Weinberger Banana Co., Inc.

National Labor Relations Board - Board Decisions

Dec 27, 1939

18 N.L.R.B. 786 (N.L.R.B. 1939)

In the Matter of WEINBERGER BANANA CO., INC., AND/OR WEINBERGER
SALES CO., INC., AND/OR THEIR SUCCESSORS , ASSIGNS, RECEIVERS,
TRUSTEES , TRUSTEES IN BANKRUPTCY , CREDITORS' COMMITTEE, OR
OTHER REPRESENTATIVES ACTING IN BEHALF OF EITHER OR BOTH and
UNITED DOCK AND FRUIT WORKERS' UNION
Cases Nos. C-785 and R-768.-Decided December 27,1939
Fruit Packing and Handling Industry-Employer Status : two corporations
commonly owned, controlled , and operated , one of which proceeds to do same
business with same employees of the other upon its going into liquidation, found
so interrelated as to be jointly and severally liable under Act for unfair labor
practices of both-Employee Status : not ordinarily terminated by payment of
wages after unloading of each boat , since paid -off workers customarily work
next boat-Interference , Restraint , and Coercion : threats of deputies paid and
controlled by companies to shoot or jail discriminatorily discharged employees
unless latter stayed off docks and out of parish-Discrimination : discharges and
refusals to reinstate or employ because of union membership and activity ;
charges of , dismissed as to 8 individuals , sustained as to 27 individuals ; strike
resulting in part from discriminatory discharges ; discriminatory refusals to
reinstate certain strikers upon application for reinstatement-Reinstatement
Ordered: for employees discriminated against and , upon application , for strikers ;
all persons employed since strike to be dismissed , if necessary ; preferential list
to be created for employees ordered reinstated if employment for them not
immediately available-Back Pay: awarded ( 1) employees discriminated against
(2) strikers , from 5 days after application for reinstatement until reinstated or
placed on preferential list-Remedial Order: special forms of : deputies and
watchmen : companies ordered to prohibit interference by them with exercise
by employees of rights guaranteed in Act ; means of access to docks : companies
ordered to provide employees reasonable means of access which do not operate
discriminatorily-Investigation of Representatives : employer 's unwillingness to
bargain collectively with Union , resulting in strike-Unit Appropriate for Col-
lective Bargaining : all dock employees , including foremen, and excluding office
and clerical employees , watchmen , paymasters , deputy sheriffs , and superin-
tendents ; no dispute as to-Election Ordered: date of election and pay roll to be
fixed when circumstances permit free choice of representatives unaffected by
unlawful acts of companies.
Mr. Samuel Lang, for the Board.
Mr. Charles T. Madison, Mr. Herman Agregaard, and Mr. Harry
F. Stiles, Jr., of New Orleans, La., for the respondents.
Mr. Robert Kramer, of counsel to the Board.
18 N. L. R. B., No. 92.
786
WVEINBE,RGEiR BANANA 'C0'1\IPANY, INC.
DECISION
ORDER
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
787
Upon charges and amended charges duly filed by United Dock and
Fruit Workers"Union, herein called the Union, the National Labor
Relations Board, herein called the Board, by the Regional Director
for the Fifteenth Region (New Orleans, Louisiana) issued its second
amended complaint, dated February 28, 1938, against Weinberger
Banana Co., Inc., New Orleans, Louisiana, and/or Weinberger Sales
Co., Inc., New Orleans, Louisiana, and/or their successors, assigns,
receivers, trustees, trustees in bankruptcy, or other representatives act-
ing on behalf of either or both; herein collectively called the respond-
ents, alleging that the respondents had engaged in and were engaging
in unfair labor practices affecting 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, accompanied by notices of hearing, were duly served
upon the respondents and the Union.
In respect to the unfair labor practices the complaint alleged in
substance (1) that on or about October 24 and 25, 1937, and there-
after, although a majority of the respondents' employees within an
appropriate unit had designated the Union as their representative for
the purposes of collective bargaining, the respondents, upon request,
refused to bargain collectively with the Union as the exclusive repre-
sentatives of such employees; (2) that at various times during
October, November, and December, 1937, the respondents discharged
and thereafter refused to reinstate 35 employees, because they had
applied for membership in, or were affiliated with, the Union and
because they had engaged in concerted activities with other employees
of the respondents for the purposes of collective bargaining and other
mutual aid and protection' and that by such discharges and refusals
to reinstate the respondents discriminated against such employees and
'The Board issued its original complaint , dated January 18, 1938, against Weinberger
Banana Company , Inc., alleging that it had engaged in and was engaging in unfair labor
practices within the meaning of Section 8 ( 1); (3), and ( 5) and Section 2 (6) and (7)
of the Act . The Board issued an amended complaint , dated February 24, 1938, incor-
porating four prior amendments to the complaint , dated respectively February 4, 8, 14,
and 24, 1938 , against Weinberger Banana Company , Inc., and Weinberger Sales Company,
Inc., alleging that they had engaged in and were engaging in unfair labor practices
within the meaning of Section 8 (1), (3), and (5) and Section 2 (6) and ( 7) of the Act.
Hereinafter, the second amended complaint is referred to as the complaint.
788 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
discouraged membership in the Union; (3) that on or about October
27, 1937, because of the above acts, more than 90 per cent of the
respondents' employees went on strike until December 15, 1937; and
(4) that by the above and other acts the respondents interfered with,
restrained, and coerced their employees in the exercise of the rights
guaranteed in Section 7 of the Act.
On November 15, 1937, the Union filed with the Regional Director
a petition, on January 17, 1938, an amended petition, on February
24, 1938, a second amended petition, and on February 28, 1938, a third
amended petition. The third amended petition alleged that a question
affecting commerce had arisen concerning the representation of em-
ployees of the respondents and requested an investigation 'and cer-
tification of representatives pursuant to Section 9, (c) of the Act.
On December 31, 1937, the Board, acting pursuant to Section 9 (c) of
the Act and Article III, Section 3, of National Labor Relations Board
Rules and Regulations-Series 1, as amended, ordered an investigation
and authorized the Regional Director to conduct it and to provide
for an appropriate hearing upon due notice, and, acting pursuant to
Article II, Section 37 (b), and Article III, Section 10 (c) (2), of
said Rules and Regulations, further ordered this proceeding con-
solidated for purposes of hearing with Case No. C-785, in which, as
set forth above, charges had been filed on October 29, 1937, by the
Union.2
On February 28, 1938, the respondents filed an answer to the com-
plaint denying that they had engaged in the alleged unfair labor
practices.
Pursuant to notice, a hearing was held at New Orleans, Louisiana,
on February 21, 23, and 28, and March 3, 4, 5, 7, and 8, 1938,3 before
D. Lacy McBryde, the Trial Examiner duly designated by the Board.
The Board and the respondents were represented by counsel and
participated in the hearing. Full opportunity to be heard, to ex-
amine and cross-examine witnesses, and to introduce evidence bearing
upon the issues was afforded all parties.
On February 28, 1938, Weinberger Sales Co., Inc., herein called
the Sales Company when referred to separately, moved that the pro-
ceedings be dismissed as to it on the grounds that it was a mere sales
agency, employing no dock workers, and that it was a separate and
distinct corporation, in no way the successor or legal representative
of Weinberger Banana Co., Inc., herein called the Banana Company
On February 28, 1938, the Board amended its order directing an investigation , hearing,
and consolidation , to conform to the amended complaint and second amended petition.
During the hearing, without objection by the respondents , the Board 's order was further
amended to conform to the second amended complaint and the third amended petition.
"No witnesses were called until March 3, the hearing being adjourned without the
taking of testimony on the preceding days, by agreement of all the parties.
WEINBERGER BANANA 'O01MPANY, INIC. 789
when referred to ' separately. The Trial Examiner reserved ruling
on this motion at the hearing, and denied it in his Intermediate
Report. For reasons hereinafter set forth,4 this ruling is hereby
affirmed. During the hearing, counsel for the Board moved to dismiss
the allegations of the complaint concerning the discriminatory dis-
charges of three employees, Ernest (Siki) Worthy, Joseph C. Perry,
and W. W. Minor. None of these employees appeared at the hearing,
nor was any evidence introduced concerning their discharges. The
Trial Examiner granted this motion. The ruling is hereby affirmed.
During the hearing counsel for the Board moved to dismiss the
allegation of the complaint that the respondents had engaged in
unfair labor practices within the meaning of Section 8 (5) of the
Act. The Trial Examiner granted this motion. The ruling is hereby
affirmed . During the course of the hearing the Trial Examiner made
a number of rulings on other motions and on objections to the admis-
sion of evidence. • The Board has reviewed all the rulings of the Trial
Examiner and finds that no prejudicial errors were committed. The
rulings are hereby affirmed.
After the close of the hearing, the Trial Examiner filed his Inter-
mediate Report, dated June 20, 1938, finding that the respondents had
engaged in and were engaging in unfair labor practices within the
meaning of Section 8 (1) and (3) and Section 2 (6) and (7) of the
Act.' He further found that the respondents had not engaged in
unfair labor practices in regard to the discharges of three employees,
John Serra, Robert Jackson, and Everitt Green 6 and recommended
the dismissal of these allegations of the complaint. He also recom-
mended that the respondents cease and desist from their unfair labor
practices; and that they offer full reinstatement with back pay to 26
employees, and back pay to 2 other employees.
Subsequently the Sales Company filed exceptions, dated July 29,
1938 , to the Intermediate Report and a brief in support of its excep-
tions. Neither the Banana Company nor the Union filed exceptions.
On December 8, 1938 , pursuant to notice duly served on all the par-
ties, oral argument, in which counsel for the Sales Company partici-
pated, was had before the Board at Washington, D. C. During the
course of the argument, the Board granted a motion by counsel for
4 See Section I, infra.
I In his Intermediate Report the Trial Examiner also found that the respondents had
engaged in and were engaging in unfair labor practices within the meaning of Section
8 (5) of the Act, and omitted any mention of the fact that, as set forth above, he had
dismissed this allegation of the complaint during the hearing on motion of counsel for
the Board. Since this allegation was dismissed on March 8, 1938, before the respondents
had concluded the presentation of their case, we believe that the Trial Examiner erred
in disregarding this dismissal in his Intermediate Report. Therefore, the dismissal, as
stated above, is affirmed.
IIn his intermediate Report the Trial Examiner made no findings in regard to the
alleged discriminatory discharge of one employee, William Cramer.
