Sierra Madre-Lamanda Citrus Association

National Labor Relations Board - Board Decisions

Apr 23, 1940

23 N.L.R.B. 143 (N.L.R.B. 1940)

In the Matter of SIERRA MADRE-LAMANDA CITRUS ASSOCIATION AND
BENJAMIN H. BETZ, AN INDIVIDUAL DOING BUSINESS AS BETZ PACKING
COMPANY and CITRUS PACKING HOUSE WORKERS UNION, LOCAL No
20766
Case No. C-1112.-Decided April 23, 1940
Citrus Fruit Packing Industry-Employee : agricultural laborer : individuals
employed by cooperative packing house or plant in packing of citrus fruits
not employed as agricultural laborers ; seasonal employees-Settlement Agree-
ment: not given effect where unfair labor practices occurred subsequent to;
findings and order based on events occurring before and after-Employer:
contracting parties one of whom is vested with complete control of employment
and the other who controlled places where employees worked, supplied the
money for their pay, retained control over employment to extent that persons
it objected to were not hired and who supervised and inspected the work are
employers within the meaning of Section 2 ( 2) of the Act-Interference, Re-
straint, and Coercion : anti-union speech ; anti -union statements ; expressed
opposition to labor organization ; misrepresenting jurisdiction of the Board and
purposes of the Act to employees-Discrimination : refusals to reinstate and
discharges , for union activity-Regular and Substantially Equivalent Employ-
ment: employee given employment elsewhere by one of the respondents found
not to be-Reinstatement Ordered-Back Pay: awarded.
Mr. David Sokol, for the Board.
Mr. Ivan G. McDaniel, of Los Angeles, Calif., for the respondents.
Mr. J. W. Schofield, of Pasadena, Calif., for the Union.
Mr. Edwin L. Swope, 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. 20766, herein called the Union, the
National Labor Relations Board, herein called the Board, by its
Regional Director for the Twenty-first Region (Los Angeles, Cali-
fornia), issued its complaint dated September 19, 1938, against
Sierra Madre-Lamanda' Citrus Association, Pasadena, California,
herein called respondent Sierra, and Benjamin H. Betz, an indi-
vidual, doing business as Betz Packing Company, Monrovia, Cali-
fornia, herein called respondent Betz , alleging that the respondents
23 N. L. R. B., No. 13.
143
144 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
had engaged in and were engaging in unfair labor practices affect-
ing commerce within the meaning of Section 8 (1), (3), and (5) and
Section 2 (6) and (7) of the National Labor Relations Act, 49 Stat.
449, herein called the Act. Copies of the complaint and accompany-
ing notice of hearing were duly served upon the respondents and
the Union.
The complaint alleged in substance: (1) that on or about May
24, 1937, and September 20, 1937, and thereafter, the respondents
refused to bargain collectively with the Union as the exclusive rep-
resentative of their employees in an appropriate unit; (2) that the
respondents discriminated in regard to the hire or tenure of employ-
ment of 15 of their employees, named in the complaint,' because of
their union affiliation and organizational activity, thereby discourag-
ing membership in the Union; and (3) that by these and other acts
the respondents interfered with, restrained, and coerced their em-
ployees in the exercise of the right to self-organization and to engage
in concerted activities for mutual aid and protection. On October
1, 1938, the respondents filed a joint answer denying that they had
engaged in the unfair labor practices alleged in the complaint. In
addition, the respondents' answer set forth as separate and special
defenses: (1) that their employees are all "agricultural laborers"
within the meaning of Section 2 (3) of the Act and are therefore
exempt from the jurisdiction of the Board; (2) that the respondents
are not engaged in commerce within the meaning of the Act; (3)
that the Board is barred by laches from proceeding with this case;
and (4) "that another action is pending between the parties hereto
involving some of the issues involved in these proceedings and said
action has not been determined by the Board."
Pursuant to the notice, a hearing was held in Los Angeles, Cali-
fornia, on October 3, 4, 6, 7, 8, and 10, 1938, before Gustaf B. Erick-
son, the Trial Examiner duly designated by the Board. The Board,
the respondents, and the Union were represented by counsel and
participated in the hearing. Full opportunity to be heard, to exam-
ine and cross-examine witnesses, and to introduce evidence bearing
upon the issues was afforded to all parties.
During the hearing, upon motion of the Board's counsel, the
Trial Examiner dismissed the allegations in the complaint that the
respondents had refused to bargain collectively with the Union and
that the respondents had discriminated with regard to the hire and
tenure of employment of Sophie Nally and, Anna Cotter. During
the course of the hearing, the Trial Examiner made other rulings
'The persons so named are as follows : Doliie Armstrong , Anna Cotter, LaVere Imray,
Harold Imray, Anna Jesseman , Charles A. Lalla, Dorothy Lewis, Meretta Miller, May
Mutza, Sophie Nally, John Schofield , Harold R. Siebold, Philip Somerlott, Edith Stein,
and It. E. Tennery.
SIERRA MADRE -LAMANDA CITRUS ASSOCIATION 145
on motions and objections to the admission of evidence. The Board
has reviewed these rulings and finds that no prejudicial errors were
committed. The rulings are hereby affirmed. The Trial Examiner
reserved decision on certain other rulings for his Intermediate
Report.
After the close of the hearing the respondents filed.a brief with the
Trial Examiner. On December 29, 1938, the Trial Examiner issued
his Intermediate Report, copies of which were duly served on the
respondents and the Union, finding that the respondents had engaged
in, and-were, engaging in unfair labor practices affecting commerce
within the meaning of Section 8 (1) and (3) and Section 2 (6) and
(7) of the Act. He recommended that the respondents cease and
desist from engaging in such unfair labor practices and take certain
affirmative action to remedy the situation brought about by the un-
fair labor practices found.
The Trial Examiner in his Intermediate Report also made rulings
on motions and objections to the admission of evidence upon which
he had reserved decision during the hearing. Among these rulings
was one denying certain motions made by the respondents at the
commencement of the hearing to dismiss the proceedings for the same
reasons given as special defenses in the answer. We affirm this
ruling. The Board finds no merit in the respondents' contentions
that this proceeding is barred by laches,2 and "that another action
is pending between the parties hereto involving some of the issues
involved. in these proceedings ,and said action has not been determined
by the",Board." 3 The reasons for affirming the Trial Examiner's
ruling, denying the respondents' motion to dismiss upon the grounds
that all their employees are "agricultural laborers" and that they
are not engaged in commerce within the meaning of the Act, are
set forth below.
At the commencement of the hearing, the parties stipulated that
certain exhibits, concerning the jurisdiction of the Board in this
case, which had been introduced in evidence by the Board in another
case entitled Matter of North Whittier Heights Citrus Association
and Citrus Packing House Workers Union, Local 41091,' be con-
sidered a part of the record in the instant case, except that the re-
spondents reserved the right to object to the admission in evidence
of each exhibit as it was introduced by the Board if they believed
2 See Matter of Colorado Milling and Elevator Company and Denver Trades and Labor
Assembly, 11 N. L. R. B. 20.
8 The respondents are referring to a case entitled Matter of Sierra Madre -Lamanda
Citrus Association and Citrus Packing House Workers Union Local 20766, Case No R-309.
The record in said case discloses that on June 15, 1938, the Board granted a request made
by the Union to withdraw its petition for an investigation and certification of representa-
tives and ordered the case closed.
