South Texas Produce Co.

National Labor Relations Board - Board Decisions

Apr 2, 1946

66 N.L.R.B. 1442 (N.L.R.B. 1946)

In the Matter of H. E . WHITTENBUIIG AND W. S. DOUGHERTY, PART-
NERS, DOING BUSINESS AS SOUTH TEx.1s PRODUCE COMPANY and TEXAS
Fizurr AND VEGETIBLE WORKERS UNION, LOCAL 35, F. T. A. A. W.
U. A.-C. I. O.
Case No. 16-C-1144.-Decided April 0, 1946
DECISION
AND
ORDER
On June 22, 1945, the Trial Examiner issued his Intermediate
Report in the above-entitled proceeding, finding that the respondents
had engaged in and were engaging in certain unfair labor practices.
and recommending that they cease and desist therefrom and take
certain affirmative action, as set forth in the copy of the Intermediate
Report attached hereto. Thereafter, the respondent filed exceptions
to the Intermediate Report and a supporting brief. On February
26, 1946, the Board heard oral argument at Washington, D. C., in
which the respondent and the Union participated.
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and brief filed by the respondents,
and the entire record in the case and hereby adopts the findings, con-
clusions, and recommendations of the Trial Examiner with the modi-
fications noted below.
1. At the conclusion of the hearing before the Trial Examiner, the
respondents moved (1) to expunge the appearance of the Union's
representative, Chester J. Meske, and (2) to expunge his testimony,
on the ground that, according to Article VIII, Section 1, of the
Board's Rules and Regulations, his prior employment during the
pendency of this proceeding as a Field Examiner in the Board's Six-
teenth Regional Office disqualified him from practice before the
Board in the proceeding. We agree with the Trial Examiner that
the rule in question does not disqualify Meske as a witness and that
there is no basis for expunging his testimony. However, inasmuch
as his appearance as a representative for the Union is contrary to
the Board's Rules, we shall, reversing the ruling of the Trial Ex-
66 N. L . R. B., No. 179.
1442
SOUTH TEXAS PRODUCE COMPANY 1 443
aminer, direct that his appearance be, and it hereby is, expunged from
the record.
2. In accordance with our usual remedy for such violations, the
Trial Examiner has recommended, and we agree, that the respondents
be required to offer Harvey Anderson immediate and full reinstate-
ment with back pay from the date of his discharge to the date of the
offer of reinstatement. However, since the respondents' business is
seasonal, it is possible that their plant may not be in operation at
the time said offer of reinstatement is made; in that event the offer
of reinstatement of Anderson shall become effective at such time as
the respondents' seasonal business next begins. Moreover, in making
Anderson whole, we shall not award back pay for the periods in
which he normally would not have worked in the respondents' plant ;
nor shall we deduct as earnings any monies earned elsewhere by him
during such periods.
ORDER
Upon the entire record in the case, and pursuant to Section 10 (c)
of the National Labor Relations Act, the National Labor Relations
Board hereby orders that the respondents, H. E. Whittenburg and
W. S. Dougherty, partners, doing business as South Texas Produce
Company, McAllen, Texas, and their agents, successors, and assigns,
shall :
1. Cease and desist from :
(a) Discouraging membership in Texas Fruit and Vegetable
Workers Union, Local 35, affiliated at present with F. T. A. A.
W. U. A.-C. I. 0., or in any other labor organization of their em-
ployees, by discharging or refusing to reinstate any of their em-
ployees, or by discriminating in any other manner in regard to
their hire or tenure of employment or any term or condition of
employment ;
(b) In any other manner interfering with, restraining or coerc-
ing their employees in the exercise of the right to self-organization,
to form labor organizations, to join or assist Texas Fruit and
Vegetable Workers Union, Local 35, affiliated at present with
F. T. A. A. W. U. A.-C. I. 0., or any other labor organization, to
bargain collectively through representatives of their own choosing,
and to engage in concerted activities, for the purpose of collective
bargaining or other mutual aid or protection, as guaranteed in Section
7 of the Act.
2. Take the following affirmative action, which the Board finds
will effectuate the policies of the Act:
(a) Offer Harvey Anderson immediate and full reinstatement to
his former or a substantially equivalent position, without prejudice
1 444 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to his seniority or other rights and privileges, in the manner set
forth in our Decision;
(b) Make whole Harvey Anderson for any loss of pay he may
have suffered by reason of the respondents' discrimination against
him, by payment to him of a sum of money equal to that which he
normally would have earned as wages from the date of his discharge
to the date of the respondents' offer of reinstatement, less his net
earnings during such period, in the manner set forth in our Decision;
(c) Post at their plant at McAllen, Texas, copies of the notice
attached to the Intermediate Report herein, marked "Appendix A." 1
Copies of said notice to be furnished in English and Spanish by the
Regional Director of the Sixteenth Region, shall, after being duly
signed by the respondents' representative, be posted by the re-
spondents immediately upon receipt thereof, and maintained by them
for a period ending sixty (60) consecutive days after the beginning
of the packing season next following the posting of said notice. ,Said
notice shall be posted in conspicuous places, including all places
where notices to employees are customarily posted. Reasonable steps
shall be taken by the respondents to insure that said notices are not
altered, defaced, or covered by any other material;
(d) Notify the Regional Director for the Sixteenth Region in
writing, within ten (10) days from the date of this Order, what
steps the respondents have taken to comply herewith.
CHAIRMAN HERZOG took no part in the consideration of the above
Decision and Order.
MR. GERARD D. REiLLY, concurring separately :
In my judgment the Board's case stands or falls upon the credence
to be placed on Anderson's testimony. This testimony was contra-
dicted at almost every material point by other witnesses in the case.
The Trial Examiner, however, had an opportunity to observe his
demeanor and the demeanor of the impeaching witnesses, and there-
fore was in a better position than the Board to declare which testi-
mony was true and which was false. There is nothing in the record
to indicate a bias toward one contestant or another. Although an-
other Trial Examiner might have reached a different conclusion in
this case, there is nothing in the record before us to justify a reversal
of the findings of the Trial Examiner.
1 Said notice, however, shall be, and it hereby is, amended by striking from the first
paragraph thereof the words "Recommendations of a Trial Examiner" and substituting
in lieu thereof the words "A Decision and Order."
SOUTH TEXAS PRODUCE COMPANY 1 445
INTERMEDIATE REPORT
Mr. Earl Saunders , for the Board.
Messrs . Strickland , Ewers & Wilkins, Attorneys, by Messrs. Scott Toothaker
and Pat J. Howe, of Mission, Tex., and Mr. Austin Anson, of Harlington, Tex.,
for the Respondents.
Mr. Chester J. Meske, of Mercedes, Tex., for the Union.'
