Grower-Shipper Vegetable Association of Central California

In the Matter of GROWER- SHIPPER VEGETABLE ASSOCIATION OF CENTRAL CALIFORNIA and FRUIT AND VEGETABLE WORKERS' UNION OF CALI- FORNIA, No. 18211 In the Matter of F. V. BIRBECK and FRUIT AND VEGETABLE WORKERS' UNION OF CALIFORNIA, No. 18211 In the Matter of BRUCE CHURCH COMPANY and FRUIT AND VEGETABLE WORKERS' UNION OF CALIFORNIA, No. 18211 In the Matter of 0. 0. EATON and FRUIT AND VEGETABLE WORKERS' UNION OF CALIFORNIA, No. 18211 III the Matter of FARLEY FRUIT COMPANY and FRUIT AND VEGETABLE WORKERS' UNION OF CALIFORNIA, No. 18211 In the Matter of H. P . GARIN COMPANY and FRUIT AND VEGETABLE WORKERS' UNION OF CALIFORNIA, No. 18211 In the Matter of E. E. HARDEN PACKING COMPANY and FRUIT AND VEGETABLE WORKERS' UNION OF CALIFORNIA, No. 18211 In the Matter of HOLME & SEIFERT and FRUIT AND VEGETABLE WORKERS' UNION OF CALIFORNIA, No. 18211 In the Matter of IOE-KIST PACKING COMPANY and FRUIT AND VEG- ETABLE WORKERS' UNION OF CALIFORNIA, No. 18211 Ill the Matter of M. L. KALICH & COMPANY and FRUIT AND VEGETABLE WORKERS' UNION OF CALIFORNIA, No. 18211 In the Matter of J. G. MARINOVICH amts FRUIT AND VEGETABLE WORKERS' UNION OF CALIFORNIA, No. 18211 In the Matter of S. RIANDA PACKING COMPANY and FRUIT AND VEGETABLE WORKERS' UNION OF CALIFORNIA, No. 18211 In the Matter of J. A. SIMMONS, INC. and FRUIT AND VEGETABLE WORKERS' UNION OF CALIFORNIA, No. 18211 In the Matter of E. H. SPIEGL and FRUIT AND VEGETABLE WORKERS' UNION OF CALIFORNIA, No. 18211 In the Matter of D. A. STORM, INC. and FRUIT AND VEGETABLE WORKERS' UNION OF CALIFORNIA, No . 18211 In the Matter of WATSONVILLE EXCHANGE , INC. and FRUIT AND VEGETABLE WORKERS' UNION OF CALIFORNIA, No. 18211 15 N. L. R. B., No. 39. 322 GROWER-SHIPPER VEGETABLE ASSOCIATION OF CENTRAL CALIF . 323 In the Matter of A. ARENA & COMPANY, LTD. and FRUIT AND VEGETABLE WORKFAS' UNION OF CALIFORNIA , No. 18211 In the Matter of FARMERS PRODUCE COMPANY , INC. and FRUIT AND VEGETABLE WORKERS' UNION OF CALIFORNIA , No. 18211 In the Matter of S. A . GERRARD COMPANY and FRUIT AND VEGETABLE WORKERS' UNION OF CALIFORNIA, No. 18211 In the Matter of W. B . GRAINGER PACKING COMPANY and FRUIT AND VEGETABLE WORKERS' UNION OF CALIFORNIA, No. 18211 In the Matter of MAJOR DISTRIBUTING COMPANY and FRUIT AND VEGETABLE WORKERS' UNION OF CALIFORNIA, No. 18211 In the Matter Of MERRILL PACKING COMPANY, INC., LTD. and FRUIT AND VEGETABLE WORKERS' UNION OF CALIFORNIA , No. 18211 In the Matter of K. R. NUTTING COMPANY and FRUIT AND VEGETABLE WORKERS' UNION OF CALIFORNIA, No. 18211 In the Matter of SALINAS VALLEY VEGETABLE EXCHANGE and FRUIT AND VEGETABLE WORKERS' UNION OF CALIFORNIA, No. 18211 In the Matter Of SALINAS LETTUCE COMPANY and FRUIT AND VEGETABLE WORKERS' UNION OF CALIFORNIA, No. 18211 In the Matter of SEARS BROS. & COMPANY and FRUIT AND VEGETABLE WORKERS' UNION OF CALIFORNIA, No. 18211 In the Matter of THE LESTER STIRLING COMPANY and FRUIT AND VEGETABLE WORKERS' UNION OF CALIFORNIA, No. 18211 In the Matter of PETER A. STOLICH, INC. and FRUIT AND VEGETABLE WORKERS' UNION OF CALIFORNIA, No . 18211 In the Matter of W. R . VAN Noy, INC. and FRUIT AND VEGETABLE WORKERS' UNION OF CALIFORNIA, No. 18211 In the Matter of W. & S. PACKING COMPANY and FRUIT AND VEGETABLE WORKERS' UNION OF CALIFORNIA, No. 18211 In the Matter of WESTERN GROWERS PROTECTIVE ASSOCIATION and FRUIT AND VEGETABLE WORKERS' UNION OF CALIFORNIA, No. 18211 Cases Nos. C 178, C-178a to C-178n, inclusive, C -178p to C-178z, inclusive, and C-178aa to C-178ee, inclusive, respectively.Decided September 15,1939 Lettuce Packing Industry-Employee: agricultural laborer ; individuals em- ployed in packing of lettuce in Salinas -Watsonville District, California, not employed as agricultural laborers-Employer: employers' association as- Labor Organization : union successorship after date of alleged unfair labor 324 DECISIONS OF NATIONAL LABOR RELATIONS BOARD practices ; territorial jurisdiction of successor union though smaller than that of original union held not to affect successorship in the territory included by both-Unit Appropriate for Collective Bargaining: shed workers employed in lettuce packing in Salinas-Watsonville District by each of respondent firms ; no. controversy as to-Representatives : proof of choice : stipulated-Collective Bar- gaining: submission of proposal, after protracted negotiation on basis of exclusive representation, restricting recognition of representation by union to. its members only, respondents ordered to bargain with successor union, but order limited to those respondents whose employees are confined to area in which the successorship is effective-Interference, Restraint , and Coercion. appeal, during negotiations, over heads of bargaining committee to union members urging