410 N L R B 1269, enf'd in North Whittier Heights Citrus Association v W. L. R. B.,
109 F. ( 2d) 76 ( C. C. A. 9).
146 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that the exhibit was immaterial or incompetent. Thereafter, the
Board introduced in evidence Board Exhibit Nos. 8 to 25, inclusive,
and 27 and 28, in the North Whittier case, which were marked Board
Exhibit Nos. 3A to S in the instant case. The respondents objected
to the admission in evidence of each of the above exhibits on the
ground that they were incompetent and immaterial. The Trial
Examiner reserved ruling upon these objections. In his Intermediate
Report he received all these exhibits in evidence. In accord with
our decision in the North Whittier case, Board Exhibit Nos. 3E to
H, both inclusive, and 3-0 to S, both inclusive, will be admitted; 5
and Board Exhibits Nos. 3A to D, both inclusive, and 31 to N, both
inclusive, will be excluded." During the hearing the parties stipu-
lated that the testimony of certain witnesses, concerning the juris-
diction of the Board in the instant case, which was offered in Matter,
o of Sierra Madre-Lamanda Citrus Association and Citrus Packing
House Workers Union Local 20766,7 herein referred to as Case No.
R-309, together with all objections thereto, be considered a part of
the record in the present case. In his Intermediate Report the Trial
Examiner received said testimony in evidence in the instant case.
We have reviewed the rulings of the Trial Examiner and find that
no prejudicial errors were committed. The rulings are hereby
affirmed except as noted above.
On February 6, 1939, the respondents filed exceptions to the Inter-
mediate Report and requested permission to argue orally before
the Board. Subsequently the respondents filed a brief with the Board
in support of their exceptions. Pursuant to notice served on the
respondents and the Union, oral argument was had before the Board
in Washington, D. C., on October 3, 1939. The respondents were
represented by counsel and participated in the oral argument.
The Board has considered the exceptions and the briefs, and, in so
far as the exceptions are inconsistent with the findings, conclusions,
and order set forth below, finds them to be without merit.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENTS
Respondent Sierra is a corporation organized under the Cooperative
Marketing Association laws of California, and has its principal office
and place of business in Pasadena, California. Two hundred and
g These correspond to Board Exhibit Nos. 12 to 16, both inclusive, and 27 and 28, in
the North Whittier case.
6 These correspond to Board Exhibit Nos. 8 to 11, both inclusive, and 17 to 22, both
inclusive, in the North Whittier case.
° Case No. R-309.
SIERRA MADRE-LAMANDA CITRUS ASSOCIATION 147
sixteen citrus fruit growers comprise the membership of respondent
Sierra. They own, among them, a total of 1,943 acres of orchard land,
of which about 61 acres are grapefruit, and the remainder is about
equally divided between oranges and lemons. Respondent Sierra is
.engaged 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 ap-
plying for membership in respondent Sierra, each grower becomes
bound by its bylaws, rules, and regulations.
The activities of respondent Sierra 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. The orange department works on
navel oranges from late December or early January to sometime in
April, and on Valencia oranges from May to about October. It is
practically shut down from October until late December or early Janu-
ary. The grapefruit season corresponds roughly to that for Valencia
oranges; and lemons are picked and packed to some extent during the
entire year, but in the lemon department the period from June to
November shows the least activity.
Respondent Sierra, together with other and similar local associa-
tions, is affiliated with a district exchange, the Semi-Tropic Fruit
Exchange. There are 25 similar district exchanges throughout Cali-
fornia, each being a corporation having as its members a representa-
tive selected by each of the local associations. Respondent Sierra has
a written agreement with its district exchange providing that all the
fruit controlled by respondent Sierra 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
organized under the laws of California and each district exchange is
entitled to one representative on its board of representatives. The
agreement between the California Fruit Growers Exchange, and its
district exchanges establishes the former as the general agent of each
district exchange in all matters concerning `the marketing of citrus
fruits.
In accordance with these agreements all the fruit controlled by
respondent Sierra is marketed through its district exchange and the
California Fruit Growers Exchange. Each shipment of fruit by rail
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
8 Oranges and lemons are packed in separate packing houses.
148 ' DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the California Exchange. During the 12-month period ending Octo-
ber 31, 1937, the California Fruit Growers Exchange and its affiliated
associations produced nearly 24 million boxes of citrus fruits, repre-
senting 75 per cent of the oranges, 92 per cent of the lemons, and 78
per cent of the grapefruit produced in California. For the year
ending October 31, 1938, it was estimated that members of local asso-
ciations affiliated with the California Fruit Growers Exchange would
produce approximately 77 per cent of the oranges, 92 per cent of the
lemons, and 74 per cent of the grapefruit produced, in,California and
Arizona.9
It was estimated that during the two citrus seasons, 1936-37 and
1937-38, the destination of all the fruit produced in California would
be as follows :
Oranges Per cent
Shipped in interstate commerce ------------------------------ 70
Shipped in intrastate commerce----------------------------- 15
Otherwise disposed of---------------------------------------- 15
Lemons Per cent
Shipped in interstate commerce------------------------------- 72
Shipped in intrastate commerce--------------- ---------------- 13
Otherwise disposed of--------------------------------------- 15
Grapefruit Per cent
Shipped in interstate commerce------------------------------- 41
Shipped in intrastate commerce or
Otherwise disposed of
The fruit listed as "otherwise disposed of" is converted into various
manufactured products, donated to charity, or otherwise eliminated
from the market.
The California Fruit Growers Exchange has built up a sales organ-
ization 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.
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 . . ."
9 About 75 per cent of Arizona citrus acreage is also affiliated with the California Fruit
Growers Exchange in the marketing of its fruit.
SIERRA MADRE-LAMANDA CITRUS ASSOCIATION 149
Figures as to respondent Sierra's own pack covering the past few
seasons are as follows :
Past 6-year
1936-37 season (actual 1937-38 season (esti- period
figures) mated figures) (estimated
figures)
Total pro- Shipped in Total Pro - Shipped in Shipped in
duction in interstate duction m Interstate interstate
boxes commerce boxes commerce commerce
Oranges-------------------------- --------- 65,026
Per cent
80 113 , 667
Per cent
80
Per cent
79
Lemons __ ________________________________ 110,083 75 119,158 75 65
Grapefruit_________________________________ 28,912 41 27 , 682 40 45
The Betz Packing Company, an individually owned business en-
gaged principally in the business of supplying labor to packing asso-
ciations, operates throughout the State of California and has its
principal offices at Monrovia, California. On June 11, 1937, respond-
ent Betz and respondent Sierra entered into a contract in which re-
spondent Betz agreed to accept oranges at the receiving end of
respondent Sierra's packing house "and perform all usual operations
within and through the house including lidding and delivering to
cold storage but not including separating or other work made neces-
sary on account of frost damage." The contract also provided that
all work was to be under the supervision of respondent Sierra and
to its "satisfaction at all times." Respondent Betz was to receive a
determined price payable weekly for each box of oranges packed.
This contract expired when the Valencia orange season ended in the
latter part of August 1937.
On October 13, 1937, respondent Betz and respondent Sierra en-
tered into two contracts, one covering the lemon department and the
other covering the orange department, in which respondent Betz, "as
an independent contractor and not as" the respondent Sierra's agent,
agreed to handle the packing of all oranges, lemons, and grapefruit
delivered to respondent Sierra's packing houses during the 1937-38
navel orange season and the 1937-38 lemon and grapefruit season.
The contracts provided that respondent Betz was to employ and have
full supervision and control of all labor involved. Respondent Betz
was to receive a determined price for each box of oranges it packed,
but as to the lemons and grapefruit respondent Sierra was to pay
respondent Betz the actual cost of the labor plus determined handling
charges.
Respondent Sierra contends that between October 13, 1937, and the
time the contracts expired,10 respondent Betz had complete control of
IU The contracts expired at the end of the orange , grapefruit , and lemon seasons in 1938.
The record does not disclose the exact dates.
