Upland Citrus Association

National Labor Relations Board - Board Decisions

Jun 29, 1940

24 N.L.R.B. 1136 (N.L.R.B. 1940)

In the Matter Of UPLAND CITRUS ASSOCIATION and CITRUS PACKING
HOUSE WORKERS' UNION No. 20915
Case No. C-1138.-Decided June 29,1940
Citrus Fruit Packing Industry-Employee : agricultural laborer individuals
employed by cooperative packing house or plant in packing of citrus fruits not
employed as agricultural laborers-Interference , Restraint , and Coercion: ex-
pressed opposition to labor organization in posted notice, during period when
employees were forming labor organization ; statements disparaging labor or-
ganization by foremen=Company-Dominated Union: charges of, not sustained-
Discrimination : charges of , as to three employees , not sustained.
Mr. Frank A. Mouritsen, for the Board.
Mr. Ivan G. McDaniel, of Los Angeles, Calif., for the respondent:
Mrs. Iva Davis, of Upland, Calif., for Local No. 20915.. -
Davidson and Bartlett, by Mr. Lowell E. Bartlett, of Ontario, Calif.,.
for the Association.
Mr. Stanley D.. Metzger, of counsel to the Board.
DECISION
AND
ORDER
STATEMENT OF THE CASE
Upon charges and amended charges- duly filed by Citrus Packing
House Workers' Union No. 20915, herein called Local No. 20915, .the
National Labor Relations Board, herein called the-Board, by the
Regional Director for the Twenty -first Region (Los Angeles, Cali
fornia ), issued its complaint dated September 27, 1938, against Upland,
Citrus Association , Upland, California , herein called the respondent,
alleging that the respondent had engaged in and was engaging in
unfair labor practices affecting commerce, within the meaning of Sec-
tion 8 ( 1), (2), and ( 3) and Section 2 (6) and ( 7) of the National
Labor Relations Act, 49 Stat . 449, herein called the Act. Copies of
the complaint and accompanying notice of hearing were duly served'
upon . the respondent and Local No. 20915.
Concerning the unfair labor practices , the complaint alleged in sub-
stance : ( 1) that the respondent discouraged membership in Local No.
20915 by discriminating in regard to the hire and tenure of employ-
ment of ( a) Ernest Davis and Iva Davis , because they joined and
24 N. L . R. B., No. 127.
,1136
UPLAND CITRUS ASSOCIATION 1137
assisted Local No. 20015 , by reducing the number of hours of work
given them since on or about July 7, 1937, by discharging said Ernest
Davis and Iva Davis on or about September 4, 1937, and by refusing
to reinstate them on or about January 3 , 1938; and ( b) Earl Gibson,
because he joined and assisted Local No. 20915 , by refusing to rein-
state him on or about January 3 , 1938; (2 ) that the respondent on or
about July 1, 1937, and since that time, has dominated , interfered
with, directed , supported , and controlled the acts, conduct , and ' for-
mation of Upland Citrus Association Plant Employees , a labor organ-
ization, herein called the Association ; ( 3) that the respondent urged,
persuaded , and warned its employees to refrain from joining Local
No. 20915 or remaining members thereof ; ( 4) and that by the fore.
going activities and others the respondent interfered with, restrained,
and coerced its employees in the exercise of the rights guaranteed
them in Section 7 of the Act.
The respondent , - in its answer dated October 10, 1938, denied that
it had engaged in unfair labor practices , and, in addition, set forth :
(1) that all its employees are agricultural laborers and are therefore
not employees within the meaning of Section 2 (3) of the Act; (2)
that it is not engaged in and its operations do not affect interstate
commerce ; and (3) that for the foregoing reasons the Board is without
jurisdiction over it. The respondent moved to dismiss the complaint
on these grounds . The motion is hereby denied.
Pursuant to notice, a hearing was held in Los Angeles , California,
on November 29, 30, December 1, 2, 5, 6, 7, 14, 15 , 16, 27, and 28, 1938,
before Dwight W. Stephenson , the Trial Examiner duly designated
by the Bard. The Board and the respondent were represented by
counsel; . Local No. 20915 by a duly authorized representative. The
respondent , at the outset of the hearing , again moved to dismiss the
.complaint on the grounds stated in its answer . The Trial Examiner
reserved ruling on the motion . The motion is hereby denied.
On December 3, 1938 , after the hearing had commenced, the Associa-
tion was served with a copy of the complaint and a notice of hearing.
'Iii its answer , dated December 6, 1938, the Association stated that the
Board -had no jurisdiction in the proceeding over the Association
because it was not a party respondent to the complaint, and that the
proceedings denied said Association due process of law because testi-
mony and evidence had been heard and received before the Association
had been served with a copy of the complaint . The answer further
denied the allegations in the complaint with respect to the respondent's
domination of and interference with the Association.