selection of new representatives ; attempt to impose individual employment contracts during course of negotiations with bargaining committee; organization, by employers' association, of a suppliers' boycott designed to punish an employer for acceding to union contract ; espionage upon union activities by detectives retained by employers' association ; police brutality during strike not attributable to employers-Discrimination: institution, by em- ployers' association of central hiring and card system designed to preclude employment of active union members and leaders ; victims ordered reinstated with back pay ; order directed to employers' association and all respondent members whether employers of the victims or not-Strike: caused by unfair labor practices ; strikers ordered to be offered reinstatement-Complaint: dis- missed as to two respondents unconnected with unfair labor practices and as to one in receivership; dissolution of corporate respondent held no ground for dismissal. Mr. Bertram Edises and Mr. A. N. Somers, for the Board. Mr. George Naus, of San Francisco, Calif., for Grower-Shipper Vegetable Association of Central California, Bruce Church Company, Farley Fruit Company, E. E. Harden Packing Company, S. Rianda Packing Company, D. A. Storm, Inc., K. R. Nutting Company, Salinas Valley Vegetable Exchange, W. R. Van Noy, Inc., W. B. Grainger Packing Company, Holme & Seifert, Ice-Kist Packing Company, W. & S. Packing Company, Farmers Produce Company, Inc., Major Distributing Company, Salinas'Lettuce Company, Peter A. Stolich, Inc., F. V. Birbeck, 0. 0. Eaton, M. L. Kalich & Company, Watsonville Exchange, Inc., Sears Bros. & Company, The Lester Stirling Company, and J. G. Marinovich. Mr. Sidney L. Church, of Salinas, Calif., for Grower-Shipper Vegetable Association of Central California, Bruce Church Company, Farley Fruit Company, E. E. Harden Packing Company, S. Rianda Packing Company, D. A. Storm, Inc., A. Arena & Company, Ltd., K. R. Nutting Company, Salinas Valley Vegetable Exchange, W. R. Van Noy, Inc., W. B. Grainger Packing Company, Holme & Seifert, Ice-Kist Packing Company, W. & S. Packing Company, Major Dis- tributing Company, Salinas Lettuce Company, and Peter A. Stolich, Inc. Mr. Leo T. McMahon, of Santa Barbara, Calif., for Western Grow- ers Protective Association and A. Arena & Company, Ltd. GROWER-SHIPPER VEGETABLE ASSOCIATION OF CENTRAL CALIF. 325 Mr. J. T. Harrington, of Salinas, Calif., for E. H. Spiegl. Mr. H. I. Noland, of Salinas, Calif., for W. B. Grainger Packing Company, Holme & Seifert, Ice-Kist Packing Company and W. & S. Packing Company. Mr. W. C. Theile, of Salinas, Calif., for The Lester Stirling Company and S. A. Gerrard Company. Mr. E. G. Thomas, of Salinas, Calif., for Farmers Produce Com- pany, Inc., Major Distributing Company, Salinas Lettuce Company, and Peter A. Stolich, Inc. Mr. Richard Gladstein, of San Francisco, Calif., for Fruit and Vegetable Workers' Union of California, No. 18211, and United Can- nery, Agricultural, Packing and Allied Workers ofAmerica, Local 18. Mr. Alexander B. Hawes, of counsel to the Board. DECISION AND ORDER STATEMENT OF THE CASE On October 13, 1936, Fruit and Vegetable Workers' Union of California, No. 18211, herein called the Union, filed with the Regional Director for the Twentieth Region (San Francisco, California) charges that Grower-Shipper Vegetable Association of Central Cali- fornia, Salinas, California, herein called the Association or the Grower-Shipper Association, and various members thereof, all re- spondents herein, 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 Rela- tions Act, 49 Stat. 449, herein called the Act. On January 8, 1937, supplementary charges were filed by the Union -against the same respondents. On February 27, 1937, similar charges were filed by the Union against additional members of the Association and against Western Growers' Protective Association, Los Angeles, California. On March 10, 1937, the National Labor Relations Board, herein called the Board, issued, by the Regional Director, separate com- plaints against each of the persons named in the charges, alleging that each had engaged in and was 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 Act. On March 15, 1937, the Board issued an amended and consolidated complaint -against the same persons, respondents herein. On March 16, 1937, the Board, pursuant to Article II, Section 37 (b), of National Labor Relations Board Rules and Regulations-Series 1, as amended, ordered the cases against all the respondents to be consolidated. 