283034-41-vol. 23-11
150 DECISIONS OF NATIONAL LABOR' RELATIONS BOARD
employment in both departments. This raises a question as to
whether either or both the respondents were employers of the em=
•ployees involved while the contracts were in force. Section 2 (2) of
the Act -provides that the term "employer" as used in the Act ".. .
includes any person acting in the interest of an employer, directly or
indirectly . . ." It is clear that during the period the October con-
tracts were in force respondent Betz was the employer within Section
2 (2) of the employees involved in this case. They were listed on
respondent Betz's pay roll and were paid and supervised by respond-
ent Betz. Since respondent Sierra owned, managed, and otherwise
controlled the packing houses in which the employees worked and
supplied the money with which they were paid, and since respondent
Sierra retained control over employment to the extent that persons
respondent Sierra objected to were not hired by respondent Betz,
and, through its superintendent, supervised and inspected the work
performed by the employees and reported mistakes to respondent
Betz, we find that for the duration of the October contracts respond-
ent Sierra was also the employer within Section 2 (2) of the employ-
ees involved in this case."
II. THE EMPLOYEES INVOLVED
The general categories of workers used by the respondent Sierra
consist of pickers, fumigators, sprayers, dusters, floor laborers, grad-
ers, and packers.
The pickers pick the fruit from the trees in the orchards of
respondent Sierra's members and place it in field boxes. After the
fruit is picked and put into field boxes, the grower himself generally
hauls the fruit to respondent Sierra's packing houses or plant, but
respondent Sierra furnishes the trucking facilities and charges its
members for their use. The fumigators perform the work of covering
the trees with tents and running a gas vapor under the tent; the
sprayers spray the trees with various insecticides ; and the dusters
dust the trees with prepared chemical materials.
11 See Matter of William Randolph Hearst, etc . and American Newspaper Guild, Seattle
Chapter, 2 N. L. R. B. 530, enf'd as mod, N. L. R. B. v. Hearst at at, 102 F . (2d) 658
(C. C. A. 9) ; Matter of C. A. Lund Company and Novelty Workers Union, Local 1866, 6
N. L. R. B. 423, enf'd as mod., N. L. R. B v. Lund at at , 103 F. (2d) 815 (C. C. A. 8) ;
Matter of Pennsylvania Greyhound Lines, Inc, Greyhound Management Company, Corpo-
rations , and Local Division No. 1063 of the Amalgamated Association of Street, Electric
Railway and Motor Coach Employees of America , 1 N L R. B 1, enf 'd N. L. R. B. v.
Pennsylvania Greyhound Lines, Inc ., et al., 303 U. S 272 , rev'g 91 F. (2d) 178 (C. C. A. 3).
The respondents contend in their brief that under California law as established by local
court decisions respondent Betz occupied the status of an independent contractor after the
execution of the October contracts . It is not necessary to construe the State law because
whether or not respondent Betz was an independent contractor under the October contracts
within the meaning of California law, both respondents are employers within the meaning
of Section 2 (2) of the Act.
SIERRA MADRE-LAMANDA CITRUS ASSOCIATION 151
When the fruit arrives at the packing houses it is handled by the
floor laborers. They receive the field boxes from 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
handling of the fruit in the packing houses, 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.
The oranges unloaded on the receiving platform at the packing
plant are first moved into storage rooms from where they are placed
onto a conveyor belt and dumped into a presorter where all the
leaves and trash 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 rollers where the drops of water are taken off and
into the driers; then into the waxer where clear wax is applied; then
to the presizer where the fruit too small to pack is eliminated; then
to the graders for grading into first, second, standard, and culled
grades; and then to the bins where it is packed. The packers wrap
the fruit and place it in boxes which are put on the conveyor belts
and carried to the precooling room where the fruit is kept an average
of 10 days before being moved to 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 mech-
anized as the corresponding operations of the orange department, the
lemons and grapefruit being dumped into the soaking tank by hand.
During the subsequent steps in the process through the lemon-packing
department the fruit is automatically moved from the soaking tank
to the brushes; then to the disinfectant tank; then to the waxer; and
then to 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 conveyor belts
and are at this time carried into an air-conditioned storage room. 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, and
finally packed and stacked on the packing floor. After being properly
inspected it is moved into market.
On an average day when navel and Valencia oranges and lemons
and grapefruit are being handled through the packing house an
average crew consists of 47 floor helpers, 29 graders, 43 packers, and
135 pickers. During the season in which fumigating or spraying is
152 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
done there is at least one crew for each type of work, making a total
of 12 persons doing this work.
All the individuals named in the complaint were employed as
packers, graders, or general packing-house laborers, and their duties
were performed inside the packing plant or on the loading platforms.
The respondents contend that all the employees are "agricultural
laborers." Section 2 (3) of the Act excludes "agricultural laborer"
from the definition of the term "employee," and consequently from the
jurisdiction granted to the Board. We are, in the present case, not
concerned with all the labor employed by the respondents. We are
concerned only with those who work in respondent Sierra's packing
houses.
An examination of the above-described operations and functions
performed by the respondents and of the duties of the employees here
involved clearly demonstrates that they are not agricultural laborers
within the meaning of Section 2 (3). As stated above, respondent
Sierra is engaged at its packing plant in the business of receiving,
handling, washing, grading, assembling, packing, and shipping citrus
fruit. These services are performed in a large plant owned by
respondent Sierra, which is equipped with specialized machinery for
the mass-production handling and processing of citrus fruit. The
duties of the packing-house employees, like those of workers in other
industrial plants, are coordinated with the operation of the machines
which automatically handle and process the fruit.
The respondents' business and the operations of the packing-house
employees look not toward the production of fruit but toward its
marketing. For the respondents to claim upon this record that the
packing-house employees are agricultural laborers, is to ignore the
fundamental nature of their business. The work of the respond-
ents carried on by the packing-house employees is not concerned with
farming operations. The production of the fruit is the business of
the grower who delivers it to respondent Sierra. Thereafter the
activities of the respondents with relation to the fruit are part of
the wholly separate business of marketing.
The respondents argue that their activities are in reality the activ-
ities of the growers themselves, that they are merely the instru-
mentality which the growers employ to process and market their fruit
as an incident of their general farming operations, and that hence the
packing-house employees are agricultural laborers since they are
actually employed by the growers. The argument, however, is with-
out merit. In the first place, the respondents are engaged in opera-
tions which are not part of the fruit growers' ordinary activities.
Secondly, the respondents are no mere instrumentality of the affiliated
growers. They are a wholly separate, legal entity having fixed con-
SIERRA MADRE-LAMANDA CITRUS ASSOCIATION - 153
tractual obligations which the growers cannot at will alter. Under
the terms of the membership in the respondent Sierra and the agree-
ments of the respondent Sierra with the California Fruit Growers
Exchange and the district exchange, the growers completely relin-
quish the preparation and marketing of their fruit to respondent
Sierra and the exchanges. They agree that all the fruit required by
respondent Sierra shall be marketed through it. The growers do not
even retain the right to determine when the fruit shall be picked.
While the identity of the fruit passing through the plant is not lost
until it is graded and recorded, the growers have no control over the
fruit after it is delivered to the plant. They have nothing to do. with
the day-by-day management of the plant, and have no control what-
ever over the employees here involved, who are hired, directed in their
work, and discharged solely by the respondents.
We find that the individuals employed in respondent Sierra's
packing houses are not employed as agricultural laborers.12
III. THE ORGANIZATION INVOLVED
Citrus Packing House Workers' Union, Local 20766, is a labor
organization admitting to its membership production employees
working in respondent Sierra's packing houses.
IV. THE UNFAIR LABOR PRACTICES
A. Interference, restraint, and coercion
The complaint alleges, and the answer denies, that on and after
May 20, 1937, the respondents interfered with, restrained, and co-
erced their employees in the exercise of rights guaranteed in Section
7 of the Act.
