing house :
To The Employees:
The Management wishes once more to inform you that you do
not have to belong to a union to work at the North Whittier
Heights packing plant.
Most particularly you are not obliged to join any labor organi-
zation under coercion or against your will.
NOTICE IS HEREBY GIVEN THAT THREATS AGAINST YOU OR ANY EM-
PLOYEE BY ANOTHER WORKER WILL BE THE GROUNDS FOR INSTANT
DISMISSAL.
This House has notified Dr. Town Nylander, Director of the
Regional Labor Board, that it does not come under the regulations
of the Wagner Act, and any claims to the contrary by outside
agitators should be discounted.
EMPLOYEES ARE URGED TO REPORT TO THE MANAGEMENT ANY
THREATS OR ATTEMPTED INTIMIDATION.
CLARENCE P. BLAT7. Manager.
Superintendent Louth visited the home of the pressman of the
orange-lidding machine, Aniceto Carrera, after working hours on the
next day. Carrera testified : "He told me the reason he was over to
my place was to tell me that I had to quit talking union in the house
and quit going to union meetings. He told me he didn't want to see
anything happen to me. He told me not to say anything, that he went
over to my place to tell me that." Louth's own testimony gives the
following as the statement which he made to Carrera : "The reason I
have come over is to talk to you in a friendly way. I understand from
the outside that you are interested in the union. Whatever you do,
don't talk union during working hours. Do it on the outside. I am
just telling you that from a friendly standpoint."
A meeting of the Union was held in the basement of Carrera's
mother-in-law's house on the night of August 10. The meeting was
interrupted when it was noticed that there was in attendance a stranger
who was not an employee of the respondent, but whose name was
later learned to be McKinley Gowens. Carrera and Julius Rath, a
carloader at the packing plant, told Gowens that it was a closed meet-
ing and escorted him out of the house. As he reached the street,,
DECISIONS AND ORDERS 1287
Gowens pulled out a box of matches, struck and lit one, and then held
the lighted match high in his right hand. An automobile at once
moved up and stopped in front of the house. Gowens immediately ran
to the automobile and stepped in as it pulled away. Rath testified
that Blatz was driving the car. Carrera stated that he did not recog-
nize the person driving because he was watching Gowens, but he iden-
tified the automobile as belonging to Blatz. At the hearing General
Manager Blatz appeared as a witness on behalf of the respondent, but
he entirely refrained from mentioning this incident and did not deny
his participation in it.
On August 12, 1937, there were circulated among the employees the
following statements :
To the Employees:
So much confusion exists in the minds of workers because of
exaggerated claims by labor organizers regarding the Wagner
Act that the following information has been compiled from the
decisions handed down by the United States Supreme Court lase
Spring.
1. Nothing in the National Labor Relations (Wagner) Act pre-
vents the maintenance of the Open Shop.
2. Employers subject to the act are not compelled to enter into
agreements with labor unions.
3. No employee has to join a labor union to receive any real or
fancied benefit under the Act. The Act provided that a majority
of the employees may elect a spokesman for negotiating with
employer. But it does not state that workers must belong to a
union 100 per cent.
4. The Act fixes the bargaining agency as any group compris-
ing a majority of employees, regardless of whether they are mem-
bers of a labor union or not. (Recent court decisions give mi
nority groups a right to bargain for themselves.)
5. THE ACT REQUIRES EMPLOYERS UNDER ITS JURISDICTION TO BAR-
GAIN COLLECTIVELY WITH EMPLOYEES BUT DOES NOT COMPEL AGREE-
MENTS, EITHER ORAL OR WRITTEN.
Careful study of the above facts will probably prove conclu-
sively that a lot of "loose talk" has been circulated about what
employers who are admittedly under the Act are required to do
by this law.
THEN CONSIDER THE FACT THE WAGNER ACT SPECIFICALLY EXEMPTS
AGRICULTURAL WORKERS AND THE CITRUS INDUSTRY HAS MADE CLEAR
ITS CONTENTION THAT ITS EMPLOYEES WHETHER IN CULTIVATION,
PICKING OR PACKING FRUIT ARE AGRICULTURAL AND THEREFORE
EXEMPT.
CLARENCE P. BLATZ, Manager.
