Valley Fruit Co.

National Labor Relations Board - Board Decisions

Dec 13, 1944

59 N.L.R.B. 896 (N.L.R.B. 1944)

In the Matter of EDDIE EHRHARDT, Roy WEIR AND MRS. IVY WEIR,
CO-PARTNERS, DOING BUSINESS AS VALJ,EY FRUIT COMVIPANY and
LOCAL 35, TEXAS FRUIT & VEGETABLE WORKERS UNION, UCAPAWA-
CIO
Case No. 16-C-1022-Decided December 13, 1944
Mr. Robert F. Proctor , for the Board.
Kelley c0 Looney, by Messrs. J. C. Looney and Robert J. Enoclzs, of
Edinburg , Tex., and Strickland , Ewlers cC Wilkins, by Messrs. Scott
Toothaker and J . F. Ewers, of Mission, Tex ., for the respondent.
Mr. Otis G. Nation , of Mercedes , Tex., and Mrs . Elizabeth Sasuly,
of Washington , D. C., for the Union.
Miss Kate Wallach , of counsel to the Board.
DECISION
AND
ORDER
STATEMENT OF THE CASE
Upon an amended charge duly filed on March 20, 1944, by Local 35,
Texas Fruit & Vegetable Workers Union, UCAPAWA-CIO, herein
called the Union, 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 21, 1944; against
Eddie Ehrhardt,' Roy Weir and Mrs. Ivy Weir, co-partners, doing
business as Valley Fruit Company, Pharr, Texas, herein called the
respondent, alleging that the respondent had engaged in and was
engaging in unfair labor practices affecting commerce, within the
meaning of Section 8 (1) and (3) and Section 2 (6) and (7) of the
National ' Labor Relations Act, 49 Stat. 449, herein called the Act.
Copies of the complaint and Notice of Hearing thereon were duly
served upon the respondent and the Union.
With respect to the unfair labor practices, the complaint alleged
in substance : (1) that, on or about December 14, 1943, the respondent
refused to employ Bernice Hughes and has since refused to employ-her
I This name appeared in the complaint as Eddie Ehrhart. At the hearing the complaint
was amended without objection to show the name asat appears above.
59 N L R B., No. 174.
896
VALLEY FRUIT COMPANY 897
for the reason that she was a member of the Union or because she had
engaged in activities on behalf of the Union; (2) that, from on or
about December 14, 1943, to March 21, 1944, the respondent vilified,
disparaged, and expressed disapproval of the Union and interrogated
its employees and prospective employees, orally and through its em-
ployment application, concerning their union affiliation; and (3) that,
by these acts and statements, the respondent interfered with, re-
strained, and coerced its employees in the exercise of the rights guar-
anteed in Section 7 of the Act., On April 27, 1944, the respondent filed
an answer in which it admitted certain allegations of the complaint
as to the nature of its business but denied that it had committed any
unfair labor practice.
Pursuant to notice, a hearing was held at Edinburg, Texas, on April
27 and 28, 1944, before John H. Eadie, the Trial Examiner duly desig-
nated by the Chief Trial Examiner. The Board; the respondent, and
the Union were represented and participated in the hearing. Full
opportunity to be heard, to examine and cross-examine witnesses, and
to introduce evidence bearing upon the issues was afforded all parties.
At the conclusion of all testimony, counsel for the Board moved to
amend the complaint to conform to the proof. Counsel for the re-
spondent made a similar motion with respect to the answer. Both
motions were granted. The respondent moved to dismiss certain alle-
gations of the complaint for lack of proof, and the complaint as a
whole on jurisdictional grounds.2 Ruling on these motions was re-
served by the Trial Examiner, who denied the motions in his Inter-
mediate Report: During the course of the hearing the Trial Exam-
iner made rulings on other motions and on objections to the admission
of evidence. The Board has reviewed the rulings of the Trial Exam-
iner made during the course of the hearing and finds that no preju-
dicial error was committed. The rulings are hereby affirmed.