After receiving said answer on December 8, 1938, the Regional
Director informed counsel for the Association that the transcript of
the proceedings prior to the service of the complaint on said Associ-
1138 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ation were available for his inspection. The hearing was adjourned
for such purpose by the Trial Examiner from December 8 to Decem-
ber 14, 1938. On December 14 the Trial Examiner overruled a motion
to dismiss made, for the reasons stated in its answer, by the Associa-
tion, but stated that upon a showing that the Association counsel had
-been precluded from making a defense by reason of lack of -access to
the transcript, he would reverse his ruling and adjourn the hearing
until a defense could be prepared, and further that, if so requested
he would order such witnesses as had already testified to be produced
for the purpose of cross-examination by counsel for the Association.
Counsel for the Association made no showing of any kind and with-
drew from the hearing. It further appears that the president and a.
director of the Association had actual notice of the pendency of this
proceeding prior to the opening of the hearing., The Board has con-
sidered the Association's motion to dismiss and the Trial Examiner's
ruling thereon. The ruling of the Trial Examiner is hereby affirmed.
At the hearing full opportunity to be heard, to examine and -cross-
examine witnesses, and to introduce evidence bearing on-the issues
.was afforded all parties. During the course of the hearing the Trial
Examiner made numerous rulings on motions and on objections to
the admission of evidence. The Board has reviewed . the rulings of
the Trial Examiner acid finds that nog prejudicial errors were com-
mitted. The rulings are hereby affirmed.
On January 19, 1939, the Board, acting pursuant to Article II, Sec-
tion 37, of National Labor Relations Board Rules and Regulations-
Series 1, as amended, ordered-the proceeding transferred to and con-
tinued before it, and further ordered that, pursuant to Article II,
Section 38 (d); of said Rules and Regulations, Proposed Findings of
Fact, Proposed Conclusions of Law, and Proposed Order should be
issued and that the parties should have the right to file exceptions to
them, to. request oral argument before, the Board,. and to request per-
mission to file briefs with the Board.
Pursuant to permission 'granted by the Trial Examiner, the -re-
spondent on January 20,' 1939, filed a brief with the Board. The
Association also filed a brief, on January 23, 1939.
On April 23,1940, the Board issued and duly served upon the parties
Proposed Findings of.Fact, Proposed Conclusions of Law, and Pro-
posed/'Order. The respondent, on May 31, 1940, filed exceptions to the.
-Proposed Findings of Fact, Proposed. Conclusions of Law, and Pro-
posed Order, and on June 18, 1.940, its brief in support thereof. On
May 27, 1940, and May 29, 1940, respectively, Iva Davis and Earl'
Gibson filed their separate exceptions to the Proposed ' Findings of
Fact, Proposed Conclusions of Law, and Proposed Order. Iva Davis;
also moved the Board for a new hearing. The motion is, hereby
UPLAND CITRUS ASSOCIATION 1139
denied. The Board has considered the exceptions to the Proposed
Findings of Fact, Proposed Conclusions of Law., and Proposed Order,
and, except as they are consistent with the findings , conclusions, and
order set forth below , finds no merit in them.
Upon the entire record in the case, the Board makes the following :
FINDINGS.OF FACT
I. THE BUSINESS OF THE RESPONDENT
Upland Citrus Association is a corporation organized under the
Cooperative. Marketing Association Laws of California , and has its
principal office and place of business in Upland, California. Two
hundred and nine, citrus -fruit , growers comprise the membership of
the respondent. They own, among them, a total of 18401/4 acres of
orchard land , composed of about 733/4 acres of grapefruit and 17661/2
acres of oranges . The respondent is engaged in the business of fumi-
gating, spraying ; and' dusting the citrus -fruit groves of its members,
in picking the fruit, and in washing, grading, and packing the fruit
for shipment and market . Upon applying for membership in the
respondent, each grower becomes bound by its bylaws , rules, and
regulations.
The activities of the respondent involve, primarily , the packing of
oranges and grapefruit . The packing of oranges is carried on at
about the same time as the picking . Navel oranges are worked on
from early January to sometime in April, and Valencia oranges from
May to October. The. grapefruit season is approximately that of
Valencia oranges . Thus, the slack period in the respondent 's plant is
generally from about October to January, when its plant is practically
shut down.
The respondent , together with other and similar local associations,
is affiliated. with a district exchange, the Ontario-Cucamonga Fruit
Exchange . There are 25 similar district exchanges throughout Cali-
fornia, each being a corporation with its board of directors made up
of one representative from every affiliated association .. The respond-
ent has a written. agreement with its district exchange providing
that all the fruit controlled by the . respondent is to be marketed
through the district exchange. This contract with the district
exchange specifically refers to and embodies the agreement which
is in turn entered into by the district exchange and the California
Fruit Growers Exchange. ' .
The California Fruit Growers Exchange is also a corporation
organized under the laws of California, its membership, and board
of directors being composed of one representative from each of the
district ' exchanges. The agreement between the California Fruit
Growers Exchange and its district exchanges establishes the former
1140 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
as the general agent of each district exchange in all matters con-
cerning the marketing of citrus fruits.
In accordance with these agreements, all the fruit controlled by
the respondent is. marketed through its district exchange and the
California Fruit Growers Exchange. When loaded into railroad
cars at the siding of the respondent, each shipment of fruit is made
in the name of the California Fruit Growers Exchange as both the
consignor and consignee, and the bill of lading is delivered to the
California Exchange.