790 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Sales Company to incorporate into the record a certified copy
of certain proceedings had in the Civil District Court of Louisiana
relating to the liquidation of the Banana Company. The Board has
considered the brief filed in support of the exceptions to the Inter-
mediate Report and has reviewed .all the exceptions and finds them
to be without merit except as they are consistent with the findings,
conclusions, and Order set forth below.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENTS
The Banana Company is a Louisiana Corporation, incorporated
in 1932. Prior to December 15, 1937, it was engaged in. the pur-
chase, importation, packing, and sale of bananas and pineapples.
During 1937 the Banana Company handled over 100,000 tons of
fruit, all of which it imported into Louisiana from Mexico, and 80
per cent of which it sent to points outside Louisiana.
The Sales Company is a Louisiana corporation, incorporated on
November 10, 1937. It is engaged in the purchase, importation,
packing, and sale of bananas. During the period from December 15,
1937, to the date of the hearing, it imported 425 tons of fruit weekly
into Louisiana from Mexico, 80 per cent of which it sent to points
outside Louisiana.
Charles Weinberger is president of both respondents and respon-
sible for their policies. He owns 90 per cent of the total capital
stock, amounting to $10,000, of the Banana Company, and all the
capital stock, amounting to $5,000, of the Sales Company.'
About the middle of December 1937, the Banana Company ceased
to buy, import, pack, or sell fruit, and became totally inactive. Sub-
sequently, on March 30, 1938, after the close of the hearing in this
proceeding, pursuant to the requests of the stockholders, the Civil
District Court for the Parish of Orleans in Louisiana appointed
three liquidators to dissolve the Banana Company. There is no in-
dication in the record that the Banana Company has been dissolved.8
According to Weinberger, in November 1937, he incorporated the
Sales Company because he knew that the Banana Company "was
7 Title to four shares of Sales Company stock is nominally held by two persons to whom
Weinberger supplied funds for the purchase of these shares.
8 No claim was made that the liquidation proceedings operate to stay the instant pro-
ceedings before this Board . Such a claim if made would not be well founded . ' Cf. Matter
of Luckenbach Steamship Co., Inc . and Gatemen, Watchmen and Miscellaneous Waterfront
Workers Union, Local 38-124, 2 N. L. R. B. 181; Matter of Pacific Steamship Co. and
Sailors' Union of The Pacific , 2 N. L. R. B. 214 ; Matter of Ralph A. Freundlich , Inc. and
Max Marcus, 2 N. L. R. B. 802; Matter of Grower-Shipper Vegetable Ass'n of Central
California and Fruit and Vegetable Workers ' Union of California, No. 18211, 15 N. L. R. B.
322.
WEST BEiRGE.R BANANA COMPANY, INC. 791
liable to be sued [and] put out of business by its creditors" and be-
cause, in the event of such a contingency, he wished to be in a posi-
tion to "take care of my trade and continue to do business."
Coincident with the Banana Company's cessation of business in
December 1937, the Sales Company, previously dormant, for the first
time became active. The Sales Company has offices in a building in
New Orleans, owned by the Banana Company, in which the latter
company also has its offices. Up to the time of the hearing, the Sales
Company had paid the Banana Company no rent for the use of offices
in this building.9 The Banana Company had used docks at Chal-
mette Slip in St. Bernard Parish, Louisiana, owned by the New
Orleans Terminal Company. The day that the Banana Company
ceased to do business and to use these docks, the Sales Company
began to use them to unload and pack fruit. That same day the
Sales Company began to use on these docks unloading machinery and
other equipment valued at $30,000, which were owned by the Banana
Company. Up to the time of the hearing the Sales Company had
paid the Banana Company nothing for the use of this equipment.-
During the period between the cessation of business by the Banana
Company and the date of the hearing, the Sales Company also used
other supplies of the Banana Company, such as pay-roll sheets and
work buttons, paying the latter nothing for such supplies it
Weinberger testified that, so far as possible, he tried "to take
care" of the employees of the Banana Company by hiring them for
the Sales Company. Joseph Arcana, wharf superintendent of the
Banana Company, testified that Weinberger merely informed him
one day in 1937 that he was working for the Sales Company instead
of the Banana Company, which had ceased to do business. Frank
Cipriano, a foreman, Bernard Thomas Patton, a deputy, Cecil San-
tana, superintendent of the box department, William Richard, the
timekeeper, and Joseph Di Carlo, the paymaster, all had experiences
similar to Arcana's. Indeed, the evidence is clear that when the
Banana Company became inactive its officials and supervisory em-
ployees were hired at once in substantially similar positions by the
Sales Company. Also, substantially all the other employees of the
Banana Company, including those working on the docks, immedi-
ately began to work for the Sales Company when the Banana Com-
pany became inactive. The business of the two companies-the im-
9 This building, was mortgaged , and, at the time of the hearing, foreclosure proceedings
had been instituted . Neither the Sales Company nor the Banana Company had paid any
rent to the mortgagee.
10 This equipment had been attached for taxes by the United States Government, which
permitted the Sales Company to use it in return for keeping it in repair . On April 11,
1938, the liquidators of the Banana Company leased this equipment to the Sales Company.
11 On August IT, 1939, the liquidators sold these supplies and other assets, including
trucks , to the Sales Company.
283029-41-vol. 18--51
792 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
portation of fruit, mainly bananas, from Mexico, and the packing
and sale of such fruit-is substantially similar, although the Sales
Company's volume of business is less than the Banana Company's
had been. The Sales Company uses the same boats as did the
Banana Company to import fruit. Weinberger testified that the
Sales Company did practically all its business on a commission basis.
He admitted, however, that at certain seasons of the year the Banana
Company had done most of its business on a commission basis; that
at other times at least 30 per cent of its business had been on com-
mission ; and that for 2 or 3 weeks prior to the hearing, all the busi-
ness of the Sales Company had consisted of outright purchases of
bananas and their importation. Moreover, even in the case of busi-
ness done on a commission basis, all dock labor is hired, paid, and
supervised exclusively by the Sales Company, although eventually
the sellers of the fruit repay the Sales Company for the expenses it
has thereby incurred. Finally, Weinberger testified that some,
though not all, of the customers of the two companies are identical.
On the basis of the facts set forth above, we find that, for the pur-
poses of the Act, the Sales Company is a continuation of the Banana
Company, and that each must be held responsible for the unfair
labor . practices, if any, of the other. Both companies are owned,
controlled, and managed by one man, Weinberger. Their super-
visory and other employees are almost identical. The business of
both, their equipment, machinery, supplies, customers, products, and
facilities, are substantially the same. It is not surprising, therefore,
to find, as subsequently set forth, that the labor policies of the two
companies are identical, so far as the record shows. To the super-
visory employees and to the dock employees here involved, the in-
activity of the Banana Company and the subsequent activity of the
Sales Company, have brought no material changes. As Arcana and
Di Carlo testified, the work on the docks remained the same when
the companies changed : Weinberger remained the actual employer,
and the same work was done, by the same employees, under the
same supervisors and conditions, with the same machinery, facilities,
and products. The change in corporate name and structure resulted
in no material change in the employer-employee relationship. This
relationship is our chief consideration here, since it is all important
in effectuating the purposes and policies of the Act 12 Under these
u Cf. N. L. R. B. v. Arthur L. Colten, 105 F. (2d) 179 (C. C. A. 0, 1939), enf'g,
platter of Arthur L. Colten and Amal. Clothing Workers of Amer., 6 N. L. R. B. 355,
where the Court said: "It is the employing industry that is sought to be regulated and
brought within the corrective and remedial provisions of the Act in the interest of
industrial peace . . . It needs no demonstration that the strife which is sought to be
averted is no less an object of legislative solicitude when contract , death, or operation
of law brings about change of ownership in the employing agency." In the instant case
there was not even a change in ownership since Weinberger owned, controlled, and
managed both corporations.
WEINBERGER BANANA ICO'MPANY, INC. 793
circumstances, therefore, we find that the respondents are one and
the same legal entity in so far as the Act is concerned, and in any
event are so interrelated as to be jointly and severally liable for the
unfair labor practices of both.13
H. THE ORGANIZATION INVOLVED
United Dock and Fruit Workers' Union is an unaffiliated labor
organization, incorporated under the laws of Louisiana in October
1937. It admits to membership all dock employees of the respond-
ents , including foremen, but excluding watchmen, paymasters,
superintendents, deputy sheriffs, and clerical and office employees.
III. THE UNFAIR LABOR PRACTICES
A. Background
At their docks in St. Bernard Parish the respondents employ about
550 or 575 men to unload fruit from ships, pack it, and load it into
railroad cars. These employees are divided into four general classes :
(1) approximately 75 unloaders who work in the ship's hold; (2)
approximately 300 carriers who transport the fruit from the ship to
belts or conveyors; (3) approximately 125 men in the box depart-
ment, who trim, pack, and box the fruit; and (4) approximately 75
carriers who load the fruit into the railroad cars.