On July 15, 1944, the Trial Examiner filed his Intermediate Report,
copies of which were duly served upon the respondent and the Union,
finding that the respondent had engaged in and was engaging in unfair
labor practices, within-the meaning_ of Section 8 (1) and (3) of the
Act; and recommending that the respondent cease and desist therefrom
and take certain affirmative action designed to effectuate the policies
of the Act. o Thereafter, on August 7, 1944, the respondent filed excep-
tions to the Intermediate Report and a brief to support the exceptions.
Pursuant to notice and at the request of the respondent, a hearing for
2 The respondent. in its oral argument before the Board, contended that its employees are
agricultural laborers and, as such, are not within the coverage of the Act. This contention
is without merit See, for example. N. L R. B. v Tovrea Packing Co., 111 F (2d) 626
(C C A. 9), cert denied, 311 U S 668 North. Whittier Heights Citrus A44'n v. N. L R. B,
109 F (2d) 76 (C C A. 9),,cert. denied, 310 U. S. 632, rehearing on petition for certiorari
denied . 311 U. S. 724.
898 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the purpose of oral argument was held before the Board at Washing-
ton, D. C., on November 14, 1944. The respondent and the Union
appeared and participated in the argument.
,The Board has considered the respondent's exceptions to the Inter-
mediate Report and its briefs, including a brief submitted to the Trial
Examiner, and insofar as the exceptions are consistent with the find-
ings, conclusions, and order set forth below, finds them to have merit,
and insofar as they are inconsistent therewith, finds no merit in them.
Upon the entire record in the case, the Board makes the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
The respondent, Eddie Ehrhardt, Roy Weir and Mrs. Ivy Weir, co-
partners, doing business under the name and style, of Valley Fruit
Company, with principal office and packing plant at Pharr, Texas, is
engaged in the packing of citrus fruits. The respondent employs
about 30 persons at its Pharr establishment. During the 1943 season,
the respondent's gross sales of packed citrus products exceeded $800,000,
of which approximately 50 percent represented sales and shipments
to customers outside the State of Texas.
In its packing operations, the-respondent uses raw materials, such
as excelsior, paper bags or containers, cotton or mesh bags, lumber,
boxes, and related products. Approximately 50 percent of 'such raw
materials is obtained from sources outside the State of Texas. Dur-
ing normal years of operation, the respondent's purchases of raw mat-
terials amount to about $50,000 a year.
II. THE LABOR ORGANIZATION INVOLVED
Local 35, Texas Fruit & Vegetable Workers Union, UCAP AWA-
CIO, is a labor organization which admits to membership employees
of the respondent.
III. THE UNFAIR LABOR PRACTICES
A. Interference, restraint, and coercion
1. The employment application blanks
Bernice Hughes and her husband, Jesse Hughes, applied to the
respondent for employment as fruit packers sometime in October 1942,
at the beginning of the 1942-1943 fruit-packing season. At that time,
the respondent's employment application blanks contained the ques-
tion : "Are you a member of a union-AFL--CIO-." Both appli-
cants stated in writing that they were members of the AFL. They
VALLEY FRUIT COMPANY 899
were offered jobs as fruit packers but declined to accept the offers at
that time.
The respondent continued the use of such application blanks con-
taining the question concerning union affiliation until sometime in
January 1944, when, at the suggestion of an employee of the Board, it
eliminated from its employment application blanks the question con-
cerning union affiliation.
The Trial Examiner found, and we agree, that the respondent's use
of the question concerning union affiliation in its employment applica-
tion form constitutes interference, restraint, and coercion in violation
of Section 8 (1) of the Act.
The respondent contends that such alleged violation of Section 8 (1)
of the Act falls outside the scope of the complaint since Hughes and
his wife had filed their application for employment with the respond-
ent more than a year prior to the time alleged in the complaint as the
date when the respondent first questioned its employees concerning
-union affiliation. The contention is without merit. The respondent
did not discontinue the use of the objectionable question until some-
time in January 1944. Furthermore, the respondent actually used
the form in December 1943, when three women applied for jobs as
fruit packers and were furnished with employment application blanks
by Foreman Dan Wise.' We find that the form of application blank
containing the objectionable question with respect to union affiliation
was actually used by the respondent in the period alleged in the com-
plaint.