199549-39-vol. 15-22 326 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On March 22 and 31, respectively, E. H. Spiegl and Western Grow- ers' Protective Association filed answers to the amended and consoli- dated complaint. The answer of Western Growers' Protective As- sociation denied the allegations of unfair labor practices and, as a separate defense, denied the jurisdiction of the Board and alleged that the Act was unconstitutional on various grounds. The answer of E. H. Spiegl denied the allegations of unfair labor practices, denied that he was a member of the Grower-Shipper Association or had authorized it to act for him, insisted that his operations were entirely intrastate, and denied the jurisdiction of the Board on var- ious grounds. On April 9, 1937, the Grower-Shipper Association and the remaining respondents, except H. P. Garin Company, filed identi- cal motions to dismiss the proceedings and answers to the amended and consolidated complaint. These answers denied all of the allega- tions of unfair labor practices, and most of the other allegations, and raised as defenses the alleged lack of jurisdiction of the Board and unconstitutionality of the Act. These latter grounds were also urged as the basis of the.motions to dismiss. Like the answers of Western Growers' Protective Association and E. H. Spiegl, the mo- tions to dismiss and answers also raised the point that the workers involved were "agricultural laborers" and therefore excluded from the operation of the Act by the definition of "employee" in Section 2 (3). The answers also alleged that Merrill Packing Company, Inc., Ltd. and Peter A. Stolich, Inc., had taken proceedings for the purpose of dissolution and that J. A. Simmons, Inc., had filed a peti- tion for relief under the Bankruptcy Act.' In the case of H. P. Garin Company, H. P. Garin, as Receiver of the assets of the com- pany, filed a special appearance and motion to dismiss on the ground that the Federal district court, by which he had been appointed Receiver, had exclusive jurisdiction. Pursuant to a notice of postponement of hearing duly served upon the parties under date of March 18, 1937, a hearing was held at Salinas, California, from April 12 to May 18, 1937, inclusive, before Charles N. Feidelson, the Trial Examiner duly designated by the Board.. The Board, the Union, and all the respondents named in the complaint except H. P. Garin Company, Merrill Packing Com- pany, Inc., Ltd., and J. A. Simmons, Inc., were represented by counsel and participated in 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. 1 Most of the answers alleged also that the business and property of S. A . Gerrard Company were in the possession and management of a Federal district court receiver, but the answer of S. A. Gerrard Company itself omitted any such allegation. We therefore do not consider it. GROWER-SHIPPER VEGETABLE ASSOCIATION OF CENTRAL CALIF. 327 At the hearing counsel for Grower-Shipper Association, on its behalf and on behalf of the other respondents, renewed the motion to dismiss previously filed. Counsel for Western Growers' Protective Association also moved for dismissal of the proceedings as against it, on the additional ground that Western Growers' Protective As- sociation was not alleged to be an "employer," that there was an improper joinder of causes of action against the respondents, and that there was a fatal variance between the charges filed and the allegations of the complaint. The Trial Examiner denied the motions in so far as they were based upon the ground of uncon- stitutionality and reserved ruling on the motions in so far as they were based upon other ' grounds. Counsel for the Grower-Shipper Association moved to strike out certain paragraphs of the complaint. This motion was denied by the Trial Examiner. Counsel for the Grower-Shipper Association also moved for an order to amend the complaint to state the specific affirmative relief sought. This motion was denied by the Trial Examiner. At the conclusion of the testi- mony in support of the complaint, and again at the conclusion of the hearing, counsel for Western Growers' Protective Association renewed his motion to dismiss the complaint so far as that respondent was concerned, adding as a ground that the evidence was insufficient to show its responsibility for the unfair labor practices alleged. At the close of the hearing counsel for other respondents also renewed motions to dismiss previously made and in addition moved to dismiss on the ground of lack of evidence to sustain the complaint. Ruling was reserved on these motions by the Trial Examiner. During the course of the hearing the Trial Examiner made various rulings on objections to the admission of evidence and on motions other than those mentioned above. On May 29, 1937, pursuant to Article II, Section 37, of National Labor Relations Board Rules and Regulations-Series 1, as amended, the Board issued its order transferring the proceeding to itself. On July 30, 1937, counsel previously