STATEMENT OF THE CASE
The National Labor Relations Board , herein called the Board , by its Regional
Director for the Sixteenth Region ( Fort Worth, Texas ), issued its complaint
dated March 10, 1945, against H. E. Whittenburg and W . S. Dougherty , partners
doing business as South Texas Produce Company , McAllen, Texas, herein called
the Respondents . The complaint alleges that the Respondents had engaged
in and were engaging in unfair labor practices within the meaning of Section
8 (1) and ( 3) of the National Labor Relations Act, 49 Stat . 449, herein called
the Act. It was issued after charges were filed with the Board by Texas Fruit
and Vegetable Workers Union , Local 35, F. T. A. A. W. U. A.-C. I. 0., herein
called the Union' Copies of the complaint and notice of hearing thereon were
served upon Respondents and the Union.
With respect to the unfair labor practices the complaint in substance alleges
that the Respondents : ( 1) discouraged membership in the Union by the dis-
criminatory discharge of Harvey Anderson on October 23, 1944 ; (2) interfered
with, restrained, and coerced its employees in the exercise of the rights guar-
anteed in Section 7 of the Act , from about January 1944 until the complaint
was issued on March 10, 1945, (a) by the aforesaid discriminatory discharge
of Anderson to discourage union membership , (b) by expressing disapproval
and disparagement of the Union , ( c) by interrogating the employees concerning
their union affiliations , (d) by having dissuaded and warned the employees
against becoming members of the Union , ( e) by having kept the activities of
the Union and other concerted activities of the employees under surveillance.
The Respondents filed an answer to the complaint denying specifically the
commission of any of the alleged unfair labor practices , although admitting the
discharge of Anderson on October 23, 1944. Pursuant to notice , a hearing was
held at Edinburg , Texas , from March 22 to 24, 1945, before a Trial Examiner
designated by the Chief Trial Examiner , whose Intermediate Report was not
issued because the official reporter serving at the hearing lost the stenographic
notes and exhibits before a transcript of the proceeding was prepared. The
Chief Trial Examiner ordered the hearing reopened for the purpose of con-
ducting a further hearing upon the issues framed by the complaint and other
pleadings , and directed the Regional Director for the Sixteenth Region to give
notice of such hearing . Pursuant to this order , a second notice of hearing on
the allegations set forth in the complaint was duly served upon the Respond-
t Ruling on the Respondents' motion to expunge the appearance of the Union 's repre-
sentative , Meske, Is made below.
2 The complaint when issued alleged the name of the parent organization to be U C. A.
P. A. W. A -C. I. 0 (United Cannery, Agricultural , Packing and Allied Workers of
America, affiliated with the C . I 0 ), and by motion allowed at the hearing the complaint
was amended to allege the change of name of U. C . A. P. A. W. A.-C. I. 0. to F. T. A. A.
W. U. A.-C. I. 0. (Food, Tobacco, Agricultural and Allied Workers Union of America,
affiliated with the C . I. 0.), through action of its constitutional convention held December
4 to 8, 1944.
1446 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
eats and the Union. The Respondents filed a second answer, dated April 25,
1945, which embodied their former denials and, in effect, set forth a plea in
bar by reason of the issues having once been tried . Pursuant to the second
notice, a hearing was held at Edinburg and at McAllen, Texas, on April 27, 28,
and 30, and May 1, 1945, before Melton Boyd, the undersigned Trial Examiner
designated by the Chief Trial Examiner. The Board, the Respondents, and the
Union were each represented at the hearing. All parties participated in the
)fearing, and each was afforded full opportunity to be heard on the matters in
issue, to introduce evidence, and to examine and cross-examine witnesses.
At the opening of the hearing, and on several subsequent occasions, the
Respondents moved to quash the proceeding, strike testimony , and dismiss the
complaint, in effect questioning the power of the Chief Trial Examiner, the
Regional Director, and the Board, to order the reopening of the hearing on all
issues These motions were denied . At the opening of the hearing, the Board
moved to amend the complaint to allege the change in name of the parent
organization with which the Union was affiliated; and at the conclusion of the
hearing, the Board moved to conform the pleadings to the proof with respect
to formal matters These motions were granted.
At the conclusion of the case, the Respondents moved (1) to expunge the
appearance of the Union's representative, Chester J. Meske , and (2 ) to expunge
his testimony, because he had been employed by the Board as a Field Examiner
at the time when the Union's change was filed with the Board The Trial
Examiner reserved his ruling on these motions. Meske was a Field Examiner
in the Sixteenth Regional Office during a part of the time that the charges
were pending, leaving the Board's employment on January 5, 1945, prior to the
issuance of the complaint There is no evidence indicating that he at any time
performed any services, while employed by the Board, in connection with these
proceedings. The Trial Examiner was not aware that Meske had been an
employee of the Board in the Sixteenth Regional Office during the pendency of
the charges until the matter was brought out at the hearing. The motions seek
to invoke the Board's rule, which denies to former employees the privilege of
appearing in any proceeding which was pending in a Regional office at the time
NOen he was employed there' 1\Ieske had appeared for the Union in the
previous hearing in this case, apparently without objection by the Respondents
and their objections made in the instant hearing, timed at its conclusion, did not
permit the Trial Examiner to bar Meske's appearance in behalf of the Union
throughout the lieai ing He was called as a witness by the Board, testifying
only to the character of the Union as a labor organization and to the change
in name of the parent organization with which it was affiliated. He disclosed
he got this information from union records, when he became its international
representative after leaving the Board's employ. The Board's rule does not
disqualify him as a witness ; it does deny hint the right to appear in a repre
sentative capacity in this case. Insofar as it can be given effect, the Respond-
ents' belated motion prompts the Trial Examiner to recommend to the Board
that Chester J Meske be barred from appearing in behalf of the Union in any
subsequent proceedings in this case. The motion as made, framed on the
narrow ground of expunging Meske's appearance, avails nothing after Meske
has appeared in fact throughout the hearing. The Trial Examiner , desiring to
give useful effect to the Board' s rule and to encourage the timely invocation
of it, denies the motion to expunge Meske's appearance at the hearing; since
3 Rules and Regulations of the National Labor Relations Board, Article VIII, Section I
"Prohibition of practice befoie Board of its former Regional employees in cases pending
in Regions during employment "
SOUTH TEXAS PRODUCE COMPANY 1447
no disability attaches to him as a witness, and the Board's paramount duty to
ascertain all the facts requires that none should, the motion to expunge his
testimony is denied.
Upon the entire record in the case and from his observation of the witnesses,
the Trial Examiner snakes the following.
FINDINGS OF FACT'
I 1'1111. Ili"^I Nr. ^> OF THE RE,1'oNDEN'1s
H. E. Whittenburg and W. S Dougherty are partners doing business as South
Texas Produce Company with their office and place of business in McAllen.