As each boat docks, these employees are hired by the respondents
to unload it, and immediately after the boat has been unloaded,
they are paid off. In hiring men to unload a boat, the respondents'
supervisory employees give preference to individuals who have in
the past worked unloading boats for the respondents and who reg-
ularly have been present each time a boat docked. Such individuals,
"Cf. footnote 12, supra; N . L. R. B. v. Hopwood Retinning Co., Inc., 98 F . ( 2d) 97
C. C. A. 2, 1938 ), 104 F . ( 2d) 302 (C. C. A. 2, 1939 ), enf'g as modified , Matter of
Hopwood Retinning Co., Inc . and Metal Polishers , Buffers, Platers and Helpers Int. Union
Local No. 8, 4 N. L. R. B. 922; N. L. R. B. v. Christian A. Lund, 103 F. (2d) 815,
(C. C. A. 8, 1939 ), enf'g as modified , Matter of C . A. Lund Co. and Novelty Workers Union,
Local 1866, 6 N. L. R . B. 423; Matter of Benjamin Fainblatt and Int. Ladies' Garment
Workers' Union, Local No. 149, 4 N. L. R. B. 596; Matter of Todd Shipyards Corp. and
Industrial Union of Marine and Shipbuilding Workers of Amer., 5 N. L. R. B. 20; Matter
of Cardinale Trucking Corp . and Int. Ass'n of Machinists , 5 N. L. R . B. 220; Matter of
Waggoner Refining Co ., Inc. and It. Assn of Oil Field, Gas Well and Refinery Workers
of Amer., 6 N. L. R . B. 731; Matter of Art Crayon Co. Inc. and United Artists Supply
Workers, 7 N. L. R . B. 102; Matter of Kling Factories and Locals 12, 18, 14, and 15
Organized Furniture Workers, 8 N. L. R. B . 1228; Matter of Sterling Corset Co ., Inc. and
Int. Ladies ' Garment Workers' Union, Local 85, 9 N. L . R. B. 858; Matter of Union Drawn
Steel Co. and Steel Workers Organ . Comm., 10 N. L . R. B. 868; Matter of Swift and Co.
and Local 630 Amal. Meat Cutters and Butcher Workmen of N. Amer., 10 N. L. R. B. 991;
Matter of The Timken Silent Automatic Co. and Earl P. Ormsbee, 11 N. L. R. B. 901;
Matter of Roemer Bros. Trucking Co., Inc. and It. Ass 'n of Machinists, Lodge #840,
13 N. L. R. B. 549; Matter of Bethlehem Steel Corp . and Steel Workers. Organ . Comm.,
14 N. L. R. B. 539; Matter of Charles Cushman Co . and United Shoe Workers of Amer.,
15 N. L. R. B. 90.
794 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
after having worked a number of boats for the respondents, are
given small buttons to aid the respondents' supervisory employees
in identifying them as former and regular workers. Regular em-
ployees, however, do not receive preference for employment unless
they are good workers and are actually present at the time workers
are being hired for a boat. Approximately 300 or 350 employees
for each boat are employees who regularly work for the respondents.
Thus it is plain that a continuing employment relationship exists
in the case of regular employees, since unless they quit or are dis-
charged they customarily work boat after boat and are accorded
preference under the respondents' system of assignment of work.14
We find that such regular workers remain employees of the respond-
ents within the meaning of Section 2 (3) of the Act, even though
they are paid off after having unloaded one boat, until they either
quit or are discharged.15
While a boat is being unloaded, there are at least -six deputy
sheriffs present on the docks. These deputies are officers of the parish
but receive no pay from the parish for this work. They are paid
$5.00 each for each boat by the respondents, take orders from the
respondents, and are present to prevent thefts and maintain order
on the docks. They have no authority to hire and discharge em-
ployees except at the express orders of the respondent's supervisory
employees.
On September 12, 1937, immediately after the employees on the
docks had received payment for unloading a boat, and immediately
before another boat was to be unloaded, all but 150 of the employees
went on strike and refused to unload the next boat. At this time,
no labor organization existed among these employees. Shortly after
the strike had begun, several C. I. O. organizers arrived at the request
of some of the strikers, and negotiated with the respondents' super-
visory employees concerning the grievances of the strikers. Wein-
14 Cf. Matter of Alaska Packers Assn and Alaska Cannery Workers Union Local No. 5,
7 N. L. It. B. 141 ; Matter of Waterman Steamship Corp. and National Maritime Union of
Amer., 7 N. L. R . B. 237 , enf'd in part, Waterman Steamship Corp. v. N. L. R . B., 103
F. (2d) 157 ( C. C. A. 5, 1939 ), cert. granted , October 9 , 1939; Matter of Shipowners'
Ass'n of the Pacific Coast and Int . Longshoremen 's and Warehousemen 's Union, District
No. 1, 7 N. L. It. B. 1002; Matter of American Fruit Growers , Inc. and Fruit & Vegetable
Workers Sub -Local #191, 10 N. L. It. B . 316; Matter of South Atlantic Steamship Co. and
National Maritime Union of Amer ., 12 N. L. R . B. 1367; Matter of George G. Averill and
Fresh Fruit & Vegetable Workers Union, Local 78, 13 N. L. It. B. 411.
"Even if the argument be accepted that such workers are laid off or discharged
when they have finished unloading a boat, a refusal by the respondents to hire or reinstate
such discharged or laid -off employees for the next boat, because of union membership or
activity , would be a violation of Section 8 (1) and ( 3) of the Act . See, for example,
Matter of The Kelly-Spring/field Tire Co. and United Rubber Workers of Amer., 6 N. L.
It. B. 325 , consent decree entered, The Kelly-Springfield Tire Co. v. N . L. It. B., 97 F. (2d)
1007 (C. C. A. 4, 1938) ; Matter of Waumbec Mills, Inc. and United Textile Workers of
Amer. , 15 N. L. It. B. 37.
wrTNBBBCEB BANANA CiO'MPANY, INC. 795
berger was not on the docks at this time, and Arcana, the wharf
superintendent then in charge, told the C. I. O. organizers that he
had no power to adjust the grievances of the strikers, but that if
they returned to work, there would be no discrimination against
them. After remaining on strike for approximately 5 hours, the
employees, at the suggestion of the C. I. O. organizers, returned to
work. During the strike, approximately 400 men signed pledge
cards to form a union. On September 14 a meeting of the employees
was held at which approximately 100 more men signed pledge cards.
At a meeting on September 28, the employees elected a committee to
obtain a corporate charter for their labor organization, the Union.
At a meeting on October 17, a committee was selected by the em-
ployees to draft a proposed contract to be presented to the respond-
ents for discussion and negotiation, dues were fixed at $1.00 a month,
and three officers were elected. On October 21 the corporate charter
of the Union was obtained.
B. The discharges, the refusals to reinstate, and interference,
coercion, and restraint
As set forth above, the complaint alleges discrimination by the
respondents against 35 employees in regard to their hire and tenure
of employment. We have hereinbefore affirmed the Trial Examiner's
dismissal during the hearing of the allegations concerning three of
these employees. In his Intermediate. Report, the Trial Examiner
dismissed the allegations concerning two other employees, Robert
Jackson and Everitt Green, who had not testified at the hearing and
concerning whose alleged discriminatory discharges no evidence had
been offered. No exceptions have been filed by any party to the dis-
missal of these allegations, and in view of the absence of evidence
concerning them, we shall order these allegations dismissed without
prejudice. No evidence was introduced concerning the alleged dis-
criminatory discharge of William Cramer, who did not appear at
the hearing and concerning whom the Trial Examiner made no
recommendation in his Intermediate Report. Under these circum-
stances, we shall dismiss the allegation concerning Cramer's discharge
without prejudice. There remain for. our consideration the allega-
tions of discrimination against 29 employees.
Substantially all 29 of the individuals involved were regular em-
ployees who, prior to their discharge, had worked substantially every
boat for at least several months and had never been refused employ-
ment during this period by the respondents. Although Weinberger
and several of the respondents' supervisory employees denied that any
employees had been discharged or refused work at this time because
796 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of union membership and activity, they did not, except in four cases,
explain why any of these 29 individuals were suddenly discharged or
refused work in October or November 1937. Under these circum-
stances and in view of the facts set forth below, we do not credit
these general denials of discrimination.
As previously set forth, on October 17, 1937, the employees had
elected officers of the Union. These officers were John Kewley, presi-
dent, Sam Mani, secretary-treasurer, and Norman Bradley, vice pres-
ident. All three officers of the Union were employees of the respond-
ents. On October 18,1937, the names of these men and their positions
in the Union were published in a New Orleans newspaper, together
with the statement that the respondents' employees had organized the
Union and were endeavoring to obtain a charter for it from the
C. I. O. The following day, the three officers of the Union, together
with 11 other employees, all members of the Union, were discharged
by the respondents, and on October 20, 7 more employees, union mem-
bers, suffered the same fate. The employees in the box department
had been the most active union members and organizers, and all 21
employees discharged on October 19 and 20 worked in this depart-
ment. Prior to October 19 there had been no comparable number of
discharges. No explanation was offered by the respondents for this
sudden large number of discharges during the third week in October.
It is plain from the record that these discharges were designed by
the respondents to destroy the Union. As early as September 14,
1937, 2 days after the strike on September 12, Cecil Santana, super-
intendent of the box department, told Foreman Cipriano that "it
would be too bad for all of those that would join the union and
organize." The morning of October 19, Deputy Sheriff Roscoe
Smith told an employee called California, "we are going to clean the
box department out today." That same day Foreman Cipriano told
James Carter, an employee, that if Carter would forget about the
Union, Cipriano would give him a raise of 5 cents an hour. The
following day, an employee, Frank Bianca, was told by Santana,
"some went yesterday, some [are] going today, and some [are] going
tomorrow." Also, for several days before October 19, the respond-
ents had been hiring new employees in the box department or trans-
ferring employees from other departments to the box department,
and training them to perform the functions of -the regular box-de-
partment employees. No explanation for these hirings and transfers
was offered by the respondents at the hearing.
We find that the respondents had determined to destroy the
Union by discharging union members on October 19 and thereafter.
We now consider in more detail each of the 29 employees involved.
WEINBERGER BANANA 'OOwIPANY , INC. 797
1. The discriminations on October 19, 1937
John Kewley, Sam Mani 16 and Henry Callahan. Kewley had
worked for the respondents about 5 years , during the last 2 of
which he packed and trimmed bananas in the box department.
Kewley was a regular employee, wearing one of the identification
buttons previously mentioned . He was senior to all but 3 of the 40
trimmers and packers in the department . There had never been
any complaints about his work. As already set forth , Kewley was
president of the Union.
Mani was a regular employee who had worked for the respondents
for over 2 years as a packer and trimmer in the box department.
There had been no complaints concerning his work . He was senior
to at least 10 other employees in the box department . He signed a
union pledge card on September 12 and was secretary and treasurer
of the Union.
Callahan was a regular employee with an identification button,
and had worked as a trimmer and packer in the box department for
about 2 years. There had been no complaints about his work. He
joined the Union in September 1937.
On October 19, after the employees had finished -unloading a
boat, Kewley, Mani, and Callahan took up a collection on the re-
spondents ' docks from the employees just after they had received
their pay , for the purpose of paying for the union charter. Kewley
testified that while he was working on the docks that morning he
had noticed that Weinberger and Foreman Cipriano were walking
around the docks with a paper in their hands , and that whenever
they passed by him they looked at the paper, and Cipriano pointed
at him and spoke to Weinberger . Mani corroborated Kewley's testi-
mony. Norman Bradley, an employee, testified that he saw Arcana
and Weinberger reading a newspaper clipping on the docks that
morning. Callahan testified that he noticed Weinberger and Super-
intendent Arcana watching them for about a half hour while they
were collecting from the men. Ernest Lemoine, an employee , testi-
fied that while the three men were collecting , he saw Foreman Cip-
riano point out Kewley and Mani to Arcana and Weinberger, and
heard Weinberger say, "have the men run off ." Shanahan, an em-
ployee, testified that during the collection he saw Cipriano point
out Kewley and Mani to Weinberger and Arcana , and heard Wein-
berger say : "Fire them . Run them off the wharf , and all the rest
of them that belong to the union ." Shanahan testified that imme-
diately after these remarks of Weinberger, Arcana and Cipriano
11 Also known as Quattromant.
798 DECISIONS OF. NATIONAL LABOR RELATIONS BOARD
approached one of the deputies, who thereupon ordered Kewley
and Mani, and later Callahan, off the docks.