The respondent also contends that it should not be held accountable
for the use of such application form for the reason that it has elimi-
nated the objectionable question,' and that it did not deny anyone
employment as a result of the use of such form. We find the respond-
ent's contentions without merit. We further find the respondent's
final contention that it used the application form as a guide in deter-
mining an applicant's ability likewise lacking in merit in view of the
fact that the questionnaire called for information as to which of two
labor organizations the applicant belonged.
2. Statements by Foremen Wise and Eubank
On December 13, 1943, after the beginning of the 1943-1944 packing
season, Bernice Hughes applied again to the respondent for employ-
ment as a fruit packer. In the interim she had changed her union
affiliation from the AFL to the CIO, of which she had become an
a These three applicants were not offered jobs thereafter.
See Consolidated Edison Co v N. L R B ., 303 U . S 197, 230, in which the Supreme
Court upheld a Board order barring resumption of employment of "outside investigating
agencies" despite the employer's objection that it had discontinued the practice.
900 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
officer.-' She discussed employment opportunities with Dan Wise, fore-
man of the respondent's orange shed; and Hughes and Wise were later
joined in the discussion by Dick Eubank, foreman of its grapefruit
shed, and Eddie Ehrhardt, one of the copartners of the respondent 6
As to the discussion which ensued, Hughes testified that she was
asked by Foreman Wise whether she was a member "of this Union
around here," and that, at the same time, Wise stated that he had
"instructions from the office not to hire anyone that belongs to the
Union." Hughes further testified that, when she answered that she
did not belong to that "old Union," and that it no longer had any
existence, Wise asked Eubank as to the accuracy 'of Hughes' statement
with respect to the non-existence of the labor organization, and Embank
replied.: "Hell, no, they had a big meeting last night." Hughes fur-
ther testified' that she thereupon stated : "Why, you're wrong there,
Mr. Eubanks [sic] because we don't have that old Union any more.
It's the CIO now;" and that Eubank replied: "That's worse than
ever. * * * Some of my best friends belonged to this old Union,
but I don't want anybody in here believing in that damned Union
around me." Wise and Eubank denied having made the statements
attributed to them by Hughes. Ehrhardt testified, in part, that he
heard Hughes talk about a union meeting held on the previous night.
We credit, as did the Trial Examiner, Hughes' testimony rather than
the denial of Wise and Eubank and find that they made the statements
substantially as testified to by Hughes. We also find, as did the Trial
Examiner, that by such statements of Eubank and Wise, the respond-
ent interfered with, restrained, and coerced its employees in violation
of section 8 (1) of the Act.
B. The alleged discriminatory refusal to hire Bernice Hughes
In the discussion which took place on December 13, 1943, Foreman
Wise told Hughes that he "probably" needed an orange packer and
that he "thought" he could give her a job. He also stated that Hughes
would need a statement of availability or a release. It is clear that,
even if Hughes' testimony as related above is fully credited, Wise did
not offer her a job at that time.
On the following day, December 14, 1943, Bernice Hughes accom-
panied by her husband, Jesse Hughes, returned to the respondent's
plant at closing time. According to Bernice Hughes' testimony, she
was asked by Wise whether she had a statement certifying that she
did not belong to the Union, a statement which Wise, according to
Hughes, had requested from her on the preceding day. On direct
" Precisely when she became an office holder does not appear from the record It is clear,
however that the Union did not come into existence until the early part of December 1943.
e Wise has authority to recommend hiring or discharging , Eubank has authority to hire
subject to the respondent ' s approval.
VALLEY FRUIT COMPANY 901
examination Jesse Hughes testified that Wise, on December 14, asked
his wife "for a statement." On cross-examination, following a short
recess in the taking of the testimony, Jesse Hughes added to his-prior
testimony the words : "that she did or did not belong to a union."