1288 NATIONAL LABOR RELATIONS BOARD
C. The lay-off on August 14
Fred Louth passed out notices to the employees on the morning of"
August 14 and added the remark, "Here's another paper for you to
read." The notices stated :
To all Employees:
Due to conditions beyond our control, orange packing will be
discontinued indefinitely at 12: 00 o'clock noon, Saturday, Au-
gust 14, 1937. The lemon house will also shut down for an in-
definite period beginning at the same time. Therefore it will be
necessary that all employees in all departments of both the orange
and lemon division be laid off until work is resumed, and are
notified to return.
Upon your request, your pay in full may be obtained at the
office Monday afternoon.
CLARENCE P. BLATZ, Manager.
The respondent adduced evidence that by August 13 it had com-
pleted the second round of picking the Valencia oranges in the
groves of its members ; that its picking superintendent had reported
the presence of split ends among the fruit and the possibility of
decay; and that the pre-cooling plant at the packing house was
filled to the capacity permitted by the condition of the fruit. It
was decided to ship the fruit remaining in the pre-cooler and to
discontinue both the picking and packing operations until the fruit
that was splitting dropped off. On August 14, therefore, the re-
spondent temporarily laid off all its employees, the 118 workers in
the packing house as well as the 105 pickers, until such time as the
condition of the fruit improved and work was resumed.
The record fails to substantiate the allegations of the complaint
that by its lay-off the respondent engaged in an unfair labor prac-
tice within the meaning of Section 8 (1) and (3) of the Act. The
allegations of the complaint with respect to the lay-off will, there-
fore, be dismissed.
D. The resumption of operations and the failure to reinstate certain
employees
A table showing the names of the 27 persons listed in the com-
plaint, their positions in the packing house on August 14, and the
number of seasons19 during which they were employed by the
respondent follows :
19 The normal packing period between January and September or October is termed a
season.
DECISIONS AND ORDERS 1289
Position on August 14
Number of
seasons
employed
by respond-
ent
Della Bearden ----------------------------------
•Clara Blazer -------------------------------------
Orange packer--- --------------------------
Orange packer---------------------------- 11
,Clarence Blazer --------------------------------- Orange packer----------------_---------- 11
George Blazer -----------------------------------
Orange packer---------------------------- 11
Mlarion Blazer -----------------------------------
Orange packer---------------------------- 2
.Jessie Bruce------------------------------------- Orange packer---------------------------- 11
Elinor Butler------------------------------------
Amelia Carrera----------------------------------
Orange packer-----------------------------
Lemon packer---------------------------- 7
Aniceto Carrera--------------------------------- Pressman on lidding machine- ------------ 14
Lena Graham ----------------------------------- Lemon packer--------------------------- 7
Laura Gregory----------------------------------
Orange packer---------------------------- 2
:S. E Hammer---------------------------------
Lemon packer----------------------------- 4
Anne Haworth ---------------------------------- Orange packer
--------------------------- 3
Alda Hibbard----------------------------------- Orange packer
---------------------------- 16
.John H Hibbard-------------------------------- Orange packer -- ---------------------- --
17
Mel-vma John.ton------------------------------- Orange packer----------------------------- 16
Fannie Matlock--------------------------------- Lemon packer ----------------------------- 8'/z
Joe Matlock------------------------------------- General house work -----------------------
10%
Vera Melntire------------------------ --------- Lemon packer-----------------------------
3
Velma Palmer-----------------------------------
Julius Rath -------------------------------------
-Georgia Ruth -----------------------------------
Stella Rudick -----------------------------------
Orange packer ----------------------------
Carloader--------------------------------
Orange packer----------------------------
Orange packer----------------------------- 3
Alice Towler ------------------------------------ Orange packer---------------------------- 12
'William H Turner ------------------------------ General house work--- -------------------- 7
B asie Walker-------------------------------- Orange packer----------------------------
6
Vivian Wilkins---------------------------------- Lemon packer
----------------------------- 4;4
After the lay-off, operations in the respondent's lemon house were
resumed on Monday, August 23, and in the orange department on the
next day. Each of the employees listed above was at that time
a member of the Union, which then had a total membership list
.of 32 employees. Although, in accordance with the lay-off notice
and with the custom at the start of a new season, the supervisors
went about notifying the employees to return, none of the 27 persons
named above were recalled. Of the five members of the Union not
listed above, O. W. Rudick had been discharged 2 weeks before and
was of course not recalled ; three members were called back to work,
of whom one accepted and was employed by the respondent; and the
record furnishes no information as to the fifth. Thus the 27 com-
plaining witnesses not reinstated included over 80 per cent of the
union membership.