Kewley, Mani, and Callahan collected from about a third of the
employees. Callahan and Mani then walked away. Kewley testi-
fied that then a deputy sheriff, Patton, came up and told him "to get
off the dock"; that Mani joined him; and that Patton then said to
them both: "I guess you two fellows know you no longer have a job
on this dock ... stay off the dock and get out of St. Bernard Parish.
If you come back down here we will put you both in jail." Accord-
ing to Kewley, Patton refused to give any explanation for the dis-
charges. Mani corroborated Kewley's testimony. Both Mani and
Kewley testified that there had been no previous complaints concern-
ing their work, and that neither Cipriano nor any other supervisory
employee of the respondents questioned them concerning the collec-
tion or spoke to them that day.
Callahan testified that shortly after he had stopped collecting,
Deputy Patton and Foreman Cipriano came up to him, told him
that he had been discharged, ordered him to get out of the parish
and "stay out," and refused to give him any explanation for his dis-
charge. Callahan testified that when he was discharged, he had a
work ticket in his pocket for the next boat which was about to dock,
and that Cipriano, upon seeing this ticket, took it from him. Calla-
han also. testified that he observed supervisory employees, immedi-
ately after the collection, questioning several of the employees who
had contributed for the union charter. According to Callahan, he
returned to the wharf later that day when a third boat was docking,
and Cipriano refused to give him a work ticket at that time, saying,
"I don't need you."
Weinberger testified that when he noticed the three employees col-
lecting money, he asked Arcana to find out what the collection was
for. Weinberger denied, however, that he ordered them discharged,
and testified that although the respondents had a rule forbidding
the collection of money for any purpose on the docks, he did not
order the men discharged for violation of this! rule because none of
the employees were working at this time, since the boat had been
completely unloaded. Weinberger also denied knowing anything
about the Union at this time, or seeing the account in the newspaper
concerning the Union and its officers. Arcana testified that Wein=
berger asked him what the collection was for; that since he did not
know, he or Weinberger asked Foreman Cipriano to find out; that
he never found out what the collection was for, nor did Cipriano ever
report to him concerning the collection; and that Cipriano discharged
the three collectors. Cipriano testified that Weinberger, and Arcana
WFANBEBGER BANANA COMPANY, INIC. 799
ordered him to find out the purpose of the collection ; and that he
discharged the three collectors, by ordering Deputy Patton to put
them off the wharf, solely because they refused to answer his ques-
tions and tell him what the collection was for. Cipriano also testi-
fied that neither Weinberger nor Arcana ordered the men discharged;
that he did not see the men collecting; and that they were not dis-
charged for collecting, since the respondents' rule forbade collecting
only while a boat was being unloaded. Deputy Patton testified that
he could not recall this incident.
We credit the testimony of Kewley, Mani, Callahan, Lemoine, and
Shanahan concerning the above incidents and find the facts to be
as set forth above in their testimony; that on October 19, Weinberger,
Arcana, and Cipriano knew of the union membership and activity of
Kewley, Mani, and Callahan; that on October 19, Weinberger ordered
Arcana and Cipriano to discharge these three employees because of
their union membership and activity in pursuance of a plan to de-
stroy the Union by discharging a large number of union members;
that, pursuant to Weinberger's orders, Patton compelled Kewley
and Mani to leave the docks, threatening to jail them if they re-
turned ; that pursuant to Weinberger's orders, Cipriano and Patton
discharged Callahan; and that no explanation was offered the three
discharged employees by the respondents' supervisory employees for
these sudden discharges. We find that the respondents discharged
Kewley, Mani, and Callahan because of their union membership and
activity.
Norman Bradley had worked for the respondents for over 2 years
before his discharge, first as a banana carrier, and later as a box tier
in the box department. There had been no complaints about his
work. He was senior to 20 banana carriers, and equal in seniority
to one-third of the box tiers. He was a regular employee, with an
identification button. On September 12 he signed a union pledge
card. He was vice president of the Union, and was so listed in the
newspaper article previously referred to.
On October 19 Bradley was waiting to collect his pay after having
worked at unloading the first boat, when Cipriano, together with
a deputy, asked him whether he had a ticket for the next boat, and
searched him. Bradley did not have a work ticket. Pursuant to
the deputy's orders Bradley, after having obtained his pay, reported
to the deputy, who told him that he "wasn't needed any more on the
wharf, to get off the wharf, to get off the premises, and get out of the
Parish." No explanation was offered by the respondents' supervisory
employees for this sudden discharge of Bradley.
We find that the respondents discharged Bradley because of his
union membership and activity.
800 DECISIONS OF NATIONAL LABOR , RELATIONS BOARD
R. A. Shanahan had worked for the respondents) as a packer, and
trimmer in the box department for 13 months before his discharge.
He was a regular employee with an identification button, and was
senior to 10 or 15 other employees in the box department. There
had been no complaints about his work. He signed a union pledge
card on September 12.
On the morning of October 19 Shanahan heard Deputy, Smith tell
it fellow employee called California, "we are going to clean the box
department out today." Shanahan asked the deputy, "how about
me," and the deputy replied, "you are on the . . . list." Later that
day, Foreman Claude Garcia of the box department refused to give
Shanahan a work ticket for a boat and sent him, to see Superin-
tendent Santana. Shanahan testified that Santana refused to give
him a ticket, saying: "we don't need you anymore ... we just don't
want you . . . your work is unsatisfactory ... you are a radical."
According to Shanahan, he thereupon asked Foreman Cipriano , for
a work ticket, but when Cipriano asked, "do you belong to the . .
union," he, Shanahan, walked away. Neither Cipriano nor Santana
denied this testimony of Shanahan, which we credit. We find the
facts, to be as set forth above in Shanahan's testimony.
We find that the respondents discharged Shanahan because of his
union membership and activity.
Joseph Riccardi, a regular employee with an identification button,
had worked for the respondents for about 2 years, with the exception
of a short interval prior to April 1937, during which he worked else-
where. He was a trimmer and packer in the box department. On
September 12, he signed a union pledge card.
Riccardi testified that on October 19, Foreman Cipriano ordered
him to get off the wharf; that he asked Cipriano why he had to leave;
that the latter replied : "We know you are mixed up in some union
activities"; that Cipriano then ordered a deputy not to allow him
on the docks in the future ; and that thereupon Deputies Patton.and
Smith told him to get off the docks and to stay out of the Parish.
Riccardi then left. Cipriano, Smith, and Patton did not deny this
testimony of Riccardi which we credit. ' We find the facts to be as
set, forth above in - Riccardi's testimony.
We find that the respondents discharged Riccardi because of , his
union membership and activity.
Charles Barbier worked for the respondents as a trimmer and
packer in the box department from March 1937 until his discharge.
There had been no complaints about his work, and he was senior to
several employees in the department who were not discharged at this
time.. He signed a union pledge card on September 12, and solicited
members for the Union.
WEINBFDRGER BANANA 1O01MPANY, INC. 801
Barbier testified that on October 19, Superintendent Santana told
him, "they were breaking in a lot of new hands and he didn't need
me"; and that a few minutes later Deputy Sheriff Patton told him
that he was "no longer wanted on or around the dock, that the best
thing I could do was to get out of St. Bernard parish and stay out, if
I was caught around the wharf, I would be arrested because I was
known on the wharf as a union agitator." Francis Pastrano, an em-
ployee, corroborated this testimony of Barbier concerning Patton's
remarks. Patton and Santana did not deny the testimony of Barbier
and Pastrano which we credit. We find the facts to be as set forth
above in Barbier's testimony.
We find that the respondents discharged Barbier because of his
union membership and activity.
Francis P. Pastrano had worked for the respondents in the box de-
partment for 6 months prior to his discharge. He was a regular
employee and had an identification button. He signed a union pledge
card on September 12.
Pastrano testified that on October 19 Santana twice told him, "I
was not wanted around the dock, because I belonged to the Union" ;
and that a few moments later when Santana told Deputy Patton to
order him to leave the docks and the parish, he left. Santana and
Patton did not deny this testimony of Pastrano, which we credit.
We find the facts to be as set forth above in Pastrano's testimony.
We find that the respondents discharged Pastrano because of his
union membership and activity.
Ernest Lenwine had worked as a trimmer and packer in the box
department for 41/z years, prior to his discharge, with the exception
of 7 months in 1935. Lemoine was a regular employee and was senior
to several employees in the box department who were not discharged
when he was. Lemoine signed a union pledge card on September 12,
and on October 19 gave Kewley money on the docks for the union
charter.
Lemoine testified that after he had 'worked in the unloading of the
first boat to dock on October 19, Foreman Claude Garcia refused to
give him a work ticket for the second boat, saying that only seven
scales would be used for that boat, but telling him to return for the
third boat at 5 o'clock that afternoon. According to Lemoine, 19 of
,the 20 scales owned by the respondents were used for the. second boat,
and employees regularly working in another department did his work
in the box department. Lemoine testified that he then asked Santana
for work; that Santana told him that the respondents "were breaking
new men in my place, they didn't need me anymore"; and that Fore-
man Cipriano thereupon escorted him off the docks. None of the
respondents' supervisory employees denied the testimony of Lemoine,
802 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
which we credit. We find the facts to be as set forth above in Le-
moine's testimony. No explanation was offered by the respondents as
to why Lemoine was suddenly discharged on October 19, and his work
given to other, and new, employees.
We find that the respondents discharged Lemoine because of his
union membership and activity.
Chester Harding was a regular employee with an identification but-
ton, and had worked in the box department for about 15 months
prior to his discharge. During September 1937, he joined the Union.
On October 19 Harding and other employees were standing in line
in order to get work tickets. Foreman Garcia picked Harding and
several other men out of the line and sent them to Santana, who told
them : "I am sorry. If it was left to me . . . I would put you on,
but . . . I have got orders to fire you, and that is what I am doing."