In May 1937 the Union commenced organizational activities at re-
spondent Sierra's packing houses. On June 3, 1937, after learning
that the Union was organizing respondent Sierra's employees, its
general manager, Frank Webber, assembled and spoke at length to
the employees in his office. Among other things, Webber reviewed
the history of the respondent Sierra, described the respondent Sierra's
efforts to provide the employees with decent working conditions,
praised the employees' loyalty to the respondent Sierra, explained a
recent discharge, described the labor movement in general and, al-
though stating that respondent Sierra was neither for nor against
'2North Whittier Heights Citrus Association v. N. L R. B., 109 F. (2d) 76 (C. C. A. 9),
enf'g Matter of North Whittier Heights Citrus Association and Citrus Packing House Work-
ers Union, Local No. 21091, 10 N. L. R. B. 1269; cf. Matter of American Fruit Growers,
Inc et al, and Fruit & Vegetable Workers Sub Local of No 191, UCAPAWA, C. 1. 0., 10 N. L.
R. B. 316; Matter of George G. Averill, et al. and Fresh Fruit & Vegetable Workers Union,
Local 78, C. I. 0., 13 N. L. R. B 411 ; Matter of Grower-Shipper Vegetable Association of
Central California, et al. and Fruit and Vegetable Workers' Union of California, No. 18211,
15 N. L. R. B. 322.
154 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
labor unions, warned the employees that if respondent Sierra was
forced to pay higher wages than other packing houses, the resulting
increase in cost of production would cause the growers to take their
fruit elsewhere to be packed and, as a consequence, the employees
would lose their jobs. During his speech Webber also told the em-
ployees that he did not know "how far" they had "gone nor what"
their "ideas" were about labor organizations, but that the employees
in two other packing houses had "come to the conclusion of having a
committee to talk to their managers." Webber described such
"groups" as being "along the line" that a "cooperative is handled." 13
At the conclusion of Webber's speech the meeting was opened for
general discussion.14 During this discussion a non-union employee
suggested that the employees organize an unaffiliated union; where-
upon Webber suggested that another meeting be held by the em-
ployees within the next few days to consider the matter. Philip
Somerlott, an employee who was president of the Union, testified
that he was asked during the discussion by Webber how much the
initiation fee in the Union was and when he told Webber.it was $3,
Webber remarked "that is quite a lot of money." Somerlott also
testified that Webber stated "he thought that if we [the employees]
formed a little group there we could be a big happy family" and
"there was no need to joining any outside labor organization," and
that Webber finally stated, "Phil, you want to think this over. Every-
body think this over and I am going to see the Board of Directors,
see what we can do about forming a little group among ourselves
here, and until that time I don't want you [Somerlott] to collect any
more money from anybody or to sign up any more members."
Somerlott testified further that the next day Webber approached him
in the packing house and stated, "About this Union, the growers
absolutely will not stand for a union. It means my job .. .
as well as the employees', because they have got a lot of money
in this packing house,- but they will abandon this whole thing
... they will withdraw their fruit and put it in other houses,
if this Union goes through here." Somerlott claims that Webber
told him that Gordon Brooks, a supervisor in the fluoroscope and
precooler departments, was going to outline a plan for the organiza-
tion of an unaffiliated union at the next meeting of the employees.
At the hearing Webber admitted having a conversation with Somer-
lott in which he told Somerlott that he hoped the employees would
"look into all sides of this matter," but denied that he made the
statements testified to by Somerlott. In view of Webber's other con-
1a These quotations are taken from Respondent Exhibit No . 3, which is a transcript of
notes taken by E. M. Gammell, respondent Sierra's bookkeeper and office manager, during
the speech.
u Gammell did not take notes on the general discussion.
SIERRA MADRE -LAMANDA CITRUS ASSOCIATION 155
duct and the nature of his conversation with Somerlott , we find that
Webber in substance made the statements attributed to him by
Somerlott.
The plan to organize an unaffiliated union was called to the atten-
tion of Barney Dreyfus, an organizer for the Union. Dreyfus filed
charges with the Regional Director , then went to Webber 's office and
advised him that if the second meeting was held and a labor organiza-
tion evolved as a result of the meeting, respondent Sierra would be
violating the Act. After some discussion , Webber agreed that the
second meeting should not be held and the employees were so
informed by Dreyfus in Webber's presence.
Later the same day Webber introduced Dreyfus to Melville Morgan,
the president of respondent Sierra. Dreyf us testified that Morgan
greeted him by saying , "Hell, I don't see any horns or guns on you.
You are an American ." He also testified that later during their
conversation Morgan stated that "he didn 't believe in unions, that he
was perfectly capable of running his own plant , and so far as he
could he would see to it there never was any tie-up with the Union."
Morgan testified that he greeted Dreyfus by saying, "Well , you are
not the sort of a fellow that I expected to meet. I had an idea that
these labor organizers were large, tough -looking hombres and some-
times had horns . . ." and that he later interrogated Dreyfus con-
cerning his union activities , asking among other things how much
money he was receiving and who was paying him to organize the
respondent Sierra's employees . Morgan denied , however, that he
told Dreyfus that he was opposed to the Union . In view of the
statements Morgan admittedly made to Dreyfus, and the fact that
the Trial Examiner , who had an opportunity to observe the demeanor
of the witnesses , credited the testimony of Dreyfus , and in the light
of the 'entire record which establishes that respondent Sierra, of
which Morgan was president , was opposed to the organization of its
employees by the Union , we find that Morgan, in substance, made
the statements attributed to him by Dreyfus.
As a result of Webber 's agreeing to cancel the second meeting,
Dreyfus withdrew the charges he had filed with the Regional Direc-
tor and on June 18, 1937 , the Regional Director closed the case.
Whether or not this settlement would induce us to dismiss a com-
plaint predicated only on employer conduct occurring prior to it,
we consider this conduct in determining whether respondent Sierra
engaged in unfair labor practices subsequent to the settlement. As
we find below , the respondents did engage in unfair labor practices
subsequent to June 18 , 1937 . Accordingly , we find that giving effect
to the settlement would not effectuate the policies of the Act and we
156 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
therefore base our findings and order on the events occurring before
and after June 18.15
About July 15, 1937, the respondent Sierra posted the following
notice on its bulletin board :
That Section 2(3) of the Wagner Act exempting "Agricultural
Labor" was intended by Congress to exempt all labor used in
the growing, harvest, and preparing for market of fresh fruit
and vegetables in their natural state and thereby exempts work-
ers handling citrus fruit in packing house operations. .
Immediate steps will be taken to obtain from the National
Labor Relations Board or a court of final jurisdiction, a ruling
exempting such labor from the act's provisions.
Employers in the citrus industry, and in other cooperating
agricultural groups, intend to conduct their business and main-
tain the relationship between employer and employee free from
unlawful acts, demands or interference or misleading representa-
tions of labor organizers or outside agitators.
Membership in any union is not necessary in order to work in
the citrus industry either in growing, harvesting or packing
citrus products and employers insist upon the right to meet and
bargain with their workers, collectively or individually, whether
these employers are union members or not. The industry strongly
condemns any policy of intimidation or coercion and pledges
its resources to protect all citrus workers in their right to work
and will insist that all law enforcing agencies furnish adequate
and impartial protection to persons and property.
Congress has recognized the necessity of dealing with agricul-
tural labor on a different basis than industrial labor. Because
of this and the perishable nature of agricultural products and the
many uncontrollable factors in producing and marketing them
which cause ruinous results to workers, growers and the consumer
alike, the citrus industry while not opposed to collective bar-
gaining, must be kept free from unjustified strikes and the
imposition of "hiring halls" and the "closed shop."
This industry is opposed to the collection of funds from
workers with no adequate explanation of the intended use or
proper accounting and it is opposed to dealing with irresponsible
organizations purporting to represent labor. It recommends ap-
propriate steps be taken to bring about responsibility on the part
of labor unions both as to their method of dealing and accounting
of funds received from workers.
16 See Matter of Hope Webbing Company and Textile Workers Organizing Committee of
the C. 1. O , Local No. 14 N L R B. 55; Matter of Allsteel Products Manufacturing
Company (Inc) and International Association of Machinists , Local 1508, 16 N. L. R. B.,
72; Matter of The Van Iderstsne Company and District #50 of the United Mine Work-
ers of America, 17 N. L. R B. 771.