On August 24, Barney L. Culpepper and Barney J. Dreifus, as
representatives of the Union, visited Blatz at his office and asked
why the union members had not been returned to work. Blatz
declared the union people were agitators and troublemakers, had
been intimidating and coercing the rest of the employees in regard
to joining the Union, were interfering with the production and flow
of fruit through the house, and that there was no chance of their
being called back any more.
Later during the same day, Culpepper again saw Blatz, this time
with a group of about 15 of the individuals named in the complaint.
There is some confusion concerning the conversation which took
1290 NATIONAL LABOR RELATIONS BOARD
place. However, although at least two other representatives of the
respondent were in the office with Blatz, only Blatz denied any
portions of the remarks which were attributed to him by the union
witnesses. A consideration of all the testimony establishes that, as
stated by one witness, Blatz told them they had lost their jobs in
the plant because of "union agitation, passing notes, standing around
in groups, and slowing up production;" and that he also objected
because they had never asked him if they 'could join the Union.
When questioned by Culpepper, Blatz announced that the respondent
had never practiced keeping a seniority list and that the individuals
in the group could come back and ask for their jobs individually.
To the response which was voiced by several, "I make application
right now," Blatz offered no answer. Throughout this conversation
there was seated beside Blatz, McKinley Gowens, the same person
who had been put out of the union meeting and had driven away
with Blatz 2 weeks before.
The remainder of the individuals named in the complaint, also
accompanied by Culpepper, spoke to Louth in the office of the
respondent on September 3 and asked about getting back to work.
Louth told them that he never had anything to do with hiring and
that Blatz was out of town, but he finally took down their names
as applicants for employment. Several in the group had personal
effects remaining in the plant, and after stating that he did not
think he could let them go in themselves, Louth went in and brought
back their belongings.
No action was ever taken by the respondent in connection with
these applications and requests for reinstatement, unnecessary though
they were under the terms of the lay-off and the subsequent resump-
tion of operations. It is clear that these 27 individuals were tempo-
rarily laid off in the normal course of the respondent's operations
and were advised that they would be recalled at the resumption of
work. Upon the commencement of operations on August 23 and 24,
the respondent deliberately failed to call them back to work and
treated the entire group as having been discharged. At the same
time, at least seven employees who had never worked for the respond-
ent before were taken on in the packing plant. As to the reasons
for this discrimination, we are afforded best guidance by the prior
activities of the respondent which have been set forth above, as well
as by the contentions offered by the respondent during the hearing
and in its brief.
E. Conclusions regarding the failures to reinstate
The respondent denies that the failure to reinstate the complaining
witnesses was due to their connection with the Union. The respond-
ent contends, in the first place, that upon the resumption of operations
DECISIONS AND ORDERS 129-1
on August 23, the lack of fruit did not permit the reinstatement of
all the 118 workers employed in the packing plant on August 14 and
that only 100 were taken back. On 'August 14 there had been 105
pickers in the orchards, but on August 24 only 93 pickers were re-
called, and the amount of fruit they would bring to the house would
necessarily be-smaller. The respondent, therefore, reduced its pack-
ing force by 18 workers. Since this is still a reduction of nine less
than the whole Union group which it failed to reinstate, and it was
admitted that seven new employees were taken on, the respondent's
contention is, at best, inadequate.
The respondent also asserted that besides the 27 members of the
Union, there were eight other employees who had been working on
August 14 and who were not in the Union, whose names do not ap-
pear among those employed during the week of August 24. This
contention is discredited by a statement of counsel for the respond-
ent indicating that some of these eight workers were reemployed
after the week of August 24.
When the record is analyzed in terms of the various jobs in the
house, the respondent's explanation of a normal reduction in its force
becomes even less convincing. As to the lemon packers, the pay roll for
the week of August 23 shows that six packers employed on August
14 were dropped'20 each of those refused reinstatement being a member
of the Union and a complaining witness. Between the date of the
resumption of operations and October 1, 1937, the greatest number of
lemon packers was 21, representing one more than had been working
on August 14, but the respondent offered no testimony as to whether
the employees added after August 23 had ever worked in the plant
before. Among the orange packers, on August 14 there were 37
employed; during the week of August 24 there were 26; and by the
time of the hearing the force had grown to 32. Since 17 orange packers
are listed among the complaining witnesses, while the reduction only
amounted to 11, it is apparent that the respondent hired 6 new orange
packers within the week that it resumed operations after the lay-off.