A week later, Harding again asked Foreman Garcia, at the docks, for
work, and Garcia said, "I can't use you; be on your way." No
explanation was offered by the respondents for Harding's sudden
discharge.
We find that the respondents discharged Harding because of. his
union membership and activity.
James Roeder was a regular employee who had worked in the box
department for about 15 months prior to his discharge. He was
senior to at least 10 or 12 other employees in the box department who
were not discharged at this time. There had been no complaints
concerning his work. He joined the Union on October 16 or 17.
On October 19 Deputy Patton told Roeder "to stay out of the
Parish, if they caught me back down there any more, they would put
me in jail." And Watchman Lawrence Lamarco told Roeder to "get
off the wharf and stay off the wharf and not come back." The fol-
lowing day, however, Roeder returned and asked for a work ticket.
Thereupon, Deputy Patton chased Roeder off the docks, saying : "You
have been warned to stay off the wharf. I don't want you down here
any more." No explanation was offered by the respondents for
Roeder's sudden discharge.
We find that the respondents discharged Roeder because of his
union membership and activity.
Strad Branch had worked for the respondents for about 4 years
prior to his discharge, the last year as a slatter in the box depart-,
ment. In 1937, Branch, together with three other slatters in the
respondents' employ, had received a wage increase of 5 cents an hour.
Branch was senior to three other slatters not discharged at this time.
There had been no complaints concerning his work, nor had he ever
been laid off, prior to his discharge. He was a regular employee with
WE.TNTIrJIRGER BANANA 'CO'MPANY, INC. 803
an identification button. Branch signed a union pledge card on
September 12.
On October 19 Branch worked during the unloading of the first
two boats to dock that day. Before he began work on the third boat,
Acting Foreman Charles Spizale discharged him, telling him that he
was "too slow." Later that day, Branch asked another foreman for
a work ticket, who told him that orders had been issued not to em-
ploy him. In December 1937, Branch again applied for work, and
was told by Foreman Pete Lamarco, of the box department, that
"there was nothing doing then."
We do not believe that Branch was discharged because of slowness
in his work. No evidence was introduced by the respondents to
substantiate this assertion. There had been no prior complaints con-
cerning Branch's work, and he had received a raise in pay in 1937.
We find that Branch's discharge was part of the wholesale discharges
of union members occurring on October 19. We find that the
respondents discharged Branch because of his union membership and
activity.
James Kelly had worked as a box tier in the box department for
about 3 years prior to his discharge. There had been no complaints
concerning his work. He was a regular employee, and the senior
employee among the 20 box tiers in the department. He signed a
union pledge card on September 12.
On October 19 Kelly worked unloading the first boat, and had
obtained a work ticket for the second boat. Before he began work-
ing on the second boat, however, Foreman Garcia tore up his work
ticket, saying that he could not use Kelly on that boat. Kelly waited
around the docks until the third boat was ready to unload. Many
new men who never before had worked for the respondents were
employed to unload the third boat. Kelly had never before ' been
refused work by the respondents. No explanation was offered by the
respondents for Kelly's sudden discharge.
We find that the respondents discharged Kelly because of his union
membership and activity.
Ramon E. Gonzales began to work for the respondents in Septem-
ber 1935 as a trimmer and packer in the box department. He was
a regular employee, with an identification button, and was senior
to several employees doing the same. kind of work in his department
who were not discharged when he was. He signed a union pledge
card on September 12.
On October 19, when Gonzales obtained his wages for unloading,
a boat, Timekeeper Richard told Gonzales that he had orders not to
give Gonzales a ticket for the next boat. Gonzales then saw Arcana,
Lamarco, and Santana, all of whom refused to give any explanation
804 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
for his discharge. Santana finally told him to wait outside the wharf.
Gonzales waited there for 4 hours, but Santana did not return.
Deputy Edward Wiatrowski 17 refused to let Gonzales go on the
docks. On two occasions during the next 4 days, Gonzales attempted
to obtain work, but was refused admission to the docks by Deputy
Patton and Deputy Wiatrowski who stated that it was their duty to
keep. him "out of that Parish." No explanation was offered by the
respondents concerning Gonzales' discharge.
We find that the respondents discharged Gonzales because of his
union membership and activity.
2. The discriminations on October 20, 1937
Robert Allen worked for the respondents from September 1936
until October 20, 1937. At the time of his discharge he was employed
in the box department. He was a regular employee, and there had
been no complaints concerning his work. Allen signed a union
pledge card on September 12, attended several union meetings, and
obtained members for the Union.
Allen testified that on October 20 Foreman Garcia told him
and five other employees that for reasons which he, Garcia, could
not tell them, they could no longer work for the respondents;
that as he was leaving the wharf 'after receiving this information
from Garcia, he met Foreman Cipriano, who asked him where he
was going, pointing out that the next boat would soon dock, and
saying : "I will see if you are all right . . . I will give you a ticket
on the next boat if you are all right." According to Allen, Cipriano
then asked Garcia if he was "all right"; Garcia shook his head in the
negative; another employee, the mess sergeant or trouble shooter,
then informed Cipriano that Allen belonged to the Union; and
Cipriano then ordered Allen to leave and stay off the wharf,
stating that the respondents "were not going to have any hobo union
around there." Garcia and Cipriano did not deny Allen's testimony,
which we credit. We find the facts to be as set forth above in Allen's
testimony.
We find that the respondents discharged Allen because of his union
membership and activity.
Frank Bianca, Daniel Carnahan, and Joseph Alton Clark. Bianca
had worked in the box department for 18 months prior to his dis-
charge on October 20, 1937. He was a regular employee, with an
identification button, and was senior to 20 employees not discharged
at this time. He joined the Union in September, and usually notified
the men of union meetings.
17 Also known as Wentz.
WEINBERGER BANANA 1OOIMPANY, INC. 805
Carnahan worked for the respondents from January 1937 to Octo-
ber 20, 1937, in the box department. He was senior to several em-
ployees in the department who were not discharged at this time.
Carnahan was a regular employee, with an 'identification button.
There had been no complaints concerning his work. He joined the
Union on October 17 or 18.
Clark worked as a trimmer and packer in the box department for
21/2 years before he was discharged on October 20, 193718 Clark was
the eighth or tenth senior employee in the box department. He'was
a regular employee with an identification button, and had worked
almost every ship during the 21/z years prior to his discharge. He
joined the Union in October before his discharge.
On the night of October 19 six employees from other departments
worked in the box department for the first time. Carnahan showed
two of these new employees how to perform his work. Bianca testi-
fied that when he asked for work on October 20, Foreman Garcia
sent him to Santana, who told him and three other employees, includ-
ing Carnahan and Clark : "you are fired for good .... some went
yesterday; some [are] going today, and some [are] going tomorrow."
Santana did not deny this testimony of Bianca, -which we credit.
Santana also told the four employees that they were discharged on
orders from "higher-up," stating : "It is not me. I have got to do
as I am told." On October 27, 1937, Bianca went to the docks to
obtain work and saw Cipriano and Arcana, who ordered deputies to
tell Bianca to leave the docks. Bianca left. No explanation was
offered by the respondents for the sudden discharge of Bianca, Clark,
and Carnahan, or for the transfer of employees from other depart-
ments to the box department to perform the work of Carnahan.
We find that the • respondents discharged Bianca, Carnahan, and
Clark because of their union membership and activity.
Sam J. Battaglia was a regular employee and had worked as a
packer and trimmer in the box department for 8 months prior to
his discharge on October 20, 1937. There had been no complaints
concerning his work, and he was senior to several other employees
in the box department who were not discharged at this time. He
joined the Union in September 1937.
On October 20 Battaglia had obtained a work ticket and was
waiting for the boat to dock when Deputy Patton told him to get
off the wharf and not to return, threatening to shoot him the next
Is Clark testified that he was discharged "around" October 25, 1937 . Clark also testified,
however, that he was discharged at the same time several other employees in his depart-
ment were , and Bianca testified that Clark was discharged on October 20, at the same
time that he was. We find, therefore, that Clark was discharged on October 20.
806 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
time he came on the wharf. The respondents offered no explanation
for this sudden discharge of Battaglia.
We find that Battaglia was discharged by the respondents because
of his union membership and activity.
Oscar Santa Ceuz was a regular employee and had worked for the
respondents for 7 months before his discharge on October 20, 1937.
Immediately prior to his discharge he had been promoted from
banana carrying to packing and trimming in the box department.
He joined the Union in September 1937.
On October 20 Ceuz arrived at the docks 5 or 10 minutes after the
unloading of a boat had begun. Foreman Garcia asked Ceuz where
he had been, and Ceuz stated that he had been "home." Ceuz, in
fact, had been at a union meeting. Garcia then told Ceuz that the
latter had been at a union meeting and ordered him to get off the
wharf. Ceuz had been late on several occasions before but had
always secured a work ticket. Ceuz did not again ask the respond-
ents for employment.
The respondents' hostility toward the Union and its members at
this time, as shown by the numerous discriminatory discharges pre-
viously discussed, the fact that Ceuz when late on previous occasions
had obtained work, and the fact that Garcia told Ceuz that the
latter had been at a union meeting when he refused Ceuz work for
the first time, all lead us to find that the respondents discharged
Ceuz because of his union membership and activity.
Vern F. Fisher was a regular employee and had worked as a car-
rier in the box department for 2 months prior to his discharge on
October 20, 1937. During these 2 months, he had never been refused
a work ticket when he asked for one, and he had worked all boats
unloaded during this period. Fisher joined the Union early in
October and was chairman of its bargaining committee.
On October 19 Fisher was told to report at 5 o'clock the next
morning to-unload a boat. He reported at 5 o'clock. While he was
waiting for a work ticket, Garcia and Santana came out and told
him and 12 or 15 other men that there was "not so much work . . .
to be done today and no more tickets would be passed out." Fisher
did not thereafter ask the respondents for work.
Fisher had worked only 2 months for the respondents. He was
but 1 of 12 or 15 men to be refused work at the same time. There
is no evidence that the other 12 or 15 men belonged to the Union.
And Fisher did not again apply for work at the docks. Under these
circumstances we find that the respondents did not refuse Fisher work
on October 20 because of his union activity and membership. We
shall dismiss the allegation of the complaint concerning Fisher.