SIERRA MADRE-LAMANDA CITRUS ASSOCIATION 157
The manifest purpose of this notice, as its language shows, was to
discourage membership in the Union.
The record shows that after the formation of the Union, supervisory
employees of respondent Sierra made intimidatory anti-union
statements to employees in their respective departments. Raymond
Sable, an employee, testified that during June and thereafter, Donald
Dewer, foreman of the lemon department, interrogated Sable regard-
ing the Union, asked Sable why he had joined the Union, and stated
that anyone who joined the Union was a "radical or a Red." At the
hearing Dewer denied that he had told any employee that he was
opposed to "unions" and claimed that he first learned about the Union
at the meeting on June 3 in Webber's office, and that he learned
through "hearsay" that some of the employees were members; but
that he could not remember who communicated this "hearsay" in-
formation to him. Later in Dewer's testimony he claimed that he had
not talked "to anybody about the Union." Dewer's testimony is
evasive and unconvincing. Upon the entire record, we find that
Dewer, in substance, made the statements attributed to him by Sable.
Harold Imray, an employee and one of the original organizers of
the Union, testified that Gordon Brooks, a supervisor in the fluoro-
scope and precooler departments, stated to him that persons - who
joined the Union were "crazy" and "a bunch of damn fools" because
the Union "wouldn't work." In the latter part of June, according to
Imray, Brooks told him that if he and 10 of the other union members,
who had been employed by respondent Sierra for "quite a while,"
would relinquish their membership in the Union, Webber would place
them on monthly salary and they "wouldn't lose any time." 16 At the
hearing Brooks admitted discussing the Union with Imray, but
claimed that he could not remember what was said, that they were
just "kidding back and forth," and that there was "no serious con-
versation." Brooks' testimony, like Dewer's, is evasive. The Trial
Examiner, who had an opportunity to observe the demeanor of the
witnesses, credited Imray's testimony. We find that Brooks, in sub-
stance, made the statements attributed to him by Imray.
Although Dewer and Brooks did not have the power to hire and
discharge employees, they were considered by the other employees
to be supervisory employees, they issued orders to employees, and they
filed reports concerning the employees' work. We find that Dewer
and Brooks were supervisory employees and that respondent Sierra
is responsible for their above-described statements"
10 Webber did not testify concerning this matter.
17 See Matter of American Manufacturing Company; Company Union of the American
Manufacturing Company; the Collective Bargaining Committee of the Brooklyn Plant of
the American Manufacturing Company and Textile Workers' Organizing Committee,
C. 1. O , 5 N. L. R. B. 443, enf 'd N. L. R B. v. American Manufacturing Company et at.,
106 F. (2d) 61 (C. C. A. 2) ; Matter of The Serrick Corporation and International Union,
158 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
At the hearing Webber claimed that after Dreyfus left his office he
told Merwin Brown, superintendent of respondent Sierra, to instruct
the other supervisory employees not to discuss union activities with
the employees, but there is no showing in the record that Brown car-
ried out Webber's instructions or that respondent Sierra took any
vigorous remedial measures, clearly brought to the attention of the
employees, to remove the effect of the coercion inherent in the state-
ments of the management hereinabove set forth."'
We find that respondent Sierra, by its threats and other acts
hereinabove set forth, including assembling the employees on June 3,
1937, Webber's statements at the meeting, Webber's statements to
Somerlott the next day, Morgan's statements to Dreyfus, the posted
notice, and the statements of Foreman Dewer and Brooks, has inter-
fered with, restrained, and coerced its employees in the exercise of
the right to self-organization, to form, join, or assist labor organi-
zations, 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 guaranteed
in Section 7 of the Act.
B. Discrimination in regard to hire and tenure of employment
The complaint as amended at the hearing alleges that the respond-
ents discriminated in regard to the hire and tenure of employment
of 13 named employees, herein called charging employees, because
of their union affiliation and organizational activity, thereby dis-
couraging membership in the Union.19 For the purpose of con-
United Automobile Workers of America, Local No. 459, enf'd International Association of
Machinists, Tool and Die Makers Lodge No. 35, etc. et al. V. N. L. R B, decided November
20, 1939 (C A., D. C.).
'8 See Matter of West Oregon Lumber Company and Lumber and Sawmill Workers Local
Union No. 3, International Woodworkers of America, 20 N. L. R B. 1.
19 The following is a table showing the names of the 13 charging employees , their posi-
tions in the Union , the department in which they were last regularly employed, and the
number of years they were employed by respondent Sierra.
Number
Department in which of years
Position in Union the charging em- employ-ployees were last ed by
regularly employed respond-
ent Sierra
Philip Somerlott__________ President ___________________________ Lemon---------------- 11
Dolly Armstrong--------- Vice President______________________ Orange________________ 10
J. W Schofield ----------- Financial Secretary _________________ Lemon---------------- 8
Edith Stein _______________ Treasurer --------------------------- Lemon---------------- 2
Harold Siebold ____________ Recording Secretary----------------- Lemon---------------- 1
Florence Tennery_________ Trustee _____________________________ Lemon ________________ 14
Charles Lalla_____________ Citrus Counsel Member ------------ Machinist ------------- 15
May Mutza______________ Charter Member____________________ Lemon ---------------- 14
Harold Imray_ Charter Member____________________ Lemon________________ 9
LaVere Imray Charter Member____________________ Lemon ---------------- 9
Meretta Miller ----------- Charter Member____________________ Orange ---------------- 15
Dorothy Lewis ----------- Member--------------------------- Lemon ---------------- 9
Anna Jesseman ___________ Member____________ ________________ Orange ---------------- 8
SIERRA MADRE -LAMANDA CITRUS ASSOCIATION 159
venience, the cases of Philip Somerlott and Charles Lalla, who were
discharged by respondent Sierra on August 16 and October 7,
1937, respectively, will be considered first; the contracts between the
respondents will be considered next; the cases of the eight charging
employees who were not reinstated to the lemon department upon
and after its resumption of operations on October 14, 1937, will
be considered next; and the cases of the three charging employees
who were not reinstated to the orange department upon and after its
reopening on January 10, 1938, will be considered last.20
1. The discharge of Philip Somerlott and Charles Lalla
Philip Somerlott had been employed by respondent Sierra for
about 11 years prior to his discharge on August 16, 1937. The Trial
Examiner found that this discharge was discriminatory and the
respondents take exception.
Early in May 1937 Somerlott ascertained from Dreyfus what pro-
cedure was necessary to form the Union; and thereafter explained
the procedure to Charles Lalla, John Schofield, Harold Siebold, and
Harold Imray, who, with Somerlott, became the original organizers
of the Union. After the Union received its charter, Somerlott was
elected its first president. As stated above in Section IV A, on the
20 Of the 11 persons in respect to whom the complaint alleges discrimination subsequent
to the closing and reopening of the lemon or orange houses, 3-Dorothy Lewis, LaVere
Imray, and Edith Stein-left the lemon house prior to its shut -down in 1937 to obtain
more remunerative seasonal work elsewhere . Lewis and LaVere Imray left Pasadena on
July 20. Stein left Pasadena on August 11 and returned in September , after the lemon
department shut down and before it reopened Lewis and LaVere Imray returned to Pasa-
dena in December 1937, after the lemon department had resumed operations Harold
Imray, one of the eight remaining persons, although staying at Pasadena until his depart-
ment, the lemon house, shut down, Lett Pasadena thereafter to secure seasonal employment
elsewhere , and did not return to Pasadena until December 1937, after the reopening of the
lemon department.