Texas. They are engaged in the business of purchasing, packing, and selling
citrus fruits, tomatoes, and vegetables. Their gross sales during the annual
period of 1944-45 season was in excess of $500,000, approximately 80 percent of
which was shipped to points outside the State of Texas In these operation,
they used lumber, boxes, excelsior, bags, and related supplies, valued during
said period in excess of $15,000, at least 15 percent of which was purchased
outside the State of Texas.
The Respondents concede that they are engaged in commerce within the
meaning of the Act.
11. THE ORGANIZATION INVOLVED
Texas Fruit and Vegetable Workers Union, Local 35, affiliated with Food,
Tobacco, Agricultural and Allied Workers Union of America, formerly known
as United Cannery, Agricultural, Packing and Allied Workers of America, an
affiliate of the Congress of Industrial Organizations, is a labor organization
within the meaning of the Act.'
II. THE UNFAIR LABOR PRACTICES
A. The Respondents' operations
The Respondents' packing operations during the 1944-45 citrus season began
in October and continued until February They commenced in the packing shed
with the delivery of fruit to a grading table where graders inspected it to see
that it met a prescribed quality. It then passed from the grading table onto
endless belts, running along sizers where, released according to size, it was
permitted to roll into a line of bins at the side.
4 All dates given are in 1944 , unless otherv. ise specified Except where otherwise noted
or where conflicts in testimony are discussed, the follovAng findings of fact are made on
evidence that -,ias undisputed or that was at variance onl; in immaterial detail; and
the findings in Section I are based on it stipulation of facts agreed to at the hearing
5 The Respondents conceded that the pas ent organization was it labor organization
prior to December 1944, before its name was changed They deny, for lack of informa-
tion, that it was such after it changed its name, and deny that Local 35 is such. The
testimony of Chester J Aleske and of Haivey Anderson clearly disclosed , as the fact of
its prosecution of its charge against the Respondents indicates, that Local 35 is an
"organization ` * * in which employees participate and which exists for the pur-
pose , in whole or in part, of dealing with employers concerning * * * labor dis-
putes , wages * * *" See Section 2 (5) of the Act.
1448 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
One unit of the Respondents' operations, situated on the west side of their
shed and arranged to grade grapefruit, was comprised of a grading table and 4
sizers. Another unit, on the east side of the shed and used in grading oranges,
had a separate grading table and two sizers. Packers, working at the side of
the bins, placed the fruit of uniform size in boxes. They were paid at a piece
rate of 31/2 cents per box for grapefruit, and 5% cents per box for oranges.
To equalize any advantage of packing fruit of a particular size, which with
grapefruit varied from a pack of 36 to the box to a pack of 120 to the box, the
packers moved forward hourly in positions along the sizer, progressing from
one sizer to the next and from the grapefruit unit to the orange unit.
B. Opening of the citrus season
In preparation for the season, William H. Gullion, the packing shed foreman,
went to Edinburg, Texas, on October 1, 1944, seeking experienced packers.
While there, he found and hired Mr. and Mrs. Lonnie Smethers, Jack Adams,
and Harvey (Jack) Anderson. In talking with Anderson, Gullion stated that
the Respondents intended to hire no more packers than was necessary, in order
to assure the packers good wages. According to the testimony of Gullion, and
of Ridings who succeeded him, three packers were employed ordinarily at each
sizer for grapefruit except when the amount of fruit was great enough to
require additional packers, and 6 on each sizer for oranges.
The Respondents' citrus season opened on Wednesday, October 11, with only
the grapefruit unit in operation. Nineteen packers worked on that day, and
there was fruit for only a part of a day's operation. On the following day, 21
packers worked, and on the next 2 days 18 packers worked. The packers were
not kept busy continually, at times due to the insufficient quantity of fruit, and
at other times due to repairs and adjustments which were required to be made.
On Saturday of the first week, for both these reasons, Harvey Anderson packed
no fruit, although he was at the shed the entire day. This condition, at about
this time, prompted Anderson to inquire of Gullion, whether the Respondents
intended to retain all of the packers. Gullion told Anderson that as soon as the
orange unit began operations, the extra help then on the grapefruit unit would
work on the orange unit.
On Monday October 16, in addition to the grapefruit unit, the Respondents
began operations on the orange unit Pay-roll records for that day disclosed
17 packers working on the grapefruit unit, of whom 10 also worked on the
orange unit. During the next three days, the packers varied from 15 to 17 in
number, working on both the grapefruit and the orange units. Beginning on
Friday, October 20, the names of four additional packers were included on the
pay roll, which indicated they were paid for packing oranges on that day."
Anderson, in his testimony relating to this, said several Mexican girls were
assigned to work on the orange unit. He implied that some were working with-
out pay. Dougherty, a partner, NNhen questioned whether inexperienced
Mexican packers worked without pay during their training period at that time,
answered "they might-a packed a few boxes on someone else 's picket; I don't
know."
When it again became apparent to Anderson, after the employment of the
additional packers, that work on the orange unit would not provide full em-
ployment for the packers first employed, he and Jack Adams inquired of Gullion
$ Their names were Leonor Sepubeda, tosifa Cruz, Axeila Alvarado , and May Cloyd.
Cloyd worked principally on the grapefruit unit that day.
SOUTH TEXAS PRODUCE COMPANY 1 449
whether the Respondents intended to retain the Mexican packers. Dougherty
was present at that time, and told Anderson and Adams that the Respondents
intended to let the Mexican help go. Accordingly, the Respondents did dismiss
some of them.
C. Anderson's union activities
Harvey Anderson had joined the Union in January 1944, and had been ap-
pointed a member of its organizing committee. He was the only committeeman
working in Respondents' shed. Jack Adams, also a member, was active in
supporting the Union, and in soliciting employees to join. Anderson and Adams
were the principal union advocates working for the Respondents.
At the times when the machinery required adjustment, or no fruit was run-
ning, or when it was sufficient to keep only one or two packers on each line
busy, it was customary for those who were not busy to wait in a lounge room
or on the platform, or to go for coffee at a nearby cafe. When, under such
circumstances, Anderson was not working, he discussed the advantages of
unionization with other idle employees, soliciting them to join the Union.