During the 12-month period ending October 31, 1937, the. Cali-
fornia Fruit Growers Exchange and its affiliated associations pro-
duced nearly 24 million boxes of citrus fruits, representing 75.3 per
cent of the oranges, 92.1 per cent of the lemons, and 78.2 per cent of
the grapefruit- grown in the entire State of California. For the
year ending October 31, 1938, it was estimated that members of
local associations affiliated with the California Fruit Growers Ex-
change would produce approximately 76.8 per cent. of the oranges,
92.3 per cent of the lemons, and 74.8 per cent of the grapefruit pro-
duced in California.' i
It is estimated that during the two citrus seasons preceding the
bearing held in this case, the destination of all the fruit produced
in California was as follows :
ORANGES
Percent
Shipped in interstate commerce------------------------------ 70
Shipped in intrastate commerce ----------------------------- 15
Otherwise disposed of--------------------------------------- 15
LEMONS
Shipped in interstate commerce----------------
Shipped in intrastate commerce------------------------------ 13
Otherwise disposed of--------------------------------------- 15
GRAPEFRUIT
Shipped in interstate commerce------------------------------ 41
Shipped in intrastate commerce -----------------------------l)
Otherwise disposed of--------------------------------------1 59
The fruit listed as "otherwise disposed of" is converted into various
manufactured products,' donated to charity, or otherwise eliminated
from the market.
'About 75 per cent of Arizona citrus-fruit acreage is also affiliated with the Cali-
fornia Fruit Growers Exchange in the marketing of its fruit.
2 Exchange 'Orange Products Company, a totally owned subsidiary of the California
Fruit Growers, Exchange, and Exchange Lemon Products Company which is owned by
practically all the lemon shippers who are affiliated with the California Fruit Growers
Exchange, manufacture byproducts such as juices. oils, and peel products. The annual
sales of each Products Company have been well over 1 million dollars , and 90 per cent
of the products are shipped outside the State of California.
UPLAND CITRUS ASSOCIATION 1141
Fruit Growers Supply Company, a subsidiary supply department
of the California Fruit • Growers Exchange, furnishes orchard and
packing materials to affiliated grower members and controls timber'
holdings, lumber mills, and box-manufacturing plants. Approxi-
mately:1'5 per cent of the lumber used comes from outside California.
The California Fruit Growers Exchange has built up a sales
organization that, under direction from its headquarters in Los
Angeles, covers the United States, Canada, and a number of foreign
markets. District sales offices are maintained in 57 of the larger
cities of North America, and there are 32 additional suboffices in
smaller centers: Advertising campaigns, featuring the trade-mark
"Sunkist," are conducted throughout the United States and in
Canada and Great Britain, and advertisements in periodicals, recipe
books, consumer educational material, and dealer displays are cir-
culated all over the world .3 The agreement between the California
Exchange and, the district exchanges lists as one of its principal pur-
poses and objects, "That the business engaged in, being interstate in
character, to secure at all times full `compliance with -the laws of the
United States concerning Interstate Commerce . . ."
Figures as to the respondent's own pack covering the seasons in-
dicated are as follows :
1936-37 season 1937-38 season
Total pro- Shipped in Total pro- Shipped in
duction in Interstate duction in Interstate
boxes Commerce boxes Commerce
Percent Percent
oranges______________ 286,645/ 70 Oranges -------------- 433,944 69
Grapefruit------------ 24,557 65 Grapefruit ----------- 48,412 76
H. THE EMPLOYEES OF THE RESPONDENT
An orchard owner affiliated with the respondent employs his own
help to do. his nursery and culture work and to cultivate, irrigate,
fertilize, and prune throughout his groves. For the balance of the
operations required in the production and marketing of citrus 'fruits,
he looks to the respondent. •
The general categories of workers employed by the respondent
consist. of pickers, fumigators, sprayers, dusters, floor laborers, .
;graders, and packers.
.The pickers pick the fruit. from the trees in the orchards of the
respondent's members and place it in field boxes. On an average
pay roll, when oranges are being picked in normal fashion, the re-
spondent employs about 110 pickers. After the fruit is picked and
8 During the season of . 1907-08 , the advertising expenditure of the California Fruit
Growers Exchange was $6 , 912, but by 1936-37-the expenditure had grown to $1,311,819.
283035-42-vol. 24-73
1.142 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
put into field boxes, the grower himself generally hauls the fruit; to
the:.respondent's packing house or plant, but in some, cases the re-
spondent may supply the trucking facilities and charge its member
an . additional amount:
When the fruit arrives at the packing -house it is handled by the
floor laborers. . They. unload the field. boxes from the •trucks,.'move'
the fruit about through the various rooms' of the . packing house,
and dump it into the. washing tanks and onto the proper. conveyor
belts or hoppers. The floor laborers do all the.unloading, trucking,
and. handling of the fruit in the packing house, the stacking and
loading of the boxes . of fruit which have been packed, and also
unload and handle 'the shooks ..(the component parts of the boxes)
and make up and repair the packing boxes and picking ladders. An
average pay roll of the 'respondent lists about 35 men, employed in
this capacity.. .