appearing for the Union filed a petition in the name of Fruit and Vegetable Workers' Union of California, "heretofore known as Fruit and Vegetable Workers of California, No. 18211," alleging that the membership of the Union had voted to affiliate with the Committee for Industrial Organiza- tion, that about July 8, 1937, the charter of the Union had been revoked by the American Federation of Labor, and that Fruit and Vegetable Workers' Union of California was the successor to the Union. The petition asked that it be made a part of the record, that Fruit and Vegetable Workers' Union of California be substituted as the charging party in these cases, and that the petitioner be treated thereafter as the sole successor to the Union. Copies of this petition were served upon counsel for the respondents on July 31. 1937. On 328 DECISIONS OF NATIONAL LABOR RELATIONS BOARD August 30 the Board issued, pursuant to Article II, Section 38 (c), of National Labor Relations Board Rules and Regulations-Series 1, as amended, a notice of reopening of the record for the purpose of receiving further evidence, giving notice of a further hearing to be held on September 10, 1937. The purpose of such further hearing was stated to be limited to receiving evidence as to the change of name and affiliation of the charging party in the proceeding. Copies of this notice were served upon counsel for the parties. Pursuant to notice, a hearing was held on September 10, 1937, in San Francisco, California, before Clifford O'Brien, the Trial Exam- iner duly designated by the Board. The Board, the petitioner, and the respondents, except H. P. Garin Company and E. H. Spiegl,. were represented by counsel and participated in the hearing. Full opportunity to be heard, to examine and cross-examine witnesses,. and to introduce evidence bearing on the issue stated in the notice of reopening was afforded all parties. During the course of the hear- ing the Trial Examiner made several rulings on objections to the admission of evidence. At the close of this hearing the motions made by counsel for the respondents at the close of the first hearing were- renewed. The Board has reviewed the rulings of the Trial Examiners on motions and on objections to the introduction of evidence both at the, first hearing and at the hearing on the reopening of the record and finds that no prejudicial errors were committed. The rulings are hereby affirmed. The motion of H. P. Garin to dismiss the complaint as againsf H. P. Garin Company is granted. The motion of West- ern Growers' Protective Association that the complaint be dismissed as against it, on the ground that the evidence was insufficient to show its responsibility for the unfair labor practices alleged, is also granted. The other motions which were made at the first hearing and renewed at the second, and on which the Trial Examiner made no ruling, are hereby denied. On June 16, 1938, the Board, acting pursuant to Section 10 (b) of the Act, and Article II, Section 7, of National Labor Relations Board Rules and Regulations-Series 1, as amended, issued an amendment to the amended and consolidated complaint for the purpose of con- forming the complaint to the proof adduced at the hearing. Copie& of this amendment were served upon counsel for all parties, together with a notice that the parties had 10 days from receipt of the notice in which to file an answer to the amendment. Notice was also given that a request for a hearing might be submitted with the answer, and that in any event application for oral argument or permission to file briefs might be made within 10 days from receipt of the notice. No application for oral argument or for permission to file briefs was GROWER-SHIPPER VEGETABLE ASSOCIATION OF CENTRAL CALIF. 329 filed by any of the parties. An .answer to the amendment, filed on behalf of all respondents, including J. A. Simmons, Inc., Merrill Packing Company, Inc., Ltd., and Peter A. Stolich, Inc., but except- ing H. P. Garin Company, E. H. Spiegl, A. Arena & Company, Ltd., and Western Growers' Protective Association, admitted certain alle- gations of the amendment and denied others, and in addition, alleged that the Board was without jurisdiction to issue the amendment be- cause it contained no notice of a hearing and that certain allega- tions of the amendment relating to events occurring after the date of the original complaint were not the proper subject matter of the amended complaint. Answers filed on behalf of A. Arena & Com- pany, Ltd., and Western Growers' Protective Association denied all the allegations of the amendment, alleged that the amendment was void because no opportunity had been given to oppose its issuance, and prayed that it be stricken. These prayers are hereby denied. No answer was filed on behalf of