Before leaving Pasadena , Lewis , LaVere Imray , and Stein requested Superintendent
Brown 's permission to do so and sought Brown 's promise that they would obtain rein-
statement upon their return . While the testimony is in conflict as to Brown 's precise
reply, it appears that he gave them some assurances , indicating , however, that he could
make no promise of reinstatement , since he could not foretell whether the fruit to be
packed during the following season would be affected by the freeze which had occurred In
January 1937 . Subsequent events showed that the fruit had not been affected . LaVere
Imray testified , without contradiction , that the lemon department foreman advised the
employees customarily that if they desired, they could work elsewhere during "slack" sea-
sons. Stein had gone "north" to work during slack seasons at Pasadena in 1935 and 1936
and had been reinstated upon her return . In 1937 Stein was accompanied on her trip
"north" by Elizabeth Horn, a fellow lemon-house employee , and Horn was reinstated when
the lemon department reopened on October 14, 1937.
Employees of respondent Sierra were laid off customarily at the end of the season, sub-
ject to recall during the following season.
We find that the 11 persons , who were allegedly denied reinstatement discriminatorily,
remained employees within Section 2 (3) of the Act . North Whittier Heights Citrus Asso-
ciation v . N. L. It. B., 109 F. ( 2d) 76 ( C. C. A. 9 ). Whether or not they retained employ-
ment status within Section 2 (3), discrimination in regard to their hire would constitute
an infringement of Section 8 (1) and ( 3) remediable under Section 10. Matter of Waum-
bee Mills, Inc. and United Textile Workers of America, 15 N. L. R B. 37.
160 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
day after the meeting in Webber's office on June 3, 1937, Webber ap-
proached Somerlott and warned him that the growers would not
"stand for a union." In spite of this warning, however, Somerlott
continued his activity in behalf of the Union.
At the hearing Superintendent Brown described Somerlott as being
"a superb worker" and "a very fine worker" prior to the formation of
the Union, but claimed that after the Union was organized Somer-
lott's "attitude changed completely." Brown gave two incidents to
prove the "change in attitude." In May, according to Brown, Somer-
lott often took 15 minutes for a rest period instead of the customary
10 minutes. There is nothing in the record to indicate that respond-
ent Sierra was strict in limiting the rest period to 10 minutes. That
respondent Sierra.did not view the matter seriously is established by
Brown's admission that he never called this alleged tardiness to
Somerlott's attention. On one occasion in May or June Somerlott,
contrary to a company rule, picked two or three lemons off the floor
and put them in a box with other lemons. Brown reminded Somer-
lott of the company rule whereupon Somerlott removed the con-
demned lemons. This was an isolated incident and hardly corrobo-
rates Brown's vague implication that subsequent to the formation of
the Union, Somerlott became indifferent to his work. Furthermore,
Brown admitted at the hearing that he "certainly wouldn't" dis-
charge "a man for a thing like that."
Brown testified that in the afternoon of July 6 he smelled liquor
on Somerlott's breath. Brown did not assert, however, that Somer-
lott was intoxicated on this occasion or that he was not performing
his duties in a satisfactory manner. Moreover, Brown did not rep-
rimand him. The record shows also that Somerlott had taken one or
two "tall" glasses of wine with his lunch, customarily, over a period
of years, and that the respondent had taken no action against him
for having liquor on his breath.
Sometime in July Brown began to exercise close surveillance over
Somerlott and to take written notes thereon. Brown had never taken
written notes before of an employee's conduct. On the witness stand
Brown claimed that he resorted to this device because he felt that if
Somerlott "kept on flaunting [sic]" and "disregarding the authority
of the place he would have to be fired"; and that since Somerlott was
instrumental in forming the Union he "didn't want to take any
chances of firing him [Somerlott] when he [Somerlott] could say it
was for union activities." The only instances relied upon to show
that Somerlott "flaunted" the respondents' authority before Brown
began to preserve a written record of Somerlott's behavior are the
three instances described above. They afford no substance to the
claims that Somerlott "flaunted" or "disregarded" the authority of
management.
SIERRA MADRE-LAMANDA CITRUS ASSOCIATION 161
Respondent Sierra relies on" Somerlott's alleged behavior on July
23. The usual quitting time was 3: 30 p. m. and Somerlott checked
out at that time on July 23. Brooks and Somerlott gave conflicting
versions of the events leading to Somerlott's leaving for home on
July 23.21 We credit Somerlott's testimony and find that he left
under the following circumstances : After he had punched his time
card, Brooks informed him that Brooks had planned to work the
crew until 4: 30 p. m. Somerlott stated thereupon that he had not
known of these plans and offered to return to work. Brooks replied
in substance that he had adequate help and Somerlott should "Go
ahead. You have punched out now and you won't have to change
your card."
Brown claims that he smelled liquor on Somerlott's breath on July
28 22 and warned Somerlott that if he continued to drink he would
be discharged and that Somerlott replied he did not "give a damn"
whether he was. Somerlott, however, denies this incident and upon
the entire record we do not believe that the alleged warning and
reply occurred.
Respondent Sierra claims that Somerlott was intoxicated on
August 3. That day about 2: 30 or 3 p. m., Brown, Earl Shup,
Somerlott's immediate superior, and Foreman Dewer on the one
hand and Somerlott on the other, engaged in a controversy the
details of which need not concern us here. Brown claims that
Somerlott spoke "thickly" and was "almost drunk" and that he
warned Somerlott on this occasion that if he continued to drink he
would be discharged. Dewer claims that Somerlott was "glassy
eyed" and talked with a "thick tongue" and appeared to be intoxi-
cated; and Shup claims that Somerlott's eyes were "bleary" and "he
didn't talk coherently." Against these colored epithets we have
the denial of Somerlott that he was drunk or half-drunk on the
respondents' premises on that day or any other day. We are not
convinced that Somerlott was drunk on August 3. Aside from the
21 Brooks testified that about 2 p. in. he told the members of the crew , including Somer-
lott, in response to a question from one of them, "I believe we are going to have to work a
little later in order to finish the particular lot of fruit belonging to a grower" ; that at
30 p in. when Brooks asked Somerlott why he had checked out , Somerlott replied,
"Eight hours is enough for any man to work" ; and that Somerlott 's going home "left the
crew short ." According to Brown , Brooks attributed the non-operation of the fluoro-
scope after 3: 30 to Somerlott 's departure for home Somerlott 's job was simply to dump
fruit onto the belt leading to the fluoroscope . Obviously , operation of the fluoroscope did
not depend on any unique skill possessed by Somerlott . The record does not show how
many persons were required for the efficient operation of the fluoroscope crew or how many
were available after 3: 30 . The record does not show that Brown reprimanded Somerldtt
for leaving at 3 : 30.
22 Brooks testified that during the month of July, he smelled liquor on Somerlott's breath
and observed that he was "sleepy " Brooks did not reprimand Somerlott for any liquor
smell. He testified further that he reprimanded Somerlott for carelessness once, that
Somerlott claimed to be sleepy , and that therefore Brooks transferred him to another
operation . Brooks admittedly did not report the alleged liquor smell , and it does not
appear that he reported the alleged sleepiness , to Brown or to any other superior.
162 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
above-quoted characterizations of Somerlott by supervisory em-
ployees, the record does not indicate that Somerlott 's actions on
August 3 were irrational or those of an intoxicated person. The
fact that the supervisors engaged in serious conversation with him
is itself persuasive that they considered him sober . Finally, the
record shows affirmatively that respondent Sierra did not consider
Somerlott incapacitated on August 3. Thus Shup admitted that the
operation of the lidding machine requires care and that on August 3
Somerlott was performing this work satisfactorily . Under these
circumstances we cannot credit the testimony that Somerlott was
drunk or "almost" drunk on August 3.