Mrs. Shermer, floorlady of the orange department, convincingly
demonstrated the untenable nature of the respondent's contention that
the lack of fruit forced a reduction in the number of employees, when
she testified that late in August 1937 she wrote a letter to a friend, Miss
Nan Bradley, at Santa Paula, California, asking if she and her
daughter would come down and pack for the respondent, since there
was a scarcity of packers.
The respondent contends, secondly, that prior to the lay-off there
was a general condition of unrest and great "tension existing in the
20 As explained by Mrs. Sheimer , Board Exhibit No. 4 lists 20 lemon packers on August
14, while Board Exhibit No. 5 indicates 14 lemon packers during the week beginning
August 23.
1292 NATIONAL LABOR RELATIONS BOARD
plant due to the fact that certain of the complaining witnesses were
intimidating and coercing the other employees. The respondent first
offered evidence in very general terms that there was considerable dis-
cussion between employees and a general state of unrest, and that as a
result production was retarded. The record makes it obvious, how-
ever, that the employees have always talked among themselves while
in the packing house; that the packers constantly complained about
standing around and having nothing to do ; and that the lay-off
resulted from the condition of the fruit and because of an over-ac-
cumulation of fruit ready for shipment rather than a decrease in the
flow of fruit through the house. The testimony offered by the re-
spondent to prove the existence of a general unrest among its em-
ployees discloses that at the time of the lay-off the management
possessed only vague notions of a condition which it deemed to be
unsatisfactory. This reaction was not based upon the activities of its
own employees but was due to a general disapproval of union
affiliations which existed throughout the industry.21
The respondent next adduced proof of specific incidents which it
characterized as intimidation and coercion and cited as the causes of
the unrest and tension. It produced employees who testified that cer-
tain of the individuals named in the complaint had prior to the lay-off
referred to them as "stool pigeons," "yellow," and "scabs," and made
remarks such as, "You had better join the Union or you won't have a
job," or "You had better join before it is too late, or you will be sorry."
One employee testified that a member of the Union told her during
working hours, "I am not doing much today, I am talking Union."
Another employee testified as follows with reference to a conversation
n General Manager Blatz , upon examination by counsel for the Board, testified as
follows :
Q. In substance what did they (the various department heads ) tell you?
A Well, just a general report by all of them of the condition that existed in the
plant.
Q What condition did they report to you existed?
A Very much unrest.
Q Did they give any details?
A Not very much-just the unrest in the plant.
Q Did they tell you who was causing the unrest'+
A Well, there is no doubt but we did not have to be told . We could guess.
Q. You could observe from walking through the plant?
A. Yes
Q. Did you learn , either from observation or from reports , what subject was
causing unrest?
A. Yes
Q. And what did you learn about that?
A I learned that there was activity there that was unbecoming a packing house
for the best interests of the graders.
Q. But what was the activity?
A. Well, there was considerable discussion between individuals.
Q. Had there never been any discussion between individuals prior to last July?
A. Not of the nature that was being discussed there.
Q. And what was the nature?
A. Just an unrest.
Q. You mean they were discussing unrest?
DECISIONS AND ORDERS 1293
she had with one of the complaining witnesses : "I urged her to be very
careful about becoming involved in the union or any sort of organiza-
tion of that type unless she was sure she knew what she was getting
into,'and she replied that she could not see where she would be worse
off than at this time, she had not been able to make a living and she
could, not _see where it, would make .her:, any, worse- off. I told--,her I
thought it highly probable if she continued in that way she might lose
her job, and she said, if she was fired, or any of the workers were fired
for agitating that there would be a strike. I told her we would not all
strike, we were going to harvest the crop, and she said if We did that
they would picket. I told her I could not see what good picketing
would do, we would not pay any attention. She replied, if we came in
there we would get our heads knocked off." The respondent also
offered as examples of similar intimidation and coercion statements
made by several of the Union members that although it now cost $3
to join the Union, in a day or two it would be $7.