H. P. Garin Company or E. H. Spiegl. On July 14, 1939, pursuant to Article II, Section 37, of National Labor Relations Board Rules and Regulations-Series 2, the Board issued an order directing that no Trial Examiner's Intermediate Re- port should be issued in the proceeding but directing the issuance of Proposed Findings of Fact, Proposed Conclusions of Law, and a Proposed Order. At the same time it granted the parties the right, within 20 days from the receipt of the Proposed Findings of Fact, Proposed Conclusions of Law, and Proposed Order, to file exceptions, to request oral argument before the Board, and to request permis- sion to file a brief with the Board. Copies of this Order were served upon all parties. On July 14, 1939, pursuant to Article II, Section 37 (c), of said Rules and Regulations, the Board issued Proposed Findings of Fact, Proposed Conclusions of Law,, and a Proposed . Order, copies of which were served upon all parties. The respondent, Peter A. Stolich, Inc., thereafter filed exceptions to a statement in the Proposed Findings that no evidence had been submitted sup- porting the allegation. that that respondent had been dissolved, and to the failure of. the Proposed Order to dismiss the proceeding as to said respondent on the ground that it had been dissolved on June 16, 1937. Said respondent also filed a request for oral argument and permission to file a brief' in support of such exceptions. In view of the modifications of the findings which have been made as a result of these exceptions, no oral argument nor brief in support thereof appears necessary and the request is therefore hereby denied. No other exceptions, requests for oral argument before the Board, nor requests for permission to file briefs with the Board were filed by any of the parties. 330 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Upon the entire record in the case, the Board makes the following : FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENTS Among the respondents the following are corporations organized and existing under the laws of the State of California : Farley Fruit Company, H. P. Garin Company (both of San Francisco, Califor- nia) ; A. Arena & Company, Ltd., Farmers Produce Company, Inc. (both of Los Angeles, California) ; Watsonville Exchange, Inc. (of Santa Cruz County, California) ; Ice-Kist Packing Company, J. A. Simmons, Inc., D. A. Storm, Inc., W. B. Grainger Packing Company, Major Distributing Company, The Lester Stirling Company, Peter A. Stolich, Inc., W. R. Van Noy, Inc. (all of Monterey County, Cali- fornia). The respondent S. A. Gerrard Company is a corporation organ- ized and existing under the laws of the State of Ohio, but qualified to do business in the State of California. The respondents F. V. Birbeck, Bruce Church Company, O. O. Eaton, E. E. Harden Pack- ing Company, Holme & Seifert, S. Rianda Packing Company, E. H. Spiegl, K. R. Nutting Company, Salinas Valley Vegetable Exchange, Salinas Lettuce Company, Sears Bros. & Company, and W. & S. Packing Company, are individuals or partnerships engaged in busi- ness in the county of Monterey, State of California. The re- spondents M. L. Kalich & Company and J. G. Marinovich are individuals or partnerships engaged in business in the State of California, but not in the county of Monterey. The Grower-Shipper Association is a non-profit corporation or- ganized and existing under the laws of the State of California, hav- ing its principal office at Salinas, California. It is an association of grower-shippers and handlers of lettuce and other vegetables in the counties of Monterey, Santa Cruz, and San Benito, California, making up what is known as the Salinas-Watsonville district. West- ern Growers' Protective Association is a non-profit corporation organized and existing under the laws of the State of California, having its principal office at Los Angeles, California. It is an asso- ciation of growers, shippers, distributors, and handlers of vegetables in California and Arizona. All the respondents in this case, aside from the Grower-Shipper Association and Western Growers' Protective Association, are en- gaged in the packing and shipping of lettuce in the Salinas-Watson- Ville district. All except five were members of the Grower-Shipper Association 2 in the summer of 1936. 2 The respondent firms which were not members of the Grower -Shipper Association are : E. H. Spiegl , Watsonville Exchange, Inc., S. A. Gerrard Company, Salinas Valley Vegetable Exchange, and Peter A. Stolicb, Inc. GROWER-SHIPPi;R VEGETABLE ASSOCIATION OF CENTRAL CALIF. 