The. oranges: unloaded on the receiving platform at the packing
plant, are moved into a basement storage room and permitted to stand
for about 2 days, to allow some of the moisture in the rind to
evaporate. While in this room, the fruit is sometimes gassed in
order to.bring out abetter color. After these 2 days of storage, the
fruit is dumped upon a conveyor belt. The first step is up from the
basement on an automatic dump into a presorter where all the leaves,
trash, and damaged oranges are removed. From here the fruit trav-
els into a soaking tank, passing between brushes which scrub each
orange with soapy water. Next the fruit goes into tanks containing a
solution of borax ; then past whirling brass rollers and driers ; then
into the waxer where clear wax is applied; and then onto the grading
table for grading.
The graders are generally women, the average pay roll showing
about 30 employees in this classification. . As the, fruit passes along
.the moving belt, one group of graders, removes the inferior oranges
(dills), another the standard grade,.and another the second grade.
After being graded, the fruit goes. to'the bins. where it is packed:
Packers stand' alongside the bins, and these employees, also women,
wrap each orange and place it ' in a box according to a. set pattern
of packing.. About 65 packers are listed on the respondent's aver=
age pay roll,' their rate of pay being determined . by the number of
boxes packed. This is the only piece work done in the packing house,
both the floor laborers and the graders being paid on an hourly
basis.
As the packer finishes with a box, it is placed upon another moving
belt which leads into the lidding machine. .The, covered box of
fruit then continues its journey on the conveyor belts, being carried
into the precooler room. The oranges are stored in this room for
about 10 days-and after that time are trucked out to the loading plat-
UPLAND.' CITRUS ASSOCIATION 1143
forms and placed in the railroad cars, ready for the market., Grape-
fruit 'is-.handled in the same. manner as oranges except that, after
sizing, some, are stored loose in boxes.
All the employees named in the complaint were employed by. the
respondent as packers, graders, or general. packing-house laborers,
and their duties were performed, inside the packing plant or on the
loading platform.
The'. respondent contends that. all its employees are "agricultural
laborers," the packing=house workers as well as the pickers, fumi
gators, sprayers, and, dusters. Section 2 (3) of the Act excludes
"agricultural laborer" from the definition of the term "employee"
and consequently from the jurisdiction granted to the Board. We
are, in the present case, not concerned with all the labor employed
by the respondent. We are concerned with its packing-house workers
only.
An examination of the operations and functions performed by the
.respondent and of the duties of the 'employees here involved clearly
demonstrates that they are not agricultural laborers within the -mean
ing of Section '2 (3). As stated above, the respondent is engaged at
its packing plant in the business of receiving, handling, washing,
grading,, assembling, packing, and shipping citrus fruit. These serv-
ices are performed in a large plant owned by, the respondent, which
is equipped with specialized machinery for the' mass-production han-
dling and processing of citrus fruit. After the fruit. is grown and
received at the plant from the various growers, it is placed upon a
conveyor-belt' system which ' automatically carries it ' to various me=
chanical devices. which sort, wash, disinfect, dry, wax, record, and
size the'fruit, which is thereafter graded and, packed in boxes. After
packing, the boxed fruit is precooled, after which it is loaded for
shipirient by the respondent's employees into refrigerator freight cars
on. a, railroad. siding adjacent to the plant. The work of the em-
ployees ' here involved relates exclusively ' to the operations just
described: , Their duties,. like those of workers in other 'industrial
plants; are, coordinated with the operation- of the machines which
automatically handle and process the fruit. '
The respondent's business and the operations of its employees look
not_ toward the production of fruit but toward its marketing, and
to that end the respondent is affiliated by contract with the Ontario-
Cucamonga Fruit Exchange and the California Fruit Growers Ex-
change. The individual fruit growers ship their fruit to the respond-
ent for the purpose of packing and marketing, and they have no
control whatever over it after delivery to the respondent for that
purpose. After the fruit is prepared, packed, and assembled for
marketing by the respondent, it is shipped by the respondent to the
various markets at the direction of the California Fruit Growers
61
4144 DECISIONS OF NATIONAL LABOR RELATIONS BOARD'
Exchange, which organization-acting in conj unction with:. the
Ontario-Cucamonga.Fruit Exchange-determines "the timewhen,.the
market where, and the price at which the citrus fruit of the. local
association will be marketed."
For the respondent to claim that, upon these facts, its'-employees
are agricultural laborers, is to ignore the fundamental nature of. the
respondent's business. The work of the respondent carried on by its
packing-house employees is not concerned with farming, operations.
The production of the fruit is the business of the grower who. delivers
it to the respondent. Thereafter the activities of the respondent with
relation to the fruit are part of the wholly separate business of
marketing.
The respondent argues that its activities are in reality the activities
of the growers themselves, that it is merely the instrumentality which
the growers employ to process and market their fruit as an incident of
their general farming operations, and that hence its employees are
agricultural laborers since they are actually employed by the. growers.