Elinor Saenz, head grader on the grapefruit unit, who had worked for 5
years for the Respondents, testified that Anderson frequently spoke to her and
other graders while they were at work. She testified that, "three or four times
a day" when they were working on the grading table Anderson came there and
urged them to join the Union. There was a notice at the grading table which
prohibited any talk with graders. A fair construction of Saenz's testimony,
when related to her disclosed understanding of this prohibition, is that Saenz
believed that Anderson violated the no-talking rule applicable to graders by
talking with them at their place of work, when they were being paid for idle
time during any interruption of operations. Anderson, admitting that he
talked with Saenz and the other graders, denied that he did so at the time
when they were working, except when operations were interrupted for lack of
fruit, repairs, or adjustments. Considering the definite testimony of Anderson,
as well as his sincere interest in getting full work for himself and the other
piece-rate packers, and evaluating Saenz's testimony in labored English (her
primary language is Spanish), its plausability, and the instructions of
Dougherty that she keep busy, noted below, the Trial Examiner credits Ander-
son's version of these incidents, as having occurred when the graders were not
busy at their work.
The Trial Examiner finds, as Saenz testified, that she reported Anderson's
solicitation of her and other graders, that they join the Union, to Dougherty,
and that Dougherty told her just to keep busy if Anderson did it again. She
did not fix in her testimony the date when she made this report to Dougherty.
On Saturday, according to Anderson, during a suspension of operations, he
went up on the grading table and talked with the graders. When the machinery
started, he returned to his work. Gullion motioned to him and took him into a
boxcar next to the platform at the side of the shed. He said he had been asked
by Dougherty to talk with Anderson about trying to organize the floor help.'
Gullion asked Anderson if he had been talking with the floor help about joining
the Union, which Anderson admitted. Gullion asked what their reaction had
been, which Anderson refused to discuss. Gullion told Anderson that he had
no objection to the packers joining the Union, but he did want Anderson to
Floor help were hourly paid employees, and included the lidders, truckers, checkers,
and, in the testimony included the graders as well,
1450 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
leave the floor help alone, remarking that the Mexican floor help were then
getting more in wages than they were worth.
Gullion testified that, on this occasion, he did admonish Anderson about talk-
ing with other employees, although he denied that any reference was made to
the Union. He did not refer specifically to having seen Anderson talk with
the graders on this day, but elsewhere in his testimony he said he had seen
Anderson talk with them on the grading table several times, and that he had
done so while they were at work. According to Gullion, he asked Anderson to
go with him into the boxcar after he saw Anderson smoking a cigarette in
the shed. He testified that he took Anderson there, as a convenient place to
talk, to reprimand him for having violated the no-smoking rule.
The evidence was clear that employees were prohibited from smoking inside
the packing shed, where "No Smoking" signs were posted, and that violators
were sharply censured. However, employees were permitted to smoke on the
loading platform and in the employees' lounge room. According to Gullion,
Anderson violated this rule frequently ; and when spoken to about it, Anderson
immediately would dispose of his cigarette with the explanation that he had
lighted it absent-mindedly. J. D. Ridings, (promoted on November 28th from
packer to foreman, succeeding Gullion) and employee Henry Burnett testified
they had seen Anderson smoking at times inside the packing shed. Dougherty,
a partner, testified he saw him smoking on at least one occasion, and repri-
manded him for doing so. Employees Maxine Harr, Dorothy VanMatre, Polly
Dick, Ellen Dean, and Mr. and Mrs. Lonnie Smethers, each testified they had
not seen Anderson smoking while working near and with him. The Trial Exam-
iner believes and finds that Anderson did smoke inside the shed at times in the
opening days of operations when he was not actually at work , notwithstanding
his denial that he had done so, and that his infractions of the no- smoking rule
were infrequent and were condoned, with the Respondents ' disapproval
however.
With reference to the discussion in the boxcar, Gullion admitted this was
the only time he ever took a packer there to talk with him. In practice, em-
ployees were censured for a dereliction at the time and place it was observed.
Gullion first testified, when he saw Anderson smoking, that "he was sitting out,
smoking" on the west side of a single unit sizer near the doorway to the plat-
form, but later testified that "he was inside on his line where he was supposed
to be working * * * standing there smoking." Considering this contradiction,
the delayed censure, and the singularity of discussing it in the boxcar, the
Trial Examiner finds that Anderson was not smoking in the shed on this occa-
sion, and that this was not the subject of Gullion's talk with him in the boxcar,
Anderson's version of Gullion's talk is credited, as being apposite to Anderson's
activities and in accord with Gullion's attitude toward unionization, herein-
after recounted.
D. Anderson's discharge
On Monday, October 23. the shed began operations at 9 a . m. But 10 or 12
packers appeared, of whom 3 or 4 had been on the grapefruit unit. These began
working on their unit, but soon were transferred to the orange unit to fill its
complement of packers. Other packers arrived later in the morning, 10 or 12
of them according to Gullion, and were told by him to return at 1 p. in. At
about 9:30, when on his way to work, Anderson was notified by other packers
that work would start at 1 p in. He delayed until then in going to the shed.
Several packers testified credibly they understood that work was to begin later
SOCTII TEXAS PRODUCE COMIPANI 1451
than when it started , 2 saying the starting hour had been fixed for 10 a. m:
In view of the number of packers who appeared and were told to return at 1
p. in., it is clear and the Trial Examiner finds that the Respondents did not
endeavor to operate the grapefruit unit for any length of time on that morning.
It is immaterial to resolve the contradiction in testimony , whether the grape-
fruit unit was out of repair , as indicated by Gullion 's statement to Mr. and Mrs
Smethers , or was operated for only a short time and was stopped for other
reasons.
At starting time that afternoon, when going to his place of work, Anderson
was told by Gullion that he was discharged. Anderson went to Dougherty's
office, said he had been discharged , and requested his pay. Dougherty made
no inquiry concerning the discharge, but told Anderson to return later for his
pay. Anderson left the plant, secured a form of certificate of availability from
the office of United States Employment Service, returned and requested
Dougherty to fill it out. Anderson requested Dougherty to enter the reason
for his discharge on the form, and Dougherty stated on the certificate that
Anderson was laid off due to the employment of packers with more seniority
At this time the Respondents employed as packers a group of Mexican women
formerly employed by them during the preceding tomato packing season.
Dougherty told Anderson they might use him again later.'
A day or so after Anderson's discharge, Dougherty asked Julius Potts,
employed as a trucker in the shed, whether he had heard of any more activity
in the shed since Dougherty had "gotten rid of that mail," and whether lie got
"rid of the main one." He requested Potts to inform him "of anything else
going on out there," and a few days later asked Potts if he had anything to
report and whether "things are going along smoother now." Potts, who was
a union supporter, gave him pacifying ansvrers.
Dougherty, although admitting he might have asked Potts whether some
trouble with the machinery was corrected, denied that lie discussed "the Union
with him." Dougherty's version of the conversations he had with Potts, who
was a trucker and not a mechanic, is not convincing. Likewise, his denial of
Potts' testimony is not convincing, and is rejected.