331 At the height of the season approximately 3,000 workers are em- ployed in the Salinas-Watsonville packing sheds. However, during the season, which lasts from approximately April 1 to December 1, the amount of employment fluctuates radically. The amount of employment at any particular shed varies from time to time and, as a consequence, a large proportion of the workers are forced to move from shed to shed in quest of employment. Only it relatively few retain work with the same shed throughout the entire season. In the off season from December to March many of the workers migrate to the Imperial Valley in southern California and to southern Ari- zona, which enjoy a short lettuce season during these months. The Salinas-Watsonville district is the chief source of lettuce shipped in carlots in the United States. During its season, over 75-per cent of all carlot shipments of Jettuce in the United States originate there. For the year 1936 the Salinas-Watsonville district shipped 25,857 carlots out of a total of 49,878 carlots shipped in the entire United States. Practically all of these shipments are made to points outside of the State of California. A carlot comprises approximately 300 crates. During the fall of 1936, the average value of a carlot was $600 f. o. b. Salinas. A report compiled by the United States and California Departments of Agriculture,3 shows that in the year 1936, Salinas-Watsonville lettuce was distributed in carlots to 290 cities in 46 States, the District of Columbia, and Canada. Out of a total of 25,855 carlots accounted for, only 79 were billed to points within the State of California. The record does not give figures as to the shipments of the particular firms named as respondents in this case, but it does show that large.quan- tities of lettuce packed by each one of them are shipped to all parts. of the United States. The extremely perishable nature of lettuce, after it is picked, requires that the packing, icing, and shipping proceed without interruption. The process has been so organized that ordinarily lettuce is moving out in refrigerator cars at latest by the evening of the day on which it is picked. From the fields the lettuce is brought. to the sheds either in field crates or in trailers. At the sheds it is cleaned, trimmed, graded, and packed in crates with paper and ice. The crates are then loaded on refrigerator cars standing on sidings by the sheds, the cars are iced, and the doors sealed. Actually it is not usually more than 3 or 4 hours from the receiving of the lettuce at the packing sheds to its shipment. While there is some latitude in the period in which lettuce can be picked, it cannot be left unpicked more than 3 or 4 weeks after- ripening. Thus a labor dispute interrupting the packing operations- 8L. T. Kirby, Marketing Salinas-Watsonville Lettuce, Summary of 1936 Season, Fed- eral-State Market News Service (March 1937), pp. 15-17. 332 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of the respondents would not only interrupt the flow of lettuce from fields to markets while the dispute was in progress, but would, if it lasted an appreciable period, permanently decrease the amount of lettuce available for the season. . The strike which began on September 4, and lasted until Novem- ber 2, 1936, as discussed below, had both of these effects. During the month of August, shipments out of the Salinas-Watsonville district had averaged about 108 carloads a day. During the week preceding the strike the daily average had reached the figure of 134 carloads. After the strike began, a few carloads of accumulated lettuce moved out, and then all shipments ceased. Shipments began again on Sep- tember 15, when operations were resumed with strikebreakers, but did not reach a normal figure until September 22. The daily average for the month was 61 carload S.4 The result of this interruption was that a certain amount of the lettuce crop was permanently lost, although exact figures are not available.s All of the firms named as respondents have trade-marks registered in the United States Patent Office on the basis of statements that such trade-marks have been used by them in interstate commerce. Many of the respondents have joined in a national advertising cam- paign involving the use of radio, newspaper advertisements, and dealers' service in such cities as New York, Chicago, Pittsburgh, and Des Moines. This campaign has been carried on through the West- ern Growers' Protective Association, and it was estimated at the time. of the hearing that as much as $150,000 might be spent by it in 1937 in advertising lettuce and other crops raised both in California and Arizona. II. APPLICATION OF THE ACT TO PACKINO- SI1;Et) EMPLOYEES In determining, for the purposes of this case, whether the packing- shed workers employed by the respondent firms are "agricultural laborers," as that term is used in Section '2 (3) of the Act,' and therefore excluded from the operation of the Act, we follow a defi- nition contained in United States Treasury Department Regulation 90, Article 601 (1), published March 13, 1936.7 This latter definition of the term "agricultural labor," as used in the Social Security Act, 49 Stat. 620, Section 811 (b), provides that the term ... includes all services performed- op. cit. supra footnote 3. 