Wise denied that he had requested such a statement either on Decem-
ber 13 or 14. Wise testified that on December 14, Hughes handed him
a yellow paper and said : "Here is my release."
The paper, containing a letter bearing the signature.of Bernice
Hughes and addressed to Wise, purported to review the events which
had transpired on December 13, and advised Wise that she was a
member of the Union and that a failure on the part of the respondent
to hire her would be treated as an unfair labor practice.7
Wise read the letter, made some remark's and then took the letter to
the respondent's office. About 10 minutes later, Eddie Ehrhardt ap-
peared and told Hughes that the respondent did not need any packers.
Upon substantially these facts, the Trial Examiner found, as the
complaint alleged, that the respondent refused to employ Bernice
Hughes because of her union activities. We do not agree.
In view of the use of the question concerning union affiliation in the
employment application form and in view of the above-mentioned
statements of Foremen Wise and Eubank, it may well have been that
the conversations with Bernice Hughes contained evidence of intent
to discriminate in regard to hire because of her union affiliation. How-
ever, we find that the respondent has not actually discriminated in this
respect since no job was available for her.
As stated above, in the discussion which took place on December 13,
1943, Foreman Wise told Hughes that he "probably" needed an orange
packer and that he "thought" he could give her a job. He also stated
that Hughes would need a statement of availability or a release. It is
4 The letter which had been drafted on December 14, with the aid of a union representa-
tive, read, in part, as follows :
Yesterday I called on you for a job as packer at that plant and during the conversa-
tion you inquired as to whether or not I was a member of tli CIO or any Union.
You stated further that if I had a release and was not a member of the Union you
would hire me I told you the old Union (meaning the AFL) had folded up. About
this time Mr. Eubanks walked up and said that Union meetings were still being held
and that one had been held yesterday I said that that was the CIO Mr Eubanks
then stated "That's worse than ever. I just don't want anybody around me that
believes in such things "
You then said • "I have been instructed not to hire any Union packers."
Please be advised that I am now a member and was at that time in good standing
with the CIO Please be further advised that I am hereby applying for my job and
your refusal to hire me will be construed to mean you are refusing because I am a
member of the Union
Your refusal will also mean that we will file unfair labor charges against the com-
pany and you as their agent for refusal to hire.
You no doubt are familiar with the National Labor Relations Act in regard to this
anti-union act ; even though you had these orders from your superior.
8 As to the remark, Hughes testified that Wise asked her "What are you trying to do, put
the screws to me" ; Wise testified that he asked Hughes whether she was trying to "throw
somebody a curve." Since we do not consider either version significant, we 7aake no finding
as to what Wise said In this instance.
902 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
clear that, even if Hughes' testimony as related above is fully credited,
Wise did not offer her a job at that time.'
The record further 'shows that shortly after Hughes applied for a
job as a fruit packer, three other women applied. Foreman 'Vise
accepted their applications but none of the applicants was offered
_a job by the respondent. Thereafter, on or about January 10 or 11,
1944, the respondent employed for a few days a woman packer who
had worked for the respondent in previous seasons and who had
been promised work upon her return for the 1943-1944 season. Fore-
man Eubank testified that it was the respondent's practice to engage
a full complement of workers at the beginning of a season ; that addi-
tional help was seldom needed; and that, during the 1943-1944 season,
he had not replaced several workers who had dropped employment in
the grapefruit shed because there was not enough work available for
the remaining employees. Under these circumstances we find that
there was no vacancy at the respondent's plant at the time Hughes
applied for a job.
Since Hughes was not offered a job either on December 13 or 14,
1943, and since there was no vacancy at the respondent's plant at the
time she applied for a job, we find that the evidence does not sustain
the allegation in the complaint that the respondent unlawfully re-
fused to employ Bernice, Hughes. We shall therefore dismiss the
complaint insofar as it alleges that the respondent discriminated
against Bernice Hughes within the meaning of Section 8 (3) of the
Act. However, in view of the respondent's past practice of unlaw-
fully scrutinizing applicants for employment for possible union affili-
ation, the respondent is hereby cautioned not to discriminate against
Bernice Hughes because of her union activities should she apply for
employment with the respondent in the future.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
We find that the activities of the respondent set forth in Section III,
above, occurring in connection with the operations of the respondent
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.