The argument, however, is without merit.. In the first place, the
respondent is engaged in operations which are not part of the fruit
growers'. ordinary activities. Secondly, the. respondent is no. mere
instrumentality of its affiliated growers. It is a wholly separate
legal entity having fixed contractual obligations which the growers
cannot at will alter. Under the terms of the membership. in the
respondent and the. agreements of the respondent with the California
Fruit Growers Exchange and the District Exchange, the growers
completely relinquish the preparation and marketing of their fruit
to the respondent and the Exchanges. They agree that all the fruit
required by the respondent shall be marketed through it. The grow-
ers do not even retain the right to determine when the fruit shall be
picked. While the identity of the fruit passing through the plant is
not lost until it is graded and recorded, the growers have no control
over the fruit after it is delivered to the plant. They have nothing to
do with the day-by-day management of the plant, and have no control
whatever over the employees here involved, who are -hired, 'directed
in their work, and discharged solely by the respondent.
We find that the individuals employed by the respondent in its
packing house are, not employed as agricultural laborers, and are
employees within the meaning of the Act.-'
*North Whittier Heights Citrus Association v. N. L. It. B.,, 109 F. ( 2d) 76 (C. C. A. 9),
cert. denied May 20, 1940 , enf'g Matter of North Whittier Heights Citrus Association and
Citrus Packing House Workers Union; Local No. 21091, 10 N. L. R. B. 1269; Cf. Matter
of American Fruit Growers , Inc., et at. and Fruit d Vegetable Workers, Sub-Local of No.
191, UCAPAWA, C. I. 0., 10 N. L. R . B. 316 ; Matter of George G . Averill, et at . and Fresh,
Fruit & Vegetable Workers Union , Local 78, C. 1. 0., 13 N. L. R. B. 411: Matter of
Grower-Shipper Vegetable Assocication of Central California, et at. and Fruit and Vege-
table Workers' Union of California , No. 18211, 15 N. L. R. B. 322.
UPLAND CITRUS \\ASSOCIATION
III. THE ORGANIZATIONS INVOLVED
1145
.Citrus Packing House Workers' Union No. 20915 is a labor organi-
zation, ;affiliated with the American Federation of Labor, admitting
to its membership packing-house employees of the respondent.
Upland Citrus Association Plant Employees is an unaffiliated labor
organization, admitting to its membership employees of the
respondent.
IV. THE UNFAIR LABOR PRACTICES
A. Interference, restraint, and coercion
The complaint alleges that the respondent , by its officers , agents,
and servants , on many occasions between on or about May 20, 1937,
and the date of the complaint , urged, persuaded , and warned its em-
ployees ` to refrain • from joining Local No. . 20915 or remaining members
thereof, and by such acts interfered with , restrained , and coerced its
employees in the exercise of the rights guaranteed in Section 7 of
the Act
In ,June 1937 an American Federation of Labor organizer began
to,* organize, Local No. 20915 in Upland .' Organizational meetings
were held in'June , on July 9 and 14, and thereafter . • Packing-house
employees of the respondent ' attended these meetings . The respond-
ent immediately - indicated to its employees its antipathy to their
membership . and activity in' Local No. 20915. In July 1937 the re-
spondent posted a notice on the bulletin board in the packing-house,
stating, inter cclia, the following :
Employers intend to : conduct ., their business . . . free from
unlawful acts, demands or interference or misleading represen-
tations of labor organizers or outside agitators.,
Membership in any union is not necessary in order to work in
the citrus industry . . . and employers insist upon the right to,
meet and bargain ,with their workers, collectively or individually,
whether these employees are union members or not. The indus-
try strongly condemns any policy of intimidation or coercion
and pledges its .resources to protect all citrus workers in their
right to. work and will insist that all law enforcing agencies fur-
nish adequate and impartial protection to' persons and property.
Congress has recognized the necessity of dealing with agricul-
... tural' labor on a different basis than industrial , labor . Because of
this and , the perishable nature of agricultural products and the
many uncontrollable factors in producing and marketing them
which might cause ruinous results to workers , growers and con-
sum.ers alike , the citrus industry while not opposed to collective
bargaining , must be kept free from unjustified strikes, and the
imposition of "hiring halls" and the "closed shop."
1146 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
This industry is opposed to the collection of funds from workers
with no adequate explanation of the intended use or proper ac-
counting, and it is opposed to dealing with irresponsible organi-
zations purporting to represent labor. It recommends appropri-
ate steps to- be taken to bring about responsibility on the part of
labor unions both as to their method of dealing and accounting of
funds received from workers.
The effect of this notice was necessarily to discourage membership
in labor organizations. By referring to union organizers as "outside
agitators" who make "misleading representations," by calling unions
"irresponsible organizations purporting to represent labor," by stating
that it was "opposed to the collection of funds. from workers with no
adequate explanation of the intended use or proper accounting," and
by stating, that "membership' in any union is not necessary to work in
the citrus industry," the respondent disparaged and denounced. labor
organizations and notified its employees that,its policy was opposed to
that enunciated by the Congress in the Act. Nor could the respond-
ent's declaration be regarded by. the employees in an abstract light.
Having been posted by the respondent att the time when Local No.
20915 was being organized, the notice's references to labor organiza-
tions of necessity applied to Local No. 20915.
We find that, by posting the above-mentioned notice, the respondent
interfered with, restrained, and coerced its employees in the exercise
of their rights to self-organization, to form, join, or assist labor or-
ganizations, to bargain collectively ; through representatives of their
own choosing, and to engage in concerted activities for the purposes of
collective bargaining or other mutual aid or protection.