5 Truck Crop Notes No . 248, Oct. 1, 1936, published by U. S. and California Depart- ments of Agriculture. Section 2 ( 3). "The term `employee' shall . . . not include any individual employed as an agricultural laborer . . , 7 Cf. Matter of American Fruit Growers, Inc., et al. and Fruit h Vegetable Workers Sub-Local of #191, UCAPAWA, C. I. 0., 10 N. L. R. B. 316; Matter of North Whittier GROWER-SJJIPPER VEGETABLE ASSOCIATION OF CENTRAL CALIF. 333 (b) By an employee in connection with the processing of articles from materials which were produced on a farm; also the packing, packaging, transportation, or marketing of those materials or articles. Such services do not constitute "agricul- tural labor" however, unless they are performed by an employee of the owner or tenant of a farm on which the materials in their raw or natural state were produced and unless such processing, packing, packaging, transportation, or marketing is carried on as an incident to ordinary farming .operations as distinguished from manufacturing or commercial operations .. . The packing of lettuce, although it follows immediately upon the field cutting, is an entirely distinct process. The packing sheds them- selves are located almost without exception in town, next to railroad sidings, and generally close to ice sheds. The crews which do the packing are entirely distinct from the field crews which cultivate and eventually cut the lettuce. The skills required in packing and in cultivating are entirely different. The wage scales paid the two groups are also different. While the field crews are generally Oriental and Philippine workers, employees in the shed crews are generally Americans. Of the firms named in this complaint, five apparently pack only lettuce grown by themselves. Three other firms, however, grow no lettuce themselves but purchase all the lettuce which they pack. The remainder, constituting the vast majority, pack not only their own lettuce but also lettuce which they purchase. Of the employees of all but five firms it is thus clear that they are not agricultural laborers under the test stated because their serv- ices are performed entirely or to a greater or less extent on lettuce grown by farmers who are not their employers. But the division of labor between the packing firms and the producers which is illustrated by this fact is also convincing evidence that the packing of lettuce for carlot shipment as carried on in the Salinas-Watsonville district is not "an incident to ordinary farming operations" but rather in the nature of a "commercial operation." s This conclusion excludes the employees of all the respondent firms from classification as "agricul- tural laborers." Heights Citrus Association and Citrus Packing House Workers Union, Local No . 21091, 10 N. L. R. B. 1269. We do not follow , however, all the specific rulings which have been made with respect to this definition. We expressly reject the ruling of the Commis- sioner of Internal Revenue of September 10, 1937, set forth in the American Fruit Growers Decision, for the same reason which impelled us in that Decision to reject it. 'This is in accord with the classification by the United States Bureau of the Census which tabulates under "Census of Business ," as distinguished from "Census of Agri- culture," workers employed by "Packers and Shippers" of "Farm Products-consumer goods" including "Fruits and vegetables ( fresh )." See United States Department of Commerce , Bureau of the Census , Census of Business : 1935, Wholesale Distribution, Vol. I, p. 74. 334 DECISIONS OF NATIONAL LABOR RELATIONS BOARD As stated above, the motions to dismiss the complaint on the ground that the workers involved are agricultural laborers, excluded by the definition of the term "employee" in Section 2 (3) from the operation of the Act, are denied. III. THE UNION The charges in this case were filed by Fruit and Vegetable Work- ers' Union of California, No. 18211. This Union was a State-wide labor organization formed in 1932, and, at the time of the original hearing, was affiliated with the American Federation of Labor. Its headquarters were in Salinas. A sublocal existed at Watsonville. The Union admitted to membership all workers engaged in the vari- ous processes of packing-shed work from the receiving of the lettuce as it is brought to the sheds from the fields through the loading of packed crates on ,freight cars. It did not admit to its membership any field or "stoop" workers. On June 