E. Conclusions as to Anderson's discharge
Dougherty testified, with vagueness and self-contradiction, that lie and
Gullion discussed the discharge of Anderson before the latter was notified of
it. Gullion denied this. The fact that they did so is confirmed by the absence
of any inquiry by Dougherty of the cause for discharge when Anderson came
to his office, at a time when the Respondents were opening their packing season
and were in need of experienced packers.
Dougherty testified that Anderson "violated the rules and was a bad influence
around the plant ; he didn't like the vt ay he worked down there, so we decided
it would be better for him not to be there ; in other words lie was not satin
factory." He specified that Anderson violated the "no smoking regulation
s The starting hour varied from day to day, according to the quantity of fruit on hand
to pack In practice, Respondents set the hands of a cardboard "clock" to indicate the
starting time for the next day
,-Anderson subsegneutli was employed as a paid organizer by the Union. The
Respondents endeaiored to impeach him bi adducing a statement made in financing a
car p"rchase , signed and ^eoin to by -tndeison , indicating his employment by the Union
a' The time when lie was in the Respondents' eniplov The state of the evidence and
the circumstance of making this statement failed to disciedit luni as a icitnecs
1452 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
* * * the rule about talking to graders, and interfering with people in the
performance of their work ." He admitted he did not caution Anderson against
such conduct , except to tell him on one occasion not to smoke In the shed.
Anderson testified he was not criticized by any supervisor for anything , except
when Gullion talked with him in the boxcar.
The Trial Examiner believes that Anderson's occasional infractions of the
no-smoking rule, which are found to have occurred, were censured but tolerated.
Such infractions on the part of other employees were common incidents, at
times occurring when they passed through the shed while awaiting work and
when, as in the case of the floor help, they were smoking on the sly.
Dougherty explained the reason for the rule was because of insurance, and
because Mexican employees wasted time in rolling cigarettes . He disclosed
the penalty for its violation was a reprimand. There was no evidence of any
other employee having been discharged for this reason, and he admitted he
had not warned Anderson of such penalty. Recognizing the Respondents' right,
as argued orally by their counsel, to enforce by discharge such a rule, it is
apparent in this case that their practice was not to impose such a drastic
penalty for its violation.10 With reference to Anderson's interference with the
performance of work by the graders and other employees, as found above, the
dependable evidence discloses that his talks with them occurred only when
they were not busy at their work. The Trial Examiner finds these claimed
violations, offered by the Respondents at the hearing, did not cause them to
discharge him.
Dougherty testified that he and Gullion discussed Anderson's irregularity at
his work, agreeing that Gullion should discharge anyone that was not regular.
He said that Anderson would absent himself from the shed when it was his
turn to pack small fruit. First stating that he and Gullion found this reflected
in the pay-roll record when they were trying to ascertain the cause of low
production, he later failed to point this out in the record, but said it was a
practice of Anderson which they observed. The credible testimony of the
packer who worked next to him, and of other packers, clearly shows that
Anderson rotated in his work along with all others, and did not refuse or fail
to pack small fruit in his turn. There was no evidence that any packer, who
would have had cause to complain if Anderson had packed only the large fruit,
made any complaint to the management, nor that the management reprimanded
Anderson for this asserted dereliction. The Trial Examiner finds this cause for
discharge unsupported by dependable evidence.
Dougherty specified further that Anderson was absent on Friday evening
and Monday morning. With reference to Friday evening, Anderson had asked
for and had been granted permission by Gullion to leave the shed. He was
gone from work until the following morning. Gullion testified, and Anderson
denied, that he had asked permission to be gone only 30 minutes. Significantly,
Gullion made no mention of this when he talked with Anderson in the boxcar
on Saturday. With reference to Monday morning, Anderson 's absence was
no different from that of 10 or 12 other packers who were notified to return
at 1 p. in. His failure to repoit in person was no different from that of another
packer, Van Matre, who returned to work that afternoon without criticism."
10 Cf. Atlas Press Company, 32 N. L. R B. 863, at page 887 , enforced in N. L . R. B. Y.
Atlas Press Company, 11 L. R R Man. 702 (C C. A. 6) ; Ingalls Iron Works Company,
58 N. L. R. B. 1202.
31Dougherty 's testimony that May Cloyd was discharged on Monday for her absence
is not supported by the Respondents ' records. Cloyd , who started to work on Friday
October 20, worked irregularly until Thursday October 26, when she was paid off.
Dougherty testified there was no other packer discharged in October
SOUTH TEXAS PRODUCE COMPANY 1453
The Trial Examiner finds these factors did not impel the Respondents to
discharge Anderson.
Dougherty, in elaborating on Anderson being a bad influence in the shed, and
not being a satisfactory employee, testified that it was frequently reported to
him that Anderson complained about the way the shed was operated. No
evidence was offered indicating that Anderson's conduct, in this respect, was
contumacious, or resulted in the neglect of his work or in the disruption of
shed operations. Dissatisfaction with the amount of available work wa-4
expressed by many of the old packers. Anderson voiced this to Gullion and
Dougherty. His conduct in this respect, which was an inseparable part of his
leadership in organizing the Union and in attempting to improve the conditions
of employment for himself and his co-workers, related significantly to one of
Dougherty's stated reasons for discharging him. In citing this conduct as a
reason for his discharge, Dougherty fixed upon a factor which was Anderson's
privilege, and was a legitimate activity protected by the Act.
Dougherty admitted that the statement on the availability certificate, that
Anderson was discharged for lack of seniority, was not in fact the reason
for it.'= Nevertheless, in substance it was similar to the reason Gullion gave
at that time, according to Anderson, that he was letting Anderson go because
of some changes that were being made. Gullion's testimony as to his own
statement to Anderson, when discharging him, that it was "due to * * '
absence and violating the shed rules," is discredited by Anderson's version
and by Dougherty's certificate. The factors which Gullion testified that he
i'ited, as found above, were without foundation in fact.
The Respondents conceded that Anderson was one of their best packers.
It is clear they knew of his union activity. The controlling consideration,
underlying the various explanations for his discharge, was revealed by Gullion's
talk with Anderson on Saturday morning, by Dougherty's remark to Potts
after Anderson was discharged, and by Dougherty's disclosure at the hearing
that he deemed Anderson to be a "bad influence." The Respondents disapproved
of his efforts to unionize the employees, and disliked the fact that he made
the request that they curtail the complement of packers in order to permit
better wages and working conditions for the ones first employed, as had been
promised. The Respondents discharged Harvey Anderson on October 23rd,
because of his activities in concert with other employees and in behalf of the
Union, thereby discouraging membership in the Union, and interfering with,
restraining, and coercing the employees in the exercise of the rights guaranteed
them in Section 7 of the Act
F. Events preceding November 6
The dissatisfaction of the packers who had been employed at the opening of
the season, referred to in testimony as American packers, continued after
Anderson's discharge. They disapproved of the Respondents' action on October
23, in employing the additional packers, referred to in testimony as Mexican
packers, who were assigned to the orange unit.
ra Dougherty testified that his reason for filling in the certificate as he did was not to
hinder Anderson in getting another job. The assigning of this harmless motive at the
hearing, unexplained when the certificate was issued, fails to dissipate the inference that
Dougherty was trying to conceal his real purpose in discharging Anderson. This claimed
consideration for a discharged eniploNee is in marked contrast to the damaging reasons
given on the certificates rssued to other packers on November 7th, as hereinafter
recounted.