The majority of these statements were specifically denied, and even
if we assume that all of them were made, a count discloses that they
were charged against only 10 of the 27 complaining witnesses. The
record also establishes that many of the conversations were started by
non-union employees and that the remarks were accepted as jokes and
produced great laughter. In fact, the respondent's notices to its em-
ployees and the statements and activities of its supervisors contributed
materially to the uneasiness and tension concerning the problem of
whether or not it was safe to join the Union.22 There is no evidence
that the tension which existed was any more than is usual when such
an important thing as the development of a union in a hereto unorgan-
A. I would not say so
Q. No one ever reported to you they were discussing union affairs?
A Well, I don't have to be told.
Q. You knew they were?
A. Surely.
Q. You say you knew union matters were being discussed, did you ever hear any
discussed?
A. I never heard any discussed, no.
Q. Did any one of the managers of the departments tell you that union matters
were being discussed?
A. I don't think we ever thought anything particularly about the Union. We
thought more-we were more concerned about the work.
Q Did anyone ever tell you in so many words that the employees were dis-
cussing union matters and that was causing unrest?
A. No.
Q. Then how did you get the idea that the employees were discussing union
matters 9
A. It was a general thought throughout the whole country
Q Throughout the whole country?
A Throughout the whole industry.
Q And you just picked that thought up by mental telepathy?
A You might call it that.
sa Mrs. Shermer testified : "The girls didn't want to join They didn't know whether
they were going to lose their job-didn't know what to do Repeatedly they would say,
'Shermer, what shall I do?' I answered, 'I don't know what you should do. I only
know what I would do.'"
1294 NATIONAL LABOR RELATIONS BOARD
ized plant takes place, especially when this unionization is accompa-
nied by employer interference such as is shown in this case.
As its third contention, the respondent asserts that when it was re-
calling its employees it was informed that none of the Union help
would return unless all were reinstated. This argument is supplied by
Mrs. ' Shermer who testified that Blatz advised her when the plant
would reopen and told her to select her own packers and graders for
the orange department; that she did not know who were or who were
not members of the Union; that she prepared a list of "the ones (she)
thought would stand up on the job, that would need it. (There) had
(been) trouble, this agitation, this tension around everybody, and
(she) knew there were good ones who would not do it"; 23 and that on
August 23 she proceeded to recall those named on her list. Although
her testimony is replete with inconsistencies, when pieced together it
indicates that almost as soon as she started to recall her force, she was
told by two members of the Union that they would not return to work
unless all the former employees were reinstated.24 Mrs. Shermer did
not know what to do. She hurried back to the plant, to see Blatz, but
he was unavailable. Her testimony continues : "Then I went im-
mediately to Joe (Josephine) Alff. I said, `Work tomorrow, Joe,' and
she said, `All right.' I knew Joe was a Union member. She is working
in the house now."
After talking to Mrs. Alff, Mrs. Shermer returned to the plant once
more and this time she was able to see Blatz. Her testimony goes on :
I told Mr. Blatz what Tom and Juanita Landers told me
* *. He said if that was the attitude they were taking, there is
no need to go further-to get different ones * * >, . He asked
me if I had any of these people on my list. I told him I did have.
He said : "If one won't come back without them all, why call any
of them? Why have anyone in the house that is going to lead to
trouble? If one won't come they won't any."
2^' It is significant that Mrs. Shermer testified that Stella Rudick and Alda Hibbard
were included on this list , since several of the remarks most emphasized by the respondent
and characterized as constituting intimidation and coercion were attributed to these two
women
21 As to this incident , Mrs. Shermer testified : "I started in Puente , told some of my
graders; went to Tom and Juanita Landers , and said 'Work in the morning.' Tom says,
'I don't know . Juanita, what do you say?' She came to the door and said, 'Are they all
going to be there ?' I said, 'There is going to be a portion of them there We are not
going to use them all.' She said , ' If all the old workers are not there , there is no need
of us coming.' I said , 'Juanita, it is your job if you want it.' She said , 'We have
joined the Union' I said, 'I know you have joined the Union , but you have never caused
me any trouble and if you and Tom want to come you can come tomorrow ' She said,
'No need of our coming ; they would not let us woik' I said, ' What do you mean?' She
said, 'The Union would not let us work. We could work tomorrow but not the next day
We have to stay by the old workers ' I said, 'There will be old ones there .' She said,
'We appreciate that you have done this There is going to be lots of mud slung, but
remember , Tom and I have never said it You have always been a friend to us.' I said,
'Juanita, it is your job if you want it' "
F.I,. DECISIONS AND ORDERS 1295
It is impossible to give credence to this contention of the respond-
ent. The entire force of the argument rests upon the conclusion that
the statement made by the Landers on August 23 represented the
policy of all the Union employees. Yet immediately after the state-
ment had been made to her, Mrs. Shermer went to Josephine Alff,
whom she knew to be a Union member, asked her to return to work,
and received the answer "all right." Only subsequently did Mrs.