The respondent further indicated its antipathy to the self-organiza-
tion of its employees by interrogating its employees about their union
membership and by. the anti-union statements of its supervisory
employees.
Earl Gibson, an employee and union member, testified that shortly
after the American Federation of Labor organizer had addressed a
meeting In Upland in early June 1937, A. Fitzgerald; a general fore-
man in the packing house; told Gibson that he had attended the meet-
ing, that the organizer was a "Red," and that he did not think' that
anybody 'would be "foolish enough to join an 'organization like'that."
Gibson testified further that sometime between July 11 and 14,-1937,.
Fitzgerald told him 'that he had read about a packing house burning
and that it "was probably union activities or union men that did it."
The organization campaign. having been. launched in -June: 1937,
Local No. 20915 held meetings attended by employees, of the respond-
ent on July 9 and 14 and thereafter. The July 14 meeting, which was
open to the public, was attended by Fitzgerald,. Loren Sampson, a
UPLAND.` CITRUS ^ ASSOCIATION 1'147
packing foreman; and A. J. Neilson, the manager of the. respondent.
Sampson testified that he attended-"out of curiosity." At the meeting,
many of `the respondent's employees joined Local No. 20915. ;Mrs.
Nora Shiffer, an employee and union member, testified that-on or about
July 19, 1937, Fitzgerald told her that if the employees thought that
they 'were going to join Local No. 20915 and "run" the packing house
they had "another thought coming," and that some of them were. not
going to get their jobs back the following year. . Mrs. Shiffer further
testified that on or about July 24, 1937, Fitzgerald told her that em-
ployees never "got any place" with unions, that the Davises, people
who "never got anywhere in life themselves" got the employees into
such things, and that he would rather see the employees join "the house
union." .
Mrs. Frieda Pennington, a union member and employee,. testified
that on or, about July 20, 1937, Fitzgerald asked her why the girls had
joined.a union, and stated that they should get jobs elsewhere if they
were not satisfied and that there were "other" ways of getting rid of.
employees.. Mrs. Pennington testified that she understood Fitzgerald
to mean the American Federation of Labor when he referred to "a
union." Mrs. Pennington testified further that on or about July 25,
1937,. Sampson asked her why the girls had joined Local No. 20915.
Mrs. Iva Davis, a union member and employee, testified that on or
about July 20 Sampson told her "some of you girls think you are
pretty damn smart by joining Local No. 20915. You will get to finish
the season out, but you will never work here again."
Mrs. Shiffer testified that in the part of August 1937, Samp-
son asked her why she had joined Local No. 20915 and stated that if
she joined the "House Union," her job would be'protected,-and "if you
don't, it will be or else." .' Mrs. Shiffer further testified that on or about
September 4,'1937, the last day of the packing season, Fitzgerald
named. some employees who would not return to work the following
season, among whom were Ernest and Iva Davis; but said to Mrs.
Shifter, "You haven't caused any trouble here about the union."
It appears that Neilson, in' June 1937, told Fitzgerald and Sampson
to make no remarks about any union and to express no preference. for
or against any union. However, Sampson admitted having spoken to
employees often about unions, claiming that the employees had
broached the subject. Fitzgerald and Sampson, in their testimony,
denie'd'making the statements attributed to them. Their denials, how-
ever, in many instances qualified,, are 'not convincing. On the other
hand, the-testimony of each of the witnesses who testified as to such
anti-union statements by Fitzgerald and Sampson corroborated that
of each of the others. We find, upon the evidence as a whole, that
Fitzgerald and Sampson made the statements attributed to them in the
1148 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
testimony discussed. From their statements, the employees could in-
fer only that it was not-to their best interests to become or remain
members of Local No. 20915. Fitzgerald and Sampson were'both fore-
men having the power to hire and discharge employees. The doctrine
of respondeat superior. applies, and the respondent is responsible for
the actions of Fitzgerald and Sampson in this respect, since, despite
its warnings to the foremen, it took no effective means to stop repeated
violations of the Act .r.
.. We find from the foregoing that the respondent has interfered with,
restrained, and coerced its employees in the exercise of their rights 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 bargain-
ing or other mutual aid or'protection.
B., The alleged domination of, interference with , and support . of • the
Association
Shortly after Local No. 20915 became active in the respondent's
packing house, in June and early July 1937, Roy Fink, a bookkeeper
in the employ of the respondent, and another employee, consulted
an attorney, organized the Association, solicited members therefor,
and arranged ' ieetings thereof. Fink testified that "the only thing
we were interested in was keeping any outside union from coming in
there." During that period, when Local No. 20915 and the Associa-
tion were being organized, Foremen Fitzgerald and Sampson ex-
pressed their preference for a "House Union," Sampson stating that
it would "protect" the employees' jobs. The Association collected
only $6 in'initiation fees 'and no dues, made no attempt to bargain
with -the respondent, and did not meet after August 31, 1937. There
is no evidence other than the isolated statements of Fitzgerald and
Sampson connecting the. respondent in any way with the Association.