WETNBEnGER BAN-ANA 'OO1DIPANY, INIC. 807
3. The discriminations on October 25, 1937
Millard R. Hartley had been employed by the respondents for
14 months prior to his discharge on October 25, 1937. He was a
regular employee and had an identification button. He joined the
Union in September 1937.
On October 25 Hartley, immediately after having attended a union
meeting, reported for work at the docks and obtained a work ticket.
While he was waiting on the wharf for the boat to dock, Joseph
Di Carlo, the paymaster, and Deputy Roscoe Smith ordered him "to
get off the wharf." Hartley asked Smith for an explanation, and
Smith answered : "You signed up in the Union hall ... you
were seen ... coming out of the Union hall this afternoon."
In December 1937, Hartley saw Foreman Cipriano at a saloon run by
Cipriano. He asked Cipriano for a job on the wharf, and the latter
replied : "I don't want4 none of you fellows on the wharf at all. I
seen you on picket duty ... you are a radical yourself."
We find that the respondents discharged Hartley because of his
union membership and activity.
Peter Jones worked for the respondents for about 8 months before
he was discharged on October 25, 1937. He was a regular employee,
with an identification button, and was senior to four of seven em-
ployees performing the same kind of work as he did. He joined the
Union in September 1937.
On October 25, after Jones had obtained a ticket to work on a boat
which was about to dock, Deputy Patton informed him that Wein-
berger had ordered Patton to take his work ticket and badge away
from him and "run" him "off the wharf." Patton also told Jones :
"... get out of the parish and stay out of the parish .. .
go on. Go to the . C. I. O. . . . they will give you a job." Later
that day Jones attempted to go on the wharf to apply for work, but
was kept off by Deputies Patton and Smith.
We find that the respondents discharged Jones because of his union
membership and activity.
W. Faris Cannon worked as a banana carrier for 3 months prior
to his discharge on October 25, 1937. He was a regular employee
and had never been laid off. Prior to his discharge Cannon attended
one union meeting and solicited members for the Union.
On October 25, 3 minutes after Cannon had obtained a work ticket
for a boat which was about to dock, his foreman discharged him,
telling him to bet off the docks and out of the Parish, and taking
his work ticket away from him. No explanation was offered by the
respondents for this precipitate discharge of Cannon.
283029-41-vol. 18-52
808 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
We find that the respondents discharged Cannon because of his
union membership and activity.
Louis Tony testified that he had been in the respondents' employ
for about 3 years prior to his discharge on October 25, 1937. Time-
keeper Richard testified that Tony worked for the respondents only
from September 21, 1937, to October 28, 1937. We credit Tony's
testimony. Tony was a regular employee, with an identification
button. He had never been laid off prior to his discharge. He
joined the Union on October 17, 1937, having previously signed a
pledge card on September 12, and attended several union meetings
before his discharge.
Tony testified that on October 25, 1937, while he was carrying a
bunch of bananas on his shoulder, he met Arcana, who noticed two
union membership cards in his shirt pocket and thereupon asked,
him if he,belonged to the Union; that when he admitted that he
belonged to the Union, Arcana tore up the union cards, took the
bananas from him, called over Deputy Smith, and ordered Smith to
"take care" of him; that as he and Smith were leaving the docks,
they met Weinberger, who asked what was the trouble; and that
Smith replied, "He is a union man." According to Tony, Wein-
berger then said : ". . . take all of these men out of here. Take
all of these hoboes out of here . . . I don't want no union men
here." Neither Weinberger nor Smith testified concerning Tony's
discharge.- Arcana testified that he discharged Tony because he no-
ticed that Tony had injured a bunch of bananas by throwing them
on the wharf. Arcana testified that he had never before seen Tony
injure fruit and that the damage amounted approximately to $3.00.
Tony denied injuring any fruit and testified that no one criticized
his work on October 25. Tony also testified that immediately after
his discharge, he described the circumstances of it to Bradley, vice
president of the Union. Bradley corroborated this testimony of
Tony. We credit the testimony of Tony and Bradley, and find the
facts to be as set forth above in their testimony.
We find that the respondents discharged Tony because of his
union membership and activity.
4. The discrimination on October 26, 1937
Henry Schmidt was a regular employee and had worked as a
banana carrier for the respondents for 11/2 years before his discharge
on October 26, 1937. He was senior to at least five banana carriers
who were not discharged at this time. There had been no complaints
about his work, and he had never been laid off or refused employ-
ment. He joined the Union in September 1937.
WEINBE1RGER BANANA C0'MPANY, IN(C. 809
When Schmidt attempted to go on the docks on October 26 in order
to go to work, Deputy Patton ordered him to "get out of" the Parish,
saying, "I can't let you go on the docks anymore." On December
5, 1937, Schmidt asked Foreman Cipriano, at the latter's saloon,
for work at the wharf, and Cipriano said, "We don't want you
fellows anymore." No explanation was offered by the respondents
for Schmidt's discharge.
We find that the respondents discharged Schmidt because of his
union membership and activity.
We find that the respondents, by discharging 25 employees 1-11 as
set forth in this section, III B, discriminated in regard to the hire
and tenure of employment of such employees, thereby discouraging
membership in a labor organization. We further find that by such
discharges; by the coercive, intimidatory, and anti-union statements
of Weinberger, Santana, Arcana, Cipriano, Garcia, and other super-
visory employees; by the threats of such supervisory employees and
of Patton, Smith, Wiatrowski, Lamarco, and other deputies and
watchmen, to shoot or jail union members; and by other acts and
conduct set forth above, the respondents interfered with, restrained,
and coerced their employees in the exercise of the rights guaranteed
in Section 7 of the Act.
5. The strike; subsequent discriminations and interference,
restraint, and coercion
On October 24, 1937, a union committee gave Arcana a proposed
contract which the Union desired the respondents to sign. The
following day a union committee composed of Bradley, Mani, and
Fisher, saw Weinberger, who told them that he would not agree to
the wage increase proposed in the contract. The committee told
Weinberger that they felt that their wages were too low and that
their working conditions were extremely bad. The committee asked
Weinberger if he would recognize the Union and sign an agreement
not to reduce wages. Weinberger replied that he would have to
consider the matter further, observing that it would. be difficult for
him and they Union to reach an agreement.
On October 26, at a union meeting, the members voted to call a
strike for the evening of October 27. The strike began on October 27
and lasted until early in December 1937. The evidence establishes
that the strike was called partly because of Weinberger's failure to
sign the contract, and partly because of the numerous discharges,
discussed in the preceding subsections, by which the respondents had
discriminated against union members. We find that the strike which
19 Not counting Vern F. Fisher, who, we have found , was not discriminated against.
810 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
went into effect on October 27 and lasted until early in December 1937,
was caused in substantial part by the respondents' unfair labor prac-
tices, set forth in the preceding subsections.
Elijah Jenkins had been employed by the respondents as a banana
carrier and box tier for about 15 months prior to his discharge on
October 29, 1937. He was a regular employee, had an identification
button, and was senior to several employees not discharged at this
time.
Jenkins joined the Union in the middle of September 1937. He
did not go on strike on October 27, but, at the Union' s request,
remained at work in order to report on what occurred on the docks.
On October 29, when Jenkins reported for work, Timekeeper Richard
refused toy give him a ticket. Jenkins attempted to obtain a ticket a
second time from Richard, who thereupon ordered him "to get out of
the line." The respondents offered no explanation for Jenkins'
discharge.
We find that the respondents discharged Jenkins because of his
union membership and activity.
John Serra worked for the respondents in the box department for
3 or 4 months prior to November 2, 1937. He signed a union pledge
card in September 1937. Serra did not go on strike on October 27.
He testified that he was not interested in the strike.
On November 2 Timekeeper Richard refused to give Serra a work
ticket. - Serra then saw Santana who told him that he had been dis-
charged for poor work, but that if he would.speak to Arcana he
would be rehired. Serra testified that lie did .not see Arcana or
subsequently attempt in any way to secure employment with the
respondents.
The Trial Examiner found that the respondents had not dis-
criminated against Serra in regard to his hire and tenure of, employ-
ment, and no exceptions have been filed to this finding. Under these
circumstances, and in view of the facts set forth above, we find that
the respondents did not discharge Serra because of his union mem-
bership and activity. We shall dismiss the allegation of the com-
plaint concerning Serra's discharge.
The record does not show the exact number of employees who went
on strike or the number of strikers who had been reinstated by the
respondents at the time of the hearing. Except as set forth here-
inafter, there is no evidence concerning applications for reinstatement
by the strikers after the strike was terminated in December 1937.
James (Curtis) Lemoine worked for the respondents as a banana
carrier for 8 months prior to October 1937. He Joined the Union
in September 1937. On October 28, 1937, he went on strike. During
the strike, he fed union members at his home, about a mile and a half
NVEiN'BEiRGE.R BANANA 1C0i\IPANY, INC. 811
from the respondents' docks,. while they were on picket duty. On the
morning of December 17, 1937, after the Union had terminated the
strike and withdrawn the pickets, Lemoine returned to the respond-
ents' docks and asked Foreman Charles Locicero for a work ticket
three times.. .Locicero refused him a ticket, but gave work tickets to
several individuals who had not worked for the respondents prior
to the strike. In the evening of the same day the respondents'
supervisory employees again refused to give Lemoine a work ticket.
The respondents offered no explanation for their refusals to employ
Lemoine.
We find that the respondents, although retaining in their employ
men hired for the first time during the strike, refused to employ
Lemoine because of his participation in the strike. A refusal under
these circumstances to reinstate an employee who has been on strike
because of unfair labor practices is a discrimination in regard to hire
and tenure of employment within the meaning of Section 8 (3) of the
Act.20 We find that the respondents refused to employ Lemoine
because of his union membership and activity.
During the hearing, on March 7, 1938, seven employees who, we
have found, were discriminatorily discharged by the respondents in
October 1937, and who had participated in the Union's strike, applied
for work at the respondents' docks, asking Foreman Lamarco for work
tickets. Lamarco, although he had 20 or 30 work tickets which he had
not yet given out and which he gave out later, refused to give tickets
to these 7 employees, telling them, "we are filled up."
We find that the respondents refused to employ these seven men,
namely, Kewley, Shanahan, Riccardi, Barbier, Jones, Schmidt, and
Bianca, because of their union membership and activity.