1454 DECISIONS OP NATION AL LABOR RELATIONS BOARD
\t about tli - time, Polly Dick. a parker v%ho had been employed since 1942.
was off work for a couple of days When she returned to work at the shed.
Gullion sent her to Dougherty before permitting her to start. Dougherty asked
Dick if she was involved. in the "mess" in the shed. She asked to what he
referred, and he said "the damned Union mess." Dick told him she was not,
and he said that if she was not she could go back to work, and that he wanted
her to have no part with them because they caused trouble. Dick fixed this
occurrence "about the middle of October," but the part of the pay-roll record
put in evidence shows no absence prior to October 23. Her employment termi-
nated on November 6 In her testimony she mixed other dates which showed
her utter lack of recollection of dates: her testimony as to dates is wholly
undependable. However, she was -pecifie and consistent in describing various
incidents , and with reference to this and other incidents related by her she is
credited as a 'nbstantially accurate witness Dougherty did not deny this
inoident
]luring the following week. about November 1st as fixed by Maxine Ilarr's
testimony, Dougherty met Harr, a packer, at the water keg and said to her.
"Maxine, don't let any of these damned fools talk you into joining that union.'
His remark was overheard by another packer, Dorothy Van Matre. Harr had
been working for the Respondent for six or seven years. The Trial Examiner
found both Harr and Van Matre honest witnesses; he credits their testimony
with reference to this incident, and rejects Dougherty's denial.
On Thursday, November 2, the grapefruit unit was out of repair and no
fruit was being packed The packers assigned to that unit were idle. The
orange unit was operating, with a number of the new packers, all Mexicans,
working there. The old packers, about 14 in number, displeased with the lack
of work, went as a group to Dougherty and protested against work being given
only to the new packers, declaring they would do no more work until the latter
were discharged. As a group they sat down in the employees' lounge awaiting
Dougherty's action. Dougherty dismissed the new packers, about 8 in number,
and told the old packers to work on the orange unit.
Later in the day, Whittenburg, the other partner, learned of Dougherty's
action and discussed It with him. Whittenburg, according to his testimony,
disapproved of Dougherty's action in dismissing the Mexican packers, and left
the latter's office in an angry mood. As he went through the shed, according
to Polly Dick, he declared that he would fire all the American packers and
get a whole crew of Mexican packers, if the former did again such a thing as
they had done that day. He returned later and talked to Dougherty, and they
decided to reemploy the Mexican packers. On the following day, the Mexican
packers resumed their work in the shed, and were intermingled among the old
packers on the grapefruit unit; and on the day following that, more Mexican
packers were employed. On November 4, Dick overheard Whittenburg in a
conversation with his assistant, when Whittenburg said he was going to lay
off all the union packers and hire an entire crew of Mexicans. Whittenburg's
testimony, except with reference to the two statements attributed to him by
Dick, corroborates her account. When related to the entire episode, Whitten-
burg's first statement reflected his admitted reaction to what had occurred, and
his second statement forecast what was to occur on the following Monday.
His denial of having made the statements, to which Dick testified , is rejected.
G. November 6 strike
During the morning of Monday, November 6, some packers at the shed were
idle and complained that there were too many on the line to permit any of
SOUTH TEXAS PRODUCE COMPANV 1455
them to work with any speed. Polly Dick, who was working, proposed that a
committee discuss the condition with Dougherty. She and three other packers
went to his office at about 10 o'clock, told him that the line was too crowded
and asked him to do something about it. Dougherty said he would do so.
They returned to work. More new packers were added to the line, and nothing
was done to correct the situation. At 11:30 a. in. all the old packers, number-
ing from 12 to 15, walked off the line and notified Dougherty of their complaint,
that there were too many packers at work, and that there was no need for the
Mexican packers. He told them he had the right to hire as many as he
wanted, and that the old packers could work under those conditions or quit.
He offered to give releases to any who did not want to work. All the old
packers left the shed, except for 3 or 4 who resumed their work for an hour
or so and then left." Releases were issued on November 7th to all who asked
for them, which recited "Walked off job. Refused to work with Latin-American
packers. Behind on orders, plenty work for all to do." The Respondents
continued operations with the Mexican packers then on the job, and with others
who were employed from a group who had been waiting at the shed on that
morning.
H. Gullion 's remarks at the end of the preceding packing season
In March 1944, toward the end of the citrus packing season that preceded
the events described above, local newspapers had carried articles relating to
the Union's purpose to organize packers in the citrus growing region of South
Texas, and stating that the Union intended to have elections conducted to
determine whether it would be certified as the bargaining agent in various
packing sheds. On the last day of the season, when the Respondents' packers
were gathered in the employees' lounge, Gullion, the foreman, talked to them
and asked them what they thought of the Union, polling the views of some who
were present. There were various comments about advantages and disadvan-
tages of unionization. Gullion, called as a witness, was asked whether he
stated his opinion on the good points and bad points, and testified "I described
what I thought were the bad points. I first asked for their opinions as to
what they thought good about the Union, or who were in favor of the Union,"
and then specified certain things which he thought bad. Rowena Meadows
testified credibly that Gullion told them "we are expecting some union organ-
izers around trying to organize a union * * * I would like for you to
vote against it." Polly Dick testified, and was corroborated, that Gullion told
them that he did not want any packers in the union.
1. Conclusions as to interference, restraint, and coercion
In response to the allegations of the complaint that the Respondents inter-
fered with, restrained, and coerced its employees from about January 1944 to
March 1945 by the manifested disapproval of the Union, and of membership
therein, and by having kept the activities of the Union and other concerted
activities of the employees under surveillance, the Respondents denied any
l These 4 were Polly Dick, Jack Adams, Mrs. Ercanbrach, and Mrs. H. E. Whitteuburg
( a sister -in-law of Henry Whitteuburg).
1456 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
unfair practices, and contended the strike action of their employees contravened
the public policy against racial discrimination."