Brown testified also that on August 6 Somerlott "kept making
trips" behind the grapefruit department and had the smell of liquor
on his breath . Brown testified further that on August 7 Somerlott
went to the "back porch" and that upon investigation Brown found
a bottle of wine hidden in a box on the "back porch ." By this in-
nuendo Brown apparently seeks to imply that Somerlott drank dur-
ing working hours. Somerlott denied that he drank during work-
ing hours and we cannot believe that Brown believed otherwise, for
he did not mention these alleged incidents to Somerlott , nor does the
record show that Brown made any bona fide effort to determine
whether Somerlott was really drinking during working hours. On
Sunday, August 8, Brown reported to Webber at his home what he
had "found out" about Somerlott.
On Tuesday , August 10, Somerlott did not appear at work and
Brown telephoned his home to ascertain the reason . Somerlott had
gone to Los Angeles on "personal business " and was not at home when
Brown called . Somerlott's son answered the telephone . He told
Brown that Somerlott was away, and that Somerlott 's wife would
call and explain his absence the following day. Somerlott returned
home late Tuesday night . Work had been slack in the packing house
at this time . Consequently , the employees were working only a few
days each week. Although Brown claims that Somerlott was sup-
posed to work every day in the week , including August 10, it is clear
from the circumstances just related , from Somerlott 's testimony, and
from Shup's failure to deny such testimony , that Shup had instructed
Somerlott not to report for work on Tuesday, August 10.
On Wednesday , August 11, Somerlott 's wife informed him that
Brown had telephoned the day before . Brown claims that he also
telephoned Somerlott 's home on August 11, but received no answer.
Somerlott had become ill on August 11. He did not go to work accord-
ingly, and remained at home all day. At noon that day, Harold
Imray, a fellow employee , visited Somerlott at home during the lunch
period. Somerlott requested Imray to advise Brown that he was ill.
SIERRA MADRE-LAMANDA CITRUS ASSOCIATION 163
Imray communicated this information to George Schaub, who was
acting in Shup's place, as Somerlott's superior. Schaub did not tes-
tify. On Wednesday night Brown went to Webber's home and told
him that Somerlott "was absent and hadn't made any attempt to
contact us."
Somerlott remained at home because of illness from Wednesday,
August 11, to Monday, August 16. On Friday, August 13, John
Schofield stated to Brown that Imray had gone to Somerlott's home
and, that Somerlott was ill. On Sunday Brown discussed Somerlott's
absence with Webber again and was instructed by Webber to discharge
Somerlott.
On Monday morning, August 16, when Somerlott reported for work,
he was discharged by Brown in Dewer's presence. Brown claims
that he asked Dewer to witness the discharge because he "didn't want
Somerlott to be able to say that he wasn't given a fair discharge."
Brown at first testified that he assigned, as the reason for the discharge,
Somerlott's absence from work without notice to respondent Sierra.
Later, however, Brown claimed that he also assigned as part of the
reason the "incidents where he [Somerlott] had come to work with a
smell of liquor on his breath." Somerlott claimed at the hearing that
the only reason assigned for the discharge was his alleged failure to
notify respondent Sierra when he remained home. Foreman Dewer
could not recall that any other reason for the discharge was given by
Brown. The Trial Examiner believed Somerlott and found that
Somerlott was told he was discharged because he remained away from
work without notifying respondent Sierra. Upon the entire record,
we adopt this finding.
Brown testified that Somerlott had never stayed away before without
a telephone call to respondent Sierra from his wife, and that it was his
practice to discharge employees who remained away from work with--
out notice. Brown, however, could give only one instance of his al-
leged practice, a discharge in 1936. Moreover, from other testimony
of Brown, as well as from Somerlott's testimony, we find that Somer-
lott had not always notified respondent Sierra of his absences. It
does not appear that respondent Sierra reprimanded Somerlott for
these failures to give it notice. Finally, as we have stated above,
Somerlott informed Schaub, his immediate superior at the time,
through Imray, of the illness preceding his discharge.
Subsequent to October 13, 1937, Webber requested respondent Betz
not to, and accordingly respondent Betz did not, reinstate Somerlott.
Somerlott, as organizer and president of the Union, was its most
conspicuous member. Prior to this activity the respondent Sierra
considered him "a very fine worker." The record does not bear out
its contention that his conduct deteriorated after May 1937. His
164 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
habit of drinking wine at lunch was of long standing, did not inter-
fere with his work, and was not obnoxious to respondent Sierra
before Somerlott organized the Union. That his failure to notify
the respondents of his illness was the real cause of his discharge is
incredible because he did so notify the respondents through Imray
and because of the other circumstances already set forth. We con-
clude that Somerlott's union activity was the "change of attitude"
and the "flaunting" of management authority to which respondent
Sierra objected. Upon all the evidence, we find that Brown, by
taking written notes on Somerlott's conduct soon after the formation
of the Union in and after July, sought to trap him and to manufacture
a defense in anticipation of his discharge; that the reasons offered
for his discharge are mere pretexts; and that the actual reason for
discharging Somerlott was his union membership and activity. Re-
spondent ' Betz, in sharing the status of employer with respondent
Sierra and failing to reinstate Somerlott at Webber's request, also
discriminated against Somerlott.
We find that the respondents, by discharging and refusing to re-
instate Somerlott, discriminated in regard to his hire and tenure of
employment, thereby discouraging membership in the Union, and
interfering with, restraining, and coercing their employees in the
exercise of rights guaranteed in Section 7 of the Act.
At the time of his discharge, on August 16, 1937," Somerlott was
earning 55 cents an hour and was working approximately 34 hours
a week. He desires reinstatement.
Charles Lalla was employed by respondent Sierra for 15 years. He
was discharged on October 5, 1937. The complaint alleges that the
discharge was discriminatory. The Trial Examiner so found and
the respondents take exception thereto.
Lalla did electrical, cement, and carpenter work; machine work,
such as making, installing, and repairing machinery of all kinds;
and brick laying and plastering. He installed the sprinkling system
in the groves, spray towers for spray rigs, and the oil towers, and
he laid the foundation for oil tanks. He also "dusted" citrus trees
and worked among the groves. Most of Lalla's duties were performed
in the packing houses and consisted mainly of repairing and over-
hauling the machinery. The record shows that Webber caused an
article, which described and praised a fertilizing machine constructed
by Lalla, to be printed in the May 1937 issue of The California
Citrograph, a monthly publication.
Lalla was one of the original organizers of the Union. He joined
the Union on June 5, 1937, and thereafter became the union delegate
to an organization known as the Citrus Council.
About 2 weeks prior to Lalla's discharge he was informed by Larry
Largent, an electrician whom Lalla was assisting at that time, that
SIERRA DIADRE-LADIANDA CITRUS ASSOCIATION 165
Webber had summoned Largent to his office and advised him that
he desired to lay Lalla off. On October 5, 1937, Brown approached
Lalla and told him that he "was through."
Brown testified that Lalla was discharged because he had "finished
his work" and claimed that Lalla's position was never filled. Later
in the hearing, however, Brown testified that prior to Lalla's dis-
charge, Ed Polzel and Lalla had performed the mechanical work in
the packing houses, Lalla assisting Polzel; and that since Lalla's
. discharge a new employee who "is a combination electrician and
mechanic" had been hired to assist Polzel.
Webber testified that Lalla was discharged because the "odd jobs
... ran out when we got the whole plant rebuilt." Upon further
examination, however, Webber testified that respondent Sierra had
completed its building program in January 1937; and that Lalla had
"not always worked on construction" but was "primarily [a] repair-
man." Webber also claimed that a new building which had "stood
practically idle for a year" contained some "very exacting electrical
equipment" which Lalla could not handle, and that he had hired a
"new man" who could handle this work to replace "an electrician"
and Lalla.
The reasons given by respondent Sierra for Lalla's discharge
are unconvincing. We do not believe that it is likely that a man
who had performed general machine repair work and other "odd
jobs" would suddenly, after a period of 15 years regular service, "fin-
ish" his work, or that the "odd jobs" in a plant as large as respondent
Sierra "ran out." The record shows that the construction work had
no effect on Lalla's work. This is evidenced by the fact that Lalla
was employed by respondent Sierra for 10 months after the construc-
tion was completed, and that Lalla's duties were that of a general
repairman and were not directly related to the construction program.