On November 18, 1937, immediately after the employees at the
docks had finished unloading a boat, Arcana and the foremen and
supervisors asked employees as they were being paid off to sign a
declaration stating that at no time had any officials or employees of
the Banana Company questioned them or made any remarks to them
concerning any union. Over 600 employees signed this paper. The
obtaining of the signatures of these employees, on the respondents'
property, and by the respondents' supervisory employees, in view of
the respondents' well-known hostility toward the Union as shown by
the respondents' conduct set forth above, interfered with, restrained,
20 Black Diamond S. S. Corp. v. N. L. R. B., 94 F. (2d) 875 (C. C. A. 2, 1938), cert.
denied, 304 U. S. 579 (1938), enf'g, Matter of Black Diamond Steamship Corp. and Marine
Engineers' Beneficial Ass'n., 3 N. L. It. B. 84 ; N. L. N. B. v. American Manufacturing Co.,
106 F. (2d) 61 (C. C. A. 2, 1939), enf'g, Matter of American Manufacturing Co. and
Textile Workers' Organ. Comm.., 5 N. L. R. B. 443; Matter of Western Felt Works and
Textile Workers Organ. Comm., 10 N. L. It. B. 407; Matter of Stehli and Co., Inc. and
Textile Workers Union, 11 N. L. R. B. 1397.
812 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and coerced the employees in the exercise of the rights guaranteed
in Section 7 of the Act.
We find that the respondents by discharging Elijah Jenkins, by
refusing to employ James Lemoine, and by refusing on March 7,
1938, to employ Kewley, Shanahan , Riccardi , Barbier , Jones, Schmidt,
and Bianca , discriminated in regard to the hire and tenure of employ-
ment of such employees , thereby discouraging membership in a labor
organization . We further find that by such discriminations and by
other acts and conduct set forth above, including the circulation of
the declaration on November 18, 1937 , the respondents interfered with,
restrained , and coerced their employees in the exercise of the rights
guaranteed in Section 7 of the Act.
All the 27 employees against whom we have found that the respond-
ents discriminated desire to return to their former positions in the
employ of the respondents , except Ernest Lemoine and Francis Pas-
trano. On January 29, 1938, Pastrano was reemployed by the re-
spondents . At the time of the hearing he was no longer in the
respondents ' employ, but he does not desire to return to work for
the respondents . Ernest Lemoine was rehired by the respondents on
January 29, 1938, and was still working for the respondents at the
time of the hearing.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE .
We find that the activities of the respondents set forth in Section
III above, occurring in connection with the operations of the re-
spondents described in Section I above, have a close, intimate, and
substantial relation to trade, traffic,. and commerce, among the several
States and with foreign countries, and have led, and tend to lead, to
labor disputes burdening and obstructing commerce and the free flow
of commerce.
V. THE REMEDY
Having found that the respondents engaged in certain unfair labor
practices, we shall order them to cease and desist therefrom. In order
to effectuate the policies of the Act, and as a means of removing and
avoiding the consequences of the respondents' unfair labor practices,
it is essential that in aid of our cease and desist order the respond-
ents be directed to take certain affirmative action, more particularly
described below.
We have found that the respondents discriminated against the 27
employees listed in Appendix A in regard to their hire and tenure of
employment. We shall order the respondents to offer reinstatement
to all 27 of these employees, except Ernest Lemoine and Francis Pas-
trano, who do not desire reinstatement. In addition, since the strike
WE-INBFiRGER BANANA- COMPANY, INC. 813
was caused in substantial part by the respondents' unfair labor prac-
tices, we shall order the respondents, upon application, to offer rein-
statement to their former or substantially equivalent positions to those
employees who went out on strike and have not since been fully rein-
stated.21 The reinstatement of the employees listed in Appendix A
and of the employees who went on strike shall be effected in the
following manner : All employees hired after the commencement of
the strike shall, if necessary to provide employment for those to be
offered reinstatement, be dismissed. If, thereupon, by reason of a
reduction in force there is not sufficient employment immediately
available for the remaining employees, including those to be offered
reinstatement, all available positions shall be distributed among such
remaining employees in accordance with the respondents' usual
method of reducing their force, without discrimination against any
employee because of his union affiliation or activity, following a sys-
tem of seniority to such extent as has heretofore been applied in the
conduct of the respondents' business. Those employees remaining
after such distribution, for whom no employment is immediately
available, shall be placed upon a preferential list prepared in ac-
cordance with the principles set forth in the previous sentence, and
shall thereafter, in accordance with such list, be offered employment
in their former or substantially equivalent positions, as such em-
ployment becomes available and before other persons are hired for
such work.
We shall also order the respondents to make whole the 27 employees
listed in Appendix A for any loss of pay they may have suffered by
reason of the respondents' discrimination in regard to their hire and
tenure of employment, by paying to each of them, except Ernest
Lemoine and Francis Pastrano, a sum of money equal to the amount
which he normally would have earned as wages from the date of the
respondents' discrimination against him to the date of the offer of
reinstatement or placement on a preferential list, as set forth above,
and, in the cases of Lemoine and Pastrano, from the date of the
respondents' discrimination against them to the date of their reinstate-
ment, less the net earnings 22 of each during that period.
n Matter of Jeffery-DeWitt Insulator Co. and Local No. 455, United Brick and Clay
Workers of Amer., 1 N. L. it. B. 618, enf 'd, Jeffery-DeWitt Insulator Co. v. N. L. R. B.,
91 F. (2d ) 134 (C. C. A. 4, 1937 ), cert. denied , 302 U . S. 731 (1937) ; Matter of Biles-
Coleman Lumber Co. and Puget Sound District Council of Lumber and Sawmill Workers,
4 N. L. it . B. 679, enf'd , N. L. R. B . v. Biles-Coleman Lumber Co., 98 F. ( 2d) 16 (C. C. A.
9, 1938).
22 By "net earnings" is meant earnings less expenses , such as for transportation, room,
and board, incurred by an employee in connection with obtaining work and working else-
where than for, the respondent , which would not have been incurred but for his unlawful
discharge and the consequent necessity of his seeking employment elsewhere. See Matter
of Crossett Lumber Company and United Brotherhood of Carpenters and Joiners of
America, Lumber and Sawmill Workers Union, Local 2590, 8 N. L. it. B. 440 . Monies
814 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
We shall also order the respondents to make whole the employees
who have been on strike for any loss of pay they may suffer by, reason
of the respondents' failure to reinstate them upon application follow-
ing the issuance of this order by payment to each of them respectively
of a sum of money equal to that which he would normally have earned
as wages during the period from 5 days after the date of such applica-
tion for reinstatement to the date of the offer of employment or place-
ment upon a preferential list, as set forth above, less the net earnings
of each 23 during that period 24
We shall also order the respondents to post notices on their docks
stating that their employees are free to become or remain members of
the Union and that the respondents will not discriminate against any
employee because of such membership.
As previously set forth, immediately preceding the strike, and dur-
ing and after the strike, many discriminatorily discharged employees
of the respondents who sought to work or to apply for work on the
respondents' docks experienced difficulty in entering and remaining
in the Parish of St. Bernard, or in entering and remaining on the re-
spondents' docks. Such difficulty was caused by the actions of the
respondents' watchmen and of the deputy sheriffs, who, as previously
set forth, were paid by the respondents and took orders from the re-
spondents. On numerous occasions these watchmen or deputies or-
dered the discriminatorily discharged employees to stay off the docks
and out of the Parish and threatened to shoot or jail them if they dis-
obeyed these orders. We shall, therefore, order the respondents to
provide all employees or individuals endeavoring to work for the
respondents, or seeking employment with or reinstatement by the
respondents at their docks or other places of employment, reasonable
means of access to said docks or .other places of employment, which
means of access shall not operate discriminatorily against said persons
because of their membership in or activity on behalf of the Union or
any other labor organization of the respondents' employees, and which
shall not operate to interfere with, restrain, or coerce said persons in
the exercise of the rights guaranteed in Section 7 of the Act. We shall
also order the respondents to prohibit their watchmen and special
received for work performed upon Federal , State, county , municipal , or other work-relief
projects are not considered as earnings , but, as provided below in the Order, shall be
deducted from the sum due the employee, and the amount thereof shall be paid over to
the appropriate fiscal agency of the Federal , State, county , municipal , or other govern-
ment or governments which supplied the funds for said work -relief projects . Matter of
Republic Steel Corp . and Steel Workers Organ . Comm., 9 N . L. It. B. 219 , enf'd, as modified
as to other issues, Republic Steel Corp. v. N. L. R. B., 107 F. (2d) 472 (C. C. A. 3).
u See footnote 22, supra.
24 Matter of Biles -Coleman Lumber Co. and , Puget Sound District Council of Lumber and
Sawmill Workers, 4 N. L. It . B. 679, enf 'd, N. L. R . B. v. Biles -Coleman Lumber Co.,
98 F. (2d ) 18 (C. C. A. 9, 1938) ; Matter of Republic Steel Corp . and Steel Workers
Organ. Comm ., 9 N. L. R . B. 219, enf'd , as modified as to other issues, Republic Steel Corp.
v. N. L. It. B., 107 F. (2d) 472 (C. C. A. 3).
WEINBERGE'R BANANA UO'MPANY, INC. 815
deputies from interfering with, restraining, or coercing their dock
employees in the exercise of the rights of these employees to self-
organization, to form, join, or assist labor organizations, 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 'and protection, and to take effective action to
enforce this prohibition.
VI. THE QUESTION CONCERNING REPRESENTATION
We have pointed out above that on October 25, 1937, the respondents
showed their unwillingness to bargain collectively with the Union, and
that subsequently the employees went on strike partly because of this
conduct of the respondents.
We find that a question has arisen concerning the representation of
employees of the respondents.
VII. THE EFFECT OF THE QUESTION CONCERNING REPRESENTATION UPON
COMMERCE
We find that the question concerning representation which has
arisen, occurring in connection with the operations of the respondents
described in Section I above, has a close, intimate, and substantial re-
lation to trade, traffic, and commerce among the several States and
with foreign countries, and has led, and tends to lead, to labor disputes
burdening and obstructing commerce and the free flow of commerce.
VIII . THE APPROPRIATE UNIT
The petition as amended at the hearing alleges that the respond-
ents' dock employees, including foremen, but excluding clerical
and office employees, guards and deputies, and supervisory officials,
constitute an appropriate bargaining unit. At the hearing, the
Union's officers testified that they desired a unit of dock employees,
including foremen, but excluding clerical and office employees, watch-
men, deputy sheriffs, superintendents, and paymasters. The respond-
ents did not 'dispute the appropriateness of the unit sought by the
Union. The unit sought by the Union is a normal industrial unit,
and we see no reason for not finding it appropriate.