6 The Trial Examiner credited Hughes' testimony that Wise requested a statement that
she was not a member of the Union Although the letter presented to Wise purported to
contain a full account of the occurrences on the previous day, it does not contain a request
for such a statement . Furthermore , such a statement would have duplicated information
called for in the employment application blank. We find that Wise did not ask Hughes for
a separate statement that she was not a member of a union.
Neither do we believe that Wise changed his mind with respect to employing Hughes
when she revealed her union affiliation in the letter presented to Wise on December 14. An
attentive listener would have detected the fact of her union affiliation from her statement
on December 13, "We don't have that old union any more" and from the knowledge of union
activities which she otherwise displayed.
VALLEY FRUIT COMPANY
V. THE REMEDY
903
Having found that the respondent has engaged in unfair labor
practices, we shall order it to cease and desist therefrom and to take
certain affirmative action, which we find will effectuate the policies
of the Act.
We have found that the respondent unlawfully required applicants
for employment to supply information on employment blanks as to
their union affiliation. The respondent has meanwhile discontinued
the use of the objectionable application blank. We shall therefore
order the respondent to cease and desist, in the absence of a contract
with a labor organization requiring membership therein as a- condi-
tion of employment, from resuming in the future the practice of
requiring applicants for employment to supply information as to
their union affiliation by the use of such application blanks or other-
wise.
Upon the basis of the above findings of fact and upon the entire
record in the case, the Board makes the following :
CONCLUSIONS OF LAW
1. Local 35, Texas Fruit & Vegetable Workers Union, UCAPAWA-
CIO, is a labor organization, within the meaning of Section 2 (5) of
the Act.
2. By interfering with, restraining, and coercing its employees in
the, exercise of the rights guaranteed in Section 7 of the Act, the
respondent has engaged in, and is engaging in, unfair labor practices,
within the meaning of Section 8 (1) of the Act.
3. The aforesaid unfair labor practices are unfair labor practices
affecting commerce, within the meaning of Section 2 (6) and (7)
of the Act.
4. The respondent has not discriminated with regard to the hire
or tenure of employment of Bernice Hughes, within the meaning of
Section 8 (3) of the Act.
ORDER
Upon the basis of the above findings of fact and conclusions of law,
and pursuant to Section 10 (c) of the National Labor Relations Act,
the National Labor Relations Board hereby orders thatthe respondent,
Eddie Ehrhardt, Roy Weir and Mrs. Ivy Weir, co-partners, doing
business as Valley Fruit Company, and their agents, successors, and
assigns shall :
1. Cease and desist from :
(a) Resuming in the future the practice of requiring applicants
for employment to furnish information as to their union affiliation;
904 -DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(b) In any other manner interfering with , restraining , or coercing
its employees in the exercise of the right to self-organization , to form
labor organizations , to join or assist Local 35, Texas Fruit & Vegetable
Workers Union, UCAPAWVA-CIO, or any other labor organization,
to bargain collectively through representatives of their own choosing,
and to engage in concerted activities for the purpose of collective bar-
gaining or , other mutual aid or protection , as guaranteed in Section 7
of the' Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act:
(a) Post immediately in conspicuous places throughout its plant
at Pharr, Texas, and maintain for a period of at least sixty ( 60) con-
secutive days from.the date of posting, notices to its employees stating :
(1) that the respondent will not engage in the conduct from which
it is ordered to cease and desist in paragraphs 1 (a) aiid ( b) of this
Order;
(b) Notify the Regional Director for the Sixteenth Region in
writing, within ten (10 ) days from the date of this Order, what steps
the respondent has taken to comply herewith.
AND IT IS FURTHER ORDERED that the complaint be, and it hereby is,
dismissed insofar as it alleges that the respondent discriminated against
Bernice Hughes within the meaning of Section 8 (3) of the Act.
a