The issues of fact presented by the evidence, and discussed by counsel for
the Board and the Respondents in oral argument, raised some question con-
cerning the motivation of the November 6th strike. Upon consideration of
the entire record it is clear to the Trial Examiner that the concerted action
of the old packers, referred to as the American packers, in protesting the
employment of the new packers, referred to as the Mexican packers, stemmed
from economic considerations alone and not from racial prejudices. It arose
during the first week of operations, before any Mexican packers were employed,
when Anderson asked Gullion, the foreman, what was to be =done to provide
sufficient work for the number of packers then employed. Gullion previously
had made representations to Anderson and others, when hiring them, that the
number of packers was to be limited to permit each one to have full employ-
ment. Later he quieted their apprehension by telling them that the excess
number then employed would be assigned to the orange unit when its operations
began . However, shortly after starting the orange unit, the Respondents
employed the additional packers, who were Mexicans, and their number aggra-
vated the condition of which the old packers had complained. After Anderson's
discharge, it was further aggravated by the employment of more packers. The
Trial Examiner finds that, fairly appraised, the employees' protest on November
2 related to the old packers' lack of work at the time when the grapefruit
unit was not operating, and on November 6 related to the crowded conditions
under which these old packers were then being required to work. The old
packers' identification of the class of new packers, as the Mexican packers,
was merely the use of a vernacular expression . The Respondents misstated
the cause for which the old packers quit work on November 6, both in their
testimony and in the releases prepared by Dougherty. These findings are
supported by the fact that the principal spokesmen for the old packers mani-
fested no discriminatory attitude with reference to race, 1. e., Anderson
endeavored to enroll the Mexican graders in the Union, and Adams and Dick
continued at work with the Mexican packers for a short time on the morning
of the strike after the others left the shed. It is apparent that the Respondents
attempted to distort the grievance of the old packers into a racial issue, in
order to prejudice the Mexican employees against affiliation with the Union.
This falsification of the facts, which incited antagonism by an appeal to the
base emotions of the affected employees, served to divide them at the time when
the Respondents anticipated their concerted action to better their working
conditions. This device was a further instrument of interference with union-
ization. In itself, it vilified the Union by attributing to it an invidious purpose
contrary to its policy, and not a legitimate object of collective bargaining."
UThe Board 's complaint alleges no violation of Section 8 (3) of the Act by anti-union
discrimination against the strikers in regard to their employment terminating on Novem-
ber 6. The Union had alleged such discrimination in an amendment to its charge filed
originally in this proceeding , but this issue was not pressed by the Board . The Board's
trial counsel argued orally at the hearing that the Respondents further interfered with
the employees' rights of self-organization, by discouraging it through the employment
of the additional packers. No allegation of such unfair practice is contained in the
complaint and the Trial Examiner does not consider that the matter was fully litigated
at the hearing. No finding is made that this asserted unfair practice was a violation of
Section 8 (1) of the Act.
m Compare Steele v. Louisville d Nashville Railroad Company, 323 U. S. 192 ; Southern
Steamship Company V. N. L. R. B., 316 U. S. 81. at p . 47; American News Company, Inc.,
55 N. L. R. B. 1302 ; also see Bethlehem-Alameda Shipyard, Inc., et at., 53 N. L. R. B. 999;
Laru8 A Brother Company, Inc., 54 N . L. R. B. 1345 at V. 1348.
SOUTH TEXAS PRODUCE COMPANY 1457
Foreman Gullion 's remarks to the packers in March 1944 clearly disclosed
the Respondents' disapproval of the Union and their opposition to the employees
having memberships therein. It was an attempt to settle the employees ' choice
on the issue of unionization , and as such was interference proscribed by the
Act. It was timed to register in the employees' minds when looking forward
to employment during the next citrus season ; it forecast Gullion's talk with
Anderson in the boxcar on October 21st, which likewise was an act of inter-
ference with the employees ' right of unionization Later, Dougherty utilized
the Respondents ' economic power to restrain the employees in self-organization,
when he requested Potts to observe and report to him any further activity,
when he questioned Dick about being involved in the "mess" in the shed, and
warned her against such activity before permitting her to resume her work,
and when he admonished Harr against joining the Union. S'Vhittenburg simi-
larly threatened discharge to all union packers, referring to the old packers,
because he disapproved of their concerted activity, legitimately engaged in for
an economic purpose. The Respondents' course of conduct within the brief
period preceding November 6, manifested an anti-union animus on the part of
the management which carried it beyond the sphere of a legitimate interest in
attaining efficient and economic production , to the place where they trans-
gressed upon the employees' rights of self-organization for betterment of their
working conditions
No circumstance was disclosed in the evidence, relating to the Respondents'
practices in either words or deeds , that would render them innocuous ; and
none that would give them a significance other than that which is the ordinary
effect of the peremptory conduct of an employer in dealing with his employees
By their practices , the Respondents have interfered with, restrained, and
coerced their employees in the exercise of the rights guaranteed them in Section
7 of the Act.
J. Former hearing as a bar
The Respondents , by the plea in bar in their answer to the complaint, seek
to avoid a determination , as a result of the instant hearing, of responsibility
for their unfair labor practices. Section 10 of the Act grants full power to the
Board to prevent any person from engaging in any unfair labor practice
affecting commerce , without such legalistic limitations. The facts relied on
by the Respondents , disclosed in the record in this case , do not constitute a
meritorious defense These allegations in their answer should be dismissed.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
It is found that the activities of the Respondents set forth in Section III,
above, occurring in connection with the operations described in Section I, above,
have a close , intimate , and substantial relation to trade, traffic , and commerce
among the several States , and tend to lead to labor disputes burdening and
obstructing commerce and the free flow of commerce,
V. THE REMEDY
Since it has been found that the Respondents have engaged in certain unfair
labor practices it will be recommended that they cease and desist therefrom
and take certain affirmative action designed to effectuate the purposes of the
Act.
a86572 -46-93
1458 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Since it has also been found that the Respondents discriminated in regard
to the hire and tenure of employment of Harvey Anderson , it will be recom-
mended that the Respondents offer him full and immediate reinstatement to his
former or substantially equivalent position without prejudice to his seniority
or other rights or privileges . It will be further recommended that the Respond-
ents make him whole for any loss of pay he may have suffered by reason of
such discrimination by payment to him of a sum of money equal to the amount
he normally would have earned as wages from the date of the discharge to
the date of Respondents ' offer of reinstatement , less his net earnings 16 during
such period.
Upon the foregoing findings of fact and upon the entire record in the case,
the undersigned makes the following:
CONCLUSIONS OF LAw
1. Texas Fruit and Vegetable Workers Union, Local 35, F. T. A. A. W. U. A.,
formerly U. C. A. P. A. W. A., affiliated with the Congress of Industrial Organi-
zations, is a labor organization within the meaning of Section 2 ( 5) of the Act.