We find that the employees of the respondents at their docks, includ-
ing foremen, but excluding office and clerical employees, watchmen,
paymasters, deputy sheriffs, and superintendents constitute a unit
appropriate for the purposes of collective bargaining, and that said
unit will insure to employees of the respondents the full benefit of
the right of the employees to self-organization and to collective bar-
gaining, and otherwise effectuate the policies of the Act.
816 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
IX. THE DETERMINATION OF REPRESENTATIVES
The Union did not introduce in evidence any signed membership
cards or applications, or records of dues payments, or other evidence
establishing the extent of its membership. Under the circumstances,
we find that the question which has arisen concerning representation
of employees of the respondents can best be resolved by means of an
election by secret ballot.
Since the respondents have, by engaging- in various unfair labor
practices, interfered with the exercise by their employees of the
rights guaranteed the employees by the Act, we shall not now fix the
date, for the election. We shall hold the election, however, and
specify the pay roll to be used to determine eligibility, upon receipt
of information from the Regional Director that the circumstances
permit a free choice of representatives unaffected by the respondents'
unlawful acts.
Upon the basis of the above findings of fact and the entire record
in the case, the Board makes the following :
CONCLUSIONS OF LAW
1. United Dock and Fruit Workers' Union is a labor organization,
within the meaning of Section 2 (5) of the Act.
2. By discriminating in regard to the hire and tenure of employ-
ment of the 27 employees listed in Appendix A, thereby discour-
aging membership in a labor organization, the respondents 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 'their employees
in the exercise of the rights guaranteed in Section 7 of the Act, the
respondents have engaged in and are engaging in unfair labor, prac-
tices, within the meaning of Section 8 (1) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices
affecting commerce within the meaning of Section 2 (6) and (7) of
the Act.
5. By discharging Vern F. Fisher and John Serra, the respondents
have not engaged in unfair labor practices, within the meaning of
Section 8 (3) of the Act.
6. The respondents have not engaged in unfair labor' practices,
within the meaning of Section 8 (5) of the Act.
.7. A question affecting commerce has arisen concerning the repre-
sentation of employees of the respondents, within the meaning of
Section 9 (c) and Section 2 (6) and (7) of the Act.
8. The dock employees of the respondents, including foremen, but
excluding office and clerical employees, watchmen, deputy sheriffs,
WEINBERRGER BANANA 'CO'MPANY, INC. 817
paymasters, and superintendents constitute a unit. appropriate for
the purposes of collective bargaining, within the meaning of Section
9 (b) 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 that the
respondents, Weinberger Banana Co., Inc.,. and Weinberger Sales Co.,
Inc., and their officers,, agents, successors, and assigns shall :
1. Cease and desist from :
(a) Discouraging membership in United Dock and Fruit Workers'
Union or any other labor organization of their employees, by dis-
charging or refusing to reinstate any of their employees, or in any
manner discriminating in regard to the hire and tenure of employ-
ment or any terms or conditions of employment of their employees
because of membership in or activity in connection with any such
labor organization;
(b) Preventing or interfering with, because of membership in or
activities on behalf of United Dock and Fruit Workers' Union or
any other labor organization of their employees, the access to their
docks or other places of employment of their employees or any indi-
viduals endeavoring to work for the respondents, or seeking em-
ployment with or reinstatement by the respondents;
(c) In any other manner interfering with, restraining, or coercing
their employees in the exercise of the rights of these employees to
self-organization, to form, join, or assist labor organizations, to bar-
gain collectively through representatives of their own choosing, and
to engage in concerted activities for the purposes 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) Offer to the 27 persons listed in Appendix A, with the excep-
tion of Ernest Lemoine and Francis Pastrano, and upon application
offer to those employees who went on strike on October 27, 1937, and
thereafter, immediate and full reinstatement to their former or sub-
stantially equivalent positions, without prejudice to their seniority
and other rights and privileges previously enjoyed by them, in the
manner set forth in. the section entitled "The remedy" above, placing
those employees for whom employment is not immediately available
upon a, preferential list in the manner set forth in said section, and,
thereafter, in said manner, offer them employment as it becomes
available ;
HIS DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(b) Make whole the persons listed in Appendix A for any loss
of pay they may have suffered by reason of the respondents ' discrimi-
nation in regard to their hire and tenure of employment by payment
to each of them, except Ernest Lemoine and Francis Pastrano, of
a sum of money equal to the amount which each normally would have
earned as wages during the period from the date of such discrimina-
tion against him to the date of the respondents ' offer of reinstate-
ment or placement upon the preferential list, and, in the cases of
Ernest Lemoine and Francis Pastrano , from the date . of such dis-
crimination to the date of their reinstatement by the respondents,
less the net earnings 25 of each of them during said period; provided,
that the respondents shall deduct from the amount otherwise due
to each of the aforesaid persons a sum equal to that received by him
for work performed upon Federal , State, county , municipal , or other
work-relief projects during the period for which the back pay is due
him under the terms of this Order, and shall pay any such amount
deducted to the appropriate fiscal agency of the, Federal , State,
county, municipal , or other government or governments which sup-
plied the funds for said work -relief projects;
(c) Make whole the employees who went on strike on October 27,
1937, and thereafter , ordered to be offered reinstatement in para-
graph ( a) above, for any loss of pay they may suffer by reason of
the respondents ' refusal to reinstate them upon application following
the issuance of this Order , by payment to each of them respectively
of a sum of money equal to that which he would normally have
earned as wages during the period from 5 days after the date of
such application for reinstatement to the date of the offer of employ-
ment or placement upon the preferential list required by paragraph
(a) above, less the net earnings 25 of each during that period; pro-
vided that the respondents shall deduct from the amount otherwise
due to each of these individuals a sum equal to that received by him
for work performed upon Federal , State, county, municipal , or other
work-relief projects during the period for which back pay is due
him under the terms of this Order, and shall pay any such amount
deducted to the appropriate fiscal agency of the Federal , State,
county, municipal , or other government or governments which sup-
plied the funds for said work -relief projects;
(d) Provide all employees or individuals endeavoring to work for
the respondents, or seeking employment with or reinstatement by
the respondents , at their docks or other places of employment, rea-
sonable means of access to said docks and places of employment,
which means of access shall not operate discriminatorily against said
25 See footnote 22, supra.
WE-INBEiRGER BANANA C'O'MPANY, INIC. 819
persons because of their membership in or activity on behalf of
United Dock and Fruit Workers' Union or any other labor organiza-
tion of the respondents' employees, and which shall not operate to
interfere with, restrain, or coerce said persons in the exercise of the
rights guaranteed by Section 7 of the Act;
(e) Prohibit all their watchmen and special deputies from inter-
fering with, restraining, or coercing their dock employees in the
exercise of the rights of these employees to self-organization, to
form, join, or assist labor organizations, to bargain collectively
through representatives of their own choosing, and to engage in con-
certed activities for the purpose of collective bargaining or other
mutual aid and protection; and take effective action to enforce this
prohibition ;
(f) Post immediately in conspicuous places on their docks, and
keep posted for a period of at least sixty (60) consecutive days from
the date of posting, notices to their employees stating: (1) that the
respondents will cease and desist as provided in paragraphs 1 (a),
(b), and (c) of this Order; (2) that the respondents will take the
affirmative action required by paragraphs 2 (a), (b), (c), (d), and
(e) of this Order; and (3) that the respondents' employees are free
to become or remain members of United Dock and Fruit Workers'
Union, and that the respondents will not discriminate against any
employee because of membership in that- organization;
(g) Notify the Regional Director for the Fifteenth Region in
writing within ten (10) days from the date of this Order what
steps the respondents have taken to comply herewith.
AND IT IS FURTHER ORDERED that the complaint in so far as it
alleges that the respondents have engaged in unfair labor practices
within the meaning of Section 8 (5) of the Act, and that the re-
spondents have discriminated in regard to the hire and tenure of
employment of Vern F. Fisher and John Serra, be, and it hereby
is, dismissed; and that the complaint in so far as it alleges that the
respondents have discriminated in regard to the hire and tenure
of employment of William Cramer, Everitt Green, Robert Jackson,
Joseph C. Perry, W. W. Minor, and Ernest (Siki) Worthy, be,
and it hereby is, dismissed without prejudice.
DIRECTION OF ELECTION
By virtue of and pursuant to the power vested in the National
Labor Relations Board by Section 9 (c) of the National Labor
Relations Act, and pursuant to Article III, Section 8, of National
Labor Relations Board Rules and Regulations-Series 2, it is hereby
DIRECTED that, as part of the investigation authorized by the Board
to ascertain representatives for the purposes of collective bargaining
820 DECISIONS OF "NATIONAL LABOR RELATIONS BOARD
with Weinberger Banana Co., Inc., New Orleans, Louisiana, and
Weinberger Sales Co., Inc., New Orleans, Louisiana, an election by
secret ballot shall be conducted at such time as the Board shall
hereafter direct, under the direction and supervision of the Regional
Director for the Fifteenth Region, acting in this matter as agent
of the National Labor Relations Board, and subject to Article III,
Section 9, of said Rules and Regulations, among the employees of
Weinberger Banana Co., Inc., and Weinberger Sales Co., Inc., em-
ployed by said respondents at their docks in St. Bernard Parish,
Louisiana, during a pay-roll period which the Board shall specify.
in the future, including foremen, and excluding clerical and office
employees, watchmen, deputy sheriffs, paymasters, and superin-
tendents, to determine whether or not they desire to be represented
by United Dock and Fruit Workers' Union for the purposes of
collective bargaining.
APPENDIX A
Allen, Robert
Barbier, Charles
Battaglia, Sam J.
Bianca, Frank
Bradley, Norman
Branch, Strad
Callahan, Henry
Cannon, W. Faris
Carnahan, Daniel
Clark, Joseph Alton
Ceuz, Oscar Santa
Gonzales, Ramon E.
Harding, Chester
Hartley, Millard R.
Jenkins, Elijah
Jones, Peter
Kelly, James
Kewley, John
Lemoine, James (Curtis)
Lemoine, Ernest
Mani, Sam
Pastrano, Francis P.
Riccardi, Joseph
Roeder, James
Schmidt, Henry
Shanahan, R. A.
Tony, Louis
MR. WILLIAM M. LEISERSON took no part in the consideration of
the above Decision, Order and Direction of Election.