Lalla's long record of employment with the respondent Sierra, the
incredible explanation for his discharge, Lalla's prominent connec-
tion with the Union, and the respondent Sierra's opposition thereto,
convince us that Lalla was discharged because of his union member-
ship and activity.
We find that respondent Sierra has discriminated in regard to the
hire and tenure of employment of Charles Lalla, thereby discourag-
ing membership in the Union, and interfering with, restraining, and
coercing its employees in the exercise of rights guaranteed in Section
7 of the Act.
At the time of his discharge on October 3, 1937, Lalla was earn-
ing 55 cents an hour and worked 9 hours a day. He desires to be
reinstated.
283034-41-vol. 23-12
166 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. The contracts between the respondents
For a number of years prior to 1937, respondent Betz had at-
tempted without success to obtain from respondent Sierra a contract
for the packing of oranges. In 1937 the crop of Valencia oranges,
which are packed from May until September, was greatly diminished
because of a severe "freeze," and as a result respondent Sierra's
packing house was able to operate only 1 or 2 days a week. Because
of this situation, Philip Damon, "contact man" for respondent Betz,
approached Webber and suggested that respondent Sierra's orange-
department crew and a crew of respondent Betz which was packing
oranges in a nearby packing house be consolidated so that the same
crew could operate both houses, thereby reducing expenses and increas-
ing efficiency. Thereafter, on Julie 11, 1937, the respondents entered
into their first contract. By its terms, respondent Betz received a
stipulated price for each box of oranges packed, and, although the
salaries of the employees were paid by respondent Betz, respondent
Sierra retained full supervision and control over employment in its
packing house. Respondent Betz assigned Elmer Lusk to supervise
its part of the work in the packing house and sent about 18 of its
employees to join respondent Sierra's crew. Thereafter, the orange
houses of respondent Sierra and its neighbor were operated with the
one crew . On August 31, 1937, when all the Valencia oranges were
packed, the orange house closed and the contract expired. The lemon
season ended and the lemon department closed on September 15, 1937.
During September 1937 respondent Sierra was considering not rein-
stating employees, upon the reopening of the plant, because of their
union membership and activity. This appears from the following
testimony of Manager Webber :
Q. Did you not say at that time [September 23, 1937, at, a
Board hearing] that you would probably not take about ten of
your old employees back at the beginning of the next season?
A. I said there might be that many.23
Q. Did you expect to take back all of the employees regardless
of the fact that they belonged to the Union or did not belong
to the Union at that time?
A. I was going to make no reference to the Union at that time.
Q. Didn't you state that "we haven't made up our minds about
that yet"?
A. Yes.
2,
Webber testified at the hearing in the present proceeding that upon the reopening of
the plant following a seasonal shut-down respondent Sierra customarily failed to reinstate
10 or 12 of the "less desirable" employees and the "poorest workers ," and that his testi-
mony at the prior hearing referred to this custom Webber's testimony quoted in the text
above, and the other evidence in the present proceeding, show that in September 1937
respondent Sierra considered that union membership or activity made an employee "less
desirable."
SIERRA MADRE -LAMANDA CITRUS ASSOCIATION 167
Q. You hadn't made up your mind at that time about the
Union activities, what you were going to do?
A. No, we hadn't made up our mind.
Q. You said the reason you hadn't made up your mind is you
didn't know what the outcome of the hearings before the National
Labor Relations Board would be?
A. Yes.
Q. You were resting your judgment about what you were
going to do on account of these union activities on the ground
that you had been informed by various persons in authority that
your particular industry did not come within the National Labor
Relations Act, was exempt, is that correct? You thought you
were agriculture?
A. Yes. Still think so.
Q. You feel that since you are agriculture, if any employees
want to belong to the Union they do so at their own risk?
A. If we are agricultural, naturally.
Q. You can get rid of any employees if they belong to a union
since you are agricultural; is that correct?
A. If we are agricultural, we could.
On October 13, 1937, immediately before the lemon house reopened
and some 2 or 3 months before the orange house resumed operations,
the respondents executed contracts for the packing of lemons and
oranges. These contracts were different from the June contract in
that they purported to vest full supervision and control over em-
ployment in respondent Betz as "independent contractor" and "not
the agent of" respondent Sierra. By the terms of the October- con-
tracts, respondent Betz was to be paid on a "straight" basis for pack-
ing oranges and a "cost-plus" basis for packing lemons.24
Webber testified that respondent Sierra entered into the contract
for the lemon department in order to have available respondent Betz's
lemon packers when "hot spells in the East" increased the demand
for lemons and made necessary an increase in the lemon-department
crew on short notice, and denied that the contract was entered into
for the purpose of eliminating any of the employees from the pack-
ing house because of their union activities. We do not believe this
testimony. The record shows that respondent Sierra was the only
24 By "straight" basis is meant payment of a stipulated sum per box By "cost-plus"
basis is meant payment of the actual cost of labor "plus a little over to pay for supervision,
bookkeeping, and so forth " This payment was made at the end of each week by check.
The respondents state in their brief that these contracts were in the form usually used
by respondent Betz ; however, although the record shows that it was usual for respondent
Betz to handle oranges on a "straight basis " and lemons on a "cost -plus" basis, there is no
evidence in the record which shows that it was usual for respondent Betz to insert terms
in its contracts which made it an "independent ' contractor" and "not the agent of" the
other contracting party
168 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
major citrus association with which respondent Betz had a contract
for packing lemons, and respondent Betz did not even have a lemon-
packing crew at the time. of the execution of the contract. Further-
more, there is no showing that any of respondent Betz's employees
were ever sent to respondent Sierra's packing house during "hot
spells in the East"; in fact, Lusk claimed at the hearing in connec-
tion with his testimony concerning his failure to reinstate certain of
the charging employees that after the lemon house reopened, pro-
duction never "stepped up." Moreover, respondent Sierra had oper-
ated its lemon house for 15 years without any such contract. Damon
testified that respondent Betz entered into the lemon contract "for
the money that was in it." This cannot be credited. Benjamin
Betz, owner of respondent Betz, admitted that it did not "pack
enough lemons to try to make a profit out of it" and that the lemon
contract probably came about "as an accommodation for" respondent
Sierra.
With regard to the orange contract executed on October 13, Webber
claims that he entered into this contract because respondent Sierra
had saved money as a result of the June contract. Although it may
be true that the contract was entered into for some lawful reasons,
it is significant to note that the June contract was evidently entered
into because of the freeze mentioned above and that no similar emer-
gency existed at the time the October contracts were executed.26
A consideration of these contracts in connection with the other
circumstances in the case leads to the conclusion that the respondents
discriminated in regard to the reinstatement of employees.
We have already noted the opposition of respondent Sierra to the
Union, its interference with, and restraint and coercion of, the em-
ployees, and its unlawful discharge of two union leaders. Moreover,
as Webber's testimony shows, respondent Sierra was ready to dis-
criminate in regard to the reinstatement of employees identified with
the Union. Webber's testimony also shows that although respondent
Sierra did not consider itself bound by the provisions of the Act, it
contemplated the possibility that the Board might find otherwise.
Respondent Sierra -resorted, therefore, to a method by which its dis-
crimination against union members could be disguised. Its plan to
evade the Act is evidenced by its preparation of a defense in anticipa-
tion of Somerlott's discriminatory discharge. Moreover, the record
fails to show any legitimate reason for the provisions purporting
to shift control over employment to respondent Betz and purporting
to make respondent Betz an "independent contractor" and "not the
u The record shows that the oranges which were packed under the October contract were
not affected by the "freeze" and that the practice, noted above , of operating two orange
houses with one crew was discontinued.
SIERRA MADRE -LAMANDA CITRUS ASSOCIATION 169