Although the circumstances surrounding the -formation of the Asso-
ciation appear suspicious, there is not sufficient evidence upon which
to base a finding that the' respondent dominated or interfered with
the formation or administration of the Association or contributed
support thereto.
We find that the respondent has not dominated or interfered with
the formation or administration of the Association or contributed
financial or other support to.it.
sSwift & Company v . N. L. R. B ., 106 F. ( 2d) 87 (C. C. A. 10), enf'g as mod. Matter
of Swift & Company and Amalgamated Meat Cutters and Butcher Workmen of North
America, Local No. 641, 'and United Packing House Workers Local Industrial Union No.
800, 7 N. L. R. B. 269: See N. L. R. B. v. The A. S . Abell Company , 97 F. (2d) 95i
(C. C. A. 4 ), enf'g as mod . Matter of The A. S. Abell Company and. International Print-
ing and Pressmen 's Union, Baltimore Branch, Baltimore Web Pressmen 's Union, No. 31,
5 N. L. R . R. 644.
UPLAND CITRUS ASSOCIATION 1149
C. The alleged discriminations in regard to hire or tenure of -
employment
The complaint alleges that the respondent discriminated against
Ernest Davis and Iva 'Davis because they joined and assisted Local
No. 20915, by reducing the number of hours of work given them,
discharging them, and refusing to. reinstate them; and that the re-
spondents discriminated against Earl Gibson because. he joined and
assisted a labor organization, by refusing to reinstate him to his
regular position of employment; and that the respondent thereby
discouraged membership in Local No. 20915.
The respondent's packing ' house is in operation from January
until approximately October every year. Annually the employees
are laid off in about October and.return to work in January when
the respondent resumes packing. operations. There is a conflict in
the evidence as to the method by which employees were informed to
return to.' work. Some witnesses testified that each year, prior to
the start of , the new season,' employees came to the plant to ask for
work, while. others testified that the respondent's foremen notified
employees, to return. Our conclusion, based on all the evidence, is
that employees obtained. work by means of both methods, there
being no uniform procedure.
We consider below each of thee alleged discriminations.
Ernest Davis had worked for the respondent for six seasons as
a loader and icer of railway cars. In those,6 years, during at least
some of the slack periods from October to January, he had been
employed repairing boxes. In the period from October 1937 to Janu-
ary 1938, however, the respondent, instead of giving that work to
Davis, gave it to William Cheney, president of the Association, and
another employee. Davis was vice president of Local No. 20915, and
had been a prime mover in its organization. ' Fitzgerald testified
that Davis was not given the box-repair work in October 1937 be-
cause. Fitzgerald wished to spread the off-season work among the
employees: and Davis had had "his share" of box.repair work in
previous years:
Shortly after the close of the 1937 season, on or about September
7, 1937, Davis asked Fitzgerald if he would be given a,job the fol-
lowing season. Fitzgerald replied that he did not know, since he
himself was not sure of returning. Davis then reported to Neilson
that he had been discharged by Fitzgerald. Neilson asked Fitzgerald
if this was true. When Fitzgerald told Neilson what. he had said,
Neilson stated to Davis that Fitzgerald's statement did not constitute
a discharge. We agree. Davis then stated that at any rate "it is
just the principle of the thing," that he had sold a washing-machine
patent and' did not want the' packing-house job anymore. There-
C)
1150 DECISIONS OF' NATIONAL LABOR 'RELATIONS BOARD
after, Davis never, applied for. 'a job at • the respondent's. packing
house.' Davis died on June 18, 1938. ^..
Iva Davis, the.widow of Ernest Davis, had worked for the respond-
ent for six seasons as a packer. Mrs. Davis had been very active in
the organization of Local No. 20915 by soliciting membership among.
the employees, and claims that she was given less grapefruit to pack
after joining Local No. 20915 than she had been given prior thereto s
The respondent's records of grapefruit packing, covering the grape=
fruit season from May to September 1937 indicate that there is no:
merit in Mrs. Davis' claim, since she received substantially; as much
.work packing grapefruit after she joined and became active in Local
No. 20915 as she did before:
At the close of the packing season, on or about September'.4, 1937,
Mrs. Davis was laid off together with the other' packers. On or "about
December'30, 1937, just.before the beginning of 'the following season,
she telephoned Sampson, and asked him about her job. According
to Mrs. Davis, Sampson replied, "I don't have any place for you this
year." She thereupon hung up the receiver and did not thereafter
apply fo'r work. `Sampson and Fitzgerald , both testified, however,
that Sampson had merely told Mrs.' Davis, "I have my starting crew
all lined up." ' In view of the' uncorroborated nature of, Mrs: Davis'
testimony, we accept Sampson's version of the 'conversation and .find
that Sampson's statement did not justify' an inference,by 'Mrs. Davis
that she would not be permitted to work for the respondent in the 1938
season;' particularly in view of the fact that, the respondent always
began its season with a small starting crew and increased the number
of its packing-house employees as' the packing season progressed:
Earl Gibson had worked for' the respondent 'since' 1929'as a loade'r'
and watchman, ' and in the precooling room when it was `operating:
He joined Locale No. 20915 on or about July 14, 1937. ' In August
1937 Gibson received permission to take a vacation and• did. not work
during the remainder of the 1937 season. On or about December 10,
1937, Gibson asked Fitzgerald for a job during the following season.