Shermer speak to Blatz and decide to eliminate the Union people from
her reinstatement list. The intervening episode with Josephine Alff
destroys whatever strength there might be in the respondent's line of
reasoning.' Moreover, Mrs. Shermer had charge of employment only
in the orange department. The lemon packers were under the super-
vision of another foreman and had resumed work on August 23 when
Mrs. Shermer was just starting out to recall the force needed to com-
mence orange operations on the next day. The respondent offered
no explanation whatever to refute the fact that the reduction among
the lemon packers had been confined entirely to the ranks of the
Union.
We find that the respondent failed to reinstate Amelia Carrera,
Lena Graham, S. E. Hammer, Fannie Matlock, Vera McIntire, and
Vivian Wilkins on August 23, 1937, and Della Bearden, Clara Blazer,
Clarence Blazer, George Blazer, Marion Blazer, Jessie Bruce, Elinor
Butler, Aniceto Carrera, Laura Gregory, Anne Hawarth, Alda
Hibbard, John H. Hibbard, Melvina Johnston, Joe Matlock,
Velma Palmer, Julius Rath, Georgia ,Ruth,. Stella Rudick, Alice
Towler, William H. Turner, and Bessie Walker on August 24, 1937,
and thus discriminated against them because they joined and as-
sisted the Union. We further find that by these failures to reinstate
and by the warnings and threats made to its employees, the respond-
ent has discriminated against its employees with respect to hire and
tenure of employment and thereby discouraged membership in a
labor organization, and that by such acts the respondent has inter-
fered with, restrained, and coerced its employees in the exercise of the
rights guaranteed in Section 7 of the Act. We find that at the time
of the hearing, although many of them had obtained temporary work
in other packing or walnut houses, the above-named employees had
not obtained any other regular and substantially equivalent employ-
ment.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
We find that the activities of the respondent set forth in Section
III above, occurring in connection with the operations of the respond-
ent described in Section I above, have a close, intimate, and substan-
tial relation to trade, traffic, and commerce among the several States,
1296 NATIONAL LABOR RELATIONS BOARD
and tend to lead to labor disputes burdening and obstructing com-
merce and the free flow of commerce.
Upon- the- basis of the foregoing findings of fact, and upon the
entire record in the proceeding, the Board makes the following :
CONCLUSIONS OF LAW
1. Citrus Packing House Workers Union, Local No. 21091, is a
labor organization, within the meaning of Section 2 (5) of the Act.
2. The individuals employed by the respondent in its packing house
at Puente, California, are employees within the meaning of Section
2 (3) of the Act.
3. The respondent, by discriminating in regard to the hire and ten-
ure of employment of Della Bearden, Clara Blazer, Clarence Blazer,
George Blazer , Marion Blazer , Jessie Bruce, Elinor Butler, Amelia
Carrera, Aniceto Carrera, Lena Graham, Laura Gregory, S. E. Ham-
mer, ,Anne Hawarth, Alda Hibbard, John H. Hibbard, Melvina
Johnston, Fannie Matlock, Joe Matlock, Vera McIntire, Velma Pal-
mer, Julius Rath, Georgia Ruth, Stella Rudick, Alice Towler, William
H. Turner, Bessie Walker, and Vivian Wilkins and each of them, and
thereby discouraging membership in a labor organization, has engaged
in and is engaging in unfair labor practices within the meaning of
Section 8 (3) of the Act.
4. The respondent, by interfering with, restraining, and coercing
its employees in the exercise of the rights guaranteed in Section 7 of
the Act, has engaged in and is engaging in unfair labor practices,
within the meaning of Section 8 (1) of the Act.
5. The, aforesaid unfair labor practices are unfair labor practices
affecting commerce, within the meaning of Section 2 (6) and (7)
of the Act.