2. By discriminating in regard to the hire and tenure of employment of
Harvey Anderson, and thereby discouraging membership in Texas Fruit and
Vegetable Workers Union, Local 35, U. C. A. P. A. W. A.-C. I. 0., the Respond-
ents have engaged in and are engaging in unfair labor practices within the
meaning of Section 8 (3) of the Act.
3. By interfering with, restraining, and coercing its employees in the exer-
cise of the rights guaranteed them in Section 7 of the Act, the Respondents
have engaged in and are engaging in unfair labor practices within the meaning
of Section 8 (1) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 (6) and (7) of the Act.
RECOMMENDATIONS
Upon the basis of the foregoing findings of fact and conclusions of law, and
upon the entire record in the case, the undersigned recommends that the Re-
spondents, H. E. Whittenburg and W. S. Dougherty, partners doing business as
South Texas Produce Company, McAllen, Texas, their agents, successors, and
assigns shall:
1. Cease and desist from :
(a) Discouraging membership in Texas Fruit and Vegetable Workers Union,
Local 35, affiliated at present with F. T. A. A. W. If. A.-C. I. 0., or in any
other labor organization of its employees , by discriminatorily discharging any
of its employees , or in any other manner discriminating in regard to their hire
or tenure of employment or any term or condition of employment ;
(b) In any other manner interfering with, restraining , or coercing its
employees in the exercise of the right to self-organization , to form labor organi-
zations, to join or assist Texas Fruit and Vegetable Workers Union, Local 35,
16 By "net earnings" is meant earnings less expenses , such as for transportation, room,
and board , incurred by an employee in connection with obtaining work and working else-
where than for the Respondents, which would not have been incurred but for his unlawful
discharge and the consequent necessity of his seeking employment elsewhere . See Crossett
Lumber Company, 8 N. L. R. B. 440 . Monies received for work performed upon Federal,
State , county, municipal , or other work-relief projects shall be considered as earnings.
See Republic Steel Corporation v. N. L It. I3., 311 U. S. 7.
SOUTH TEXAS PRODUCE COMPANY 1459
affiliated at present with F. T. A. A. W. U. A.-C. I. 0., or any other labor
organization, to bargain collectively through representatives of their own
choosing, and to engage in concerted activities for the purpose of collective
bargaining or other mutual aid or protection as guaranteed in Section 7 of the
Act.
2. Take the following affirmative action, which the undersigned finds will
effectuate the policies of the Act :
(a) Offer Harvey Anderson immediate and full reinstatement to his former
or substantially equivalent position, without prejudice to his seniority or other
rights and privileges;
(b) Make whole Harvey Anderson for any loss of pay he may have suffered
by reason of the Respondents' discrimination in regard to his hire and tenure
of employment, by payment to him of a sum of money equal to that which he
normally would have earned as wages from the date of his discharge to the
date of the Respondents' offer of reinstatement, less his net earnings during
such period ;
(c) Post at their plant at McAllen, Texas, copies of the notice attached
hereto, marked "Appendix A." Copies of said notice, to be furnished in English
and Spanish by the Regional Director for the Sixteenth Region, shall, after
being duly signed by the Respondents' representative, be posted by the Respond-
ents immediately upon receipt thereof, and maintained by them for a period
ending (60) consecutive days after the beginning of the packing season next
following the posting of said notice. Said notice shall be posted in conspicuous
places, including all places where notices to employees are customarily posted.
Reasonable steps shall be taken by the Respondents to insure that said notices
are not altered, defaced, or covered by any other material;
(d) Notify the Regional Director for the Sixteenth Region in writing within
ten (10) days from the receipt of this Intermediate Report what steps the
Respondents have taken to comply herewith,
It is further recommended that unless on or before ten (10) days from the
date of the receipt of this Intermediate Report, the Respondents notify said
Regional Director in writing that they will comply with the foregoing recom-
mendations, the National Labor Relations Board issue an order requiring the
Respondents to take the action aforesaid.
It is further recommended that the allegations of matters in the nature of
a plea in bar, contained in the Respondents answer, be dismissed.
As provided in Section 33 of Article II of the Rules and Regulations of the
National Labor Relations Board, Series 3, as amended, effective July 12, 1944,
any party or counsel for the Board may within fifteen (15) days from the
date of the entry of the order transferring the case to the Board, pursuant
to Section 32 of Article II of said Rules and Regulations, file with the Board,
Rochambeau Building, Washington 25, D. C., an original and four copies of
a statement in writing setting forth such exceptions to the Intermediate Report
or to any other part of the record or proceeding (including rulings upon all
motions or objections) as lie relies upon, together with the original and four
copies of a brief in support thereof. Immediately upon the filing of such
statement of exceptions and brief, or both, the party or counsel for the Board
filing the same shall serve a copy thereof upon each of the other parties and
shall file a copy with the Regional Director. As further provided in said Sec-
tion 33, should any party desire permission to argue orally before the Board,
1460 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
request therefor must be made in writing within ten ( 10) days from the date
of the order transferring the case to the Board.
MELTON BOARD,
Trial Examiner.
Dated June 22, 1945.
"APPENDIX A"
NOTICE TO ALL EMPLOYEES PURSUANT TO THE RECOMMENDATIONS OF A
TRIAL EXAMINER
of the National Labor Relations Board, and in order to effectuate the policies
of the National Labor Relations Act, we hereby notify our employees that :
We will not in any manner interfere with, restrain , or coerce our employees
in the exercise of their right to self-organization , to form labor organiza-
tions , to join or assist Texas Fruit and Vegetable Workers Union , Local 35,
F. T. A. A. W. U. A.-C. I. 0., or any other labor organization , to bargain
collectively through representatives of their own choosing , and to engage
in concerted activities for the purpose of collective bargaining or other
mutual aid or protection.
We will offer to the employees named below immediate and full reinstate-
ment to their former or substantially equivalent positions without prejudice
to any seniority or other rights and privileges previously enjoyed, and
make them whole for any loss of pay suffered as a result of the
discrimination.
Harvey Anderson
All our employees are free to become or remain members of the above-named
union or any other labor organization . We will not discriminate in regard to
hire or tenure of employment or any term or condition of employment against
any employee because of membership in or activity on behalf of any such
labor organization.
H. E. WHITTENBURG and W . S. DOUGHERTY , partners
doing business as SOUTH TEXAS PRODUCE COMPANY,
Employer.
Dated ..................... By ..........................................
(Representative ) ( Title)
NOTE : Any of the above-named employees presently serving In the armed
forces of the United States will be offered full reinstatement upon application
in accordance with the Selective Service Act after discharge from the armed
forces.
This notice must remain posted for 60 days from the date hereof , and must
not be altered , defaced, or covered by any other material.