24, 1937, at a regular weekly meeting of the Union, herein also called Local 18211, it was voted that the Union's Bulletin Committee be instructed to "arrange for a C. I. O. meeting as soon as possible." Notices of a mass meeting to be held in the auditorium of the Municipal High School in Salinas on June 30 were thereafter printed and distributed. The meeting on June 30 was attended by about 500 persons, of whom approximately 250 registered as union members. This meeting adopted a resolution "that packing house employees seek immediate affiliation with the C. I. 0." A ballot was also taken on the question : "Are you in favor of the affiliation with the Committee for Industrial Organization?" The results of the balloting showed 238 in favor of affiliation and 12 against. On July 1 the regular weekly meeting of the Union voted to ratify the resolution adopted at the mass meeting and to place the resolu- tion in its minutes. The meeting then voted to adjourn and to bring in an organizer from the Committee for Industrial Organization. The union meeting having adjourned, another meeting was immedi- ately held at the same place. All but four or five of the persons who had attended the union meeting stayed on for the second meeting. The latter was called to order by a C. I. O. organizer. A temporary acting president and a temporary recording and financial secretary were elected. Thereafter, at some time prior to July 12, the charter of Local 18211 was revoked by the American Federation of Labor. ,On July 31 a certificate of affiliation was issued to the group by United Cannery, Agricultural, Packing and Allied Workers of America, an international labor organization affiliated with the Com- mittee for Industrial Organization,9 designating it as Local 18. All 0 Now the Congress of Industrial Organizations. GROWER-SHIPPER VEGETABLE ASSOCIATION OF CENTRAL CALIF. 335 but 2 of the 10 officers of Local 18211 became members of Local 18. Meetings of Local 18 were held at the same place and same time as the meetings of Local 18211 before revocation of its charter. Sub- stantially the same persons who had attended meetings of Local 18211 attended meetings of Local 18 after its organization. The functions of Local 18 were the same as those of Local 18211. Both were chartered to organize packing-house workers. While both. were authorized by their charters to organize field workers, neither local did so, preferring to have such workers organized in separate locals. The territorial jurisdiction of Local 18, which was confined to the Salinas area, is smaller than that of Local 18211, which was authorized to organize throughout California. The practice, however, of Local 18211 was to organize separate sublocals for other districts, such as Watsonville, Santa Maria, and El Centro. In any event, by far the largest portion of membership of Local 18211 was derived from the Salinas area. We find that United Cannery, Agricultural, Packing and Allied Workers of America, Local 18, is the successor to Fruit and Vegeta- ble Workers' Union of California, No. 18211. Since its jurisdiction is confined to the Salinas area, however, our finding as to its succes- sorship will be confined to that area, not including Watsonville io IN. THE BACKGROUND OF THE UNFAIR LABOR PRACTICES In the summer of 1934 the Union called a strike against various shippers in the district, and an Industrial Relations Board was set up to arbitrate the Union's demands. On October 8, 1934, the Board issued its award setting forth the conditions of labor which were to obtain in the packing sheds until September 1, 1935. During the summer of 1935 the Union and the Grower-Shipper Association en- tered into negotiations for a contract to replace the award on its expiration. It was finally agreed that the terms of the award should be extended 1 year to September 1, 1936. This agreement was embodied in letters exchanged between the Union and the Association. Tension between the Uniofi and the Association arose in 1936 as the Union's membership grew and its leadership became more ag- gressive. Various demands made by the Union on individual sheds bore witness to the rising temper of the organization. There were disputes about the switch in certain sheds from women to men trim- mers, and some members of the Association complained that the Union's shed stewards were taking over the functions of the fore- W In addition , there are indications in the record that the Watsonville sublocal of Local 18211 did not follow its parent body into the new affiliation . The record is insufficient, however, to determine what is the present status of the Watsonville group. 336 DECISIONS OF NATIONAL LABOR RELATIONS BOARD men. The most acute incident, however, was the Simmons and Ice-' Kist job action. On May 4