6. The respondent has not engaged in unfair labor practices, within
the meaning of Section 8 (1) and (3) of the Act, with respect to
O. W. Rudick and with respect to the lay-off on August 14, 1937.
ORDER
Upon the basis of the findings of fact and conclusions of law and
pursuant to Section 10 (c) of the National Labor Relations Act, the
National Labor Relations Board hereby orders that the respondent,
North Whittier Heights Citrus Association, and its officers, agents,
successors, and assigns, shall:
1. Cease and desist from :
(a) Interfering with, restraining, or coercing its employees in the
exercise of the right to self-organization, to form, join, or assist
labor organizations, to'bargain collectively through representatives
of their own choosing, or to engage in concerted activities for the
DECISIONS AND ORDERS 1297
purpose of collective bargaining or other mutual aid and protection,
as guaranteed in Section 7 of the Act ;
(b) Spying, maintaining surveillance, or employing any other
manner of espionage over the meetings or meeting places and, ac,
tivities of the Citrus Packing House Workers Union, Local No.
21091, or any other labor organization of its employees;
(c) Discouraging membership in Citrus Packing House Workers
Union, Local No. 21091, or any other labor organization of its em-
ployees, by discharging or refusing to reinstate any of its employees
or in any other manner discriminating in regard to their bile or
tenure of employment, or any term or condition of their employment,
or by threats of such discrimination, because of membership in or
activity in behalf of Citrus Packing House Workers Union, Local
No. 21091, or any other labor organization.
2. Take the following affirmative action which the Board finds
will effectuate the policies of the Act :
(a) Upon the resumption of operations, offer to Della Bearden,
Clara Blazer, Clarence Blazer, George Blazer, Marion Blazer, Jessie
Bruce, Elinor Butler, Amelia Carrera, Aniceto Carrera, Lena
Graham, Laura Gregory, S. E. Hammer, Anne Hawarth, Alda Hib-
bard, John H. Hibbard, Melvina Johnston, Fannie Matlock, Joe
Matlock, Vera McIntire, Velma Palmer, Julius Rath, Georgia Ruth,
Stella Rudick, Alice Towler, William H. Turner, Bessie Walker,
and Vivian Wilkins immediate and full reinstatement to their
former positions without prejudice to their seniority or other rights
and privileges ;
(b) Make whole the persons named in paragraph (a) above for
any loss of pay they have suffered by reason of the respondent's
discrimination in regard to their hire and tenure of employment,
by payment to each of them, respectively, of a sum of money equal
to that which each would normally have earned as wages during the
period from the date of such discrimination against him to the date
of the offer of reinstatement, less his net earnings 25 during said
period; deducting, however, from the amount otherwise due to each
of the said employees, monies received by said employee during said
period for work performed upon Federal, State, county, municipal,
or other work-relief projects, and pay over the amount, so deducted,
25 By net earnings" is meant earnings less expenses , such as for transportation, room,
and board, incuried by an employee in connection with obtaining work and working
elsewhere than for the respondent , which would not have been incurred but for the
unlawful discrimination against him and the consequent necessity of his seeking employ-
ment elsewhere See Matter of Crossett Lumber Company and United Brotherhood of
Carpenters and Joiners of America, Lumber and Sawmill Workers Union , Local 2590, 8 N L
R B 440. Monies received for work performed upon Federal, State, county, municipal,
or other work -relief projects are not considered as earnings, but, as provided in the Order,
shall be deducted from the sum due the employee , and the amount thereof shall be paid
over to the appropriate fiscal agency of the Federal , State, county , municipal , or other
government or governments which supplied the funds for said work -relief projects
1298 NATIONAL LABOR RELATIONS BOARD
to the appropriate fiscal agency of the Federal, State, county, munici-
pal, or other government or governments which supplied the funds
for said work-relief projects;
(c) Post immediately notices to its employees in conspicuous
places in its packing house in Puente, California, stating that the
respondent will cease and desist as aforesaid; and keep such notices
posted until at least sixty (60) days after the date of the resumption
of operations;
(d) Notify the Regional Director for the Twenty-first Region
in writing within ten (10) days from the date of this Order what
steps the respondent has taken to comply herewith.
AND IT IS FURTHER ORDERED that the complaint be, and it hereby
is, dismissed in so far as it alleges that the respondent has engaged
in unfair labor practices within the meaning of Section 8 (1) and
(3) of the Act, with respect to O. W. Rudick and with respect to the
lay-off on August 14, 1937.
MR. DONALD WAKEFIELD SMITH did not participate in the decision
of this case.