Fitzgerald replied that he did not think that 'Gibson wanted to work
for the respondent because Gibson had "told it around" that..he had
been laid off for joining Local No. 20915: Fitzgerald added that.
Gibson knew that that was not true. After Gibson' denied zhaviiig
made the,statement, Fitzgerald told hire to. conic back later regarding
a job. " During the first week of the new season; in January .1938,
Gibson' returned and again asked Fitzgerald for a job, and was again
told: to return .later.' When he. returned within a week, there was. a
new. employee, Henderson,. doing work which Gibson 'could have
Packers of grapefruit earn more than " do packers of oranges ,and, for ' this' reason,
experienced , packers were used for, work; on grapefruit . Mrs. Davis was one .of the
respondent 's most experienced packers.
•0
UPLAND CITRUS ASSOCIATION 115.1
done:`.. Fitzgerald had promised Henderson -a job in November. 1937.
Gibson testified that he, never thereafter applied for work, believing it
would .be fruitless since new employees had been hired. . However,
the precoolihg work, which Gibson had done in past seasons, had not
yet begun, and was not to begin until late in February as usual.
Since Gibson knew "this, we 'do not believe he was justified in assuming
that a subsequent request .for a job would have been unavailing.
While we regard with grave suspicion the failure of the Davises
and Gibson to obtain reemployment with the respondent at the start-
of the 1938 season, and the failure of Ernest Davis to obtain the
box-repair work at the end of the 1937 season, from the record
as a whole we do not find that the respondent ,discriminated with
respect ' to their. hire or tenure of employment or any terms or
conditions of their employment.
V.: THE EFFECT OF • THE UNFAIR LABOR PRACTICES • UPON COMMERCE
We., find..,that the.. activities of the respondent, set forth in Sec-
tion IV, A, above, occurring in.connection with the operations of the
respondent described in Section I above, have a -close, intimate, and
substantial relation to trade, traffic, and commerce among the several
States,, and tend to lead to labor disputes burdening and obstructing
commerce and the free flow of commerce.
THE REMEDY
Having found that the, respondent has interfered with, restrained,
and . coerced its - employees in the exercise of • the rights guaranteed
by,Section; 7:of. the: Act, we shall-,.order the,respondent to cease and
desist therefrom.
Having found that the respondent has not engaged in unfair labor
practices:'within the meaning of Section 8 (2) or (3) of the Act,
>w.e `shall',.order the-complaint, in: so far as it contains .allegations of
such unfair labor - practices, dismissed. '
Upon the basis :of the foregoing findings of fact and upon the entire
record in the :proceeding, .the Board makes the following :
CONCLUSIONS OF LAW
1., Citrus Packing House Workers' Union, No. 20915,.and Upland
`Citrus. Association Plant' Employees are labor organizations within
the meaning of Section 2 (5) of the Act.
2. The individuals employed by the respondent in its packing
house at Upland, California, • are employees within the meaning of
,Section 2 (3) of the Act.
3. The respondent, by interfering with, restraining, and coercing
its employees in the exercise of the rights guaranteed in Section 7
1152 DECISIONS OF NATIONAL' LABOR RELATIONS BOARD
of the Act, has engaged in and is engaging in unfair labor practices;
within the'meaning of Section 8 (1) ' of the Act.
"4. The aforesaid' unfair labor practices are unfair labor practices
affecting commerce,. within the';meaning of Section 2 (6) and (7)
of the Act.
5. The respondent has not engaged in unfair labor practices;
within the meaning of Section 8 (2) of the Act.
6. The respondent has not engaged in unfair labor: practices,
within the meaning of Section 8 (3) of the Act.
.ORDER
Upon the basis of the ,foregoing findings of fact and conclusions of
law and pursuant to Section 10 (c) of the National Labor Relations
Act, the National Labor Relations ' Board' hereby orders that the
respondent , Upland Citrus Association , Upland, California, and; its
officers, agents , successors , and assigns , shall:
1.. Cease and desist from interfering with , restraining , or coercing
its employees in the exercise of their right to self-organization, to
form, join, or assist labor organizations , to bargain collectively
through representatives of their own choosing , or to engage in con-
certed activities for the purposes of collective bargaining or other
mutual aid or protection , as guaranteed iin Section 7 of the A.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the'Act
(a) Post immediately in conspicuous places at its packinghouse,
,and maintain for a period of at least sixty ( 60)- consecutive days
from the date of posting , notices to its employees stating that the re-
spondent will not engage in the conduct from which it. is, ordered to
cease and desist in paragraph 1 of this Order;
(b) Notify the Regional Director for the Twenty-first 'Region: in
writing within ten (10 ) days from the date of this , Order what ,.steps
the respondent has taken to comply herewith.
AND IT IS FURTHER ORDERED that, the complaint be, and it hereby
is, dismissed in-,so far as it alleges that the respondent has engaged in
unfair labor practices within the meaning of Section 8 (2) and (3)
of the Act.
MR. EDWIN S. SMrrg took no part in the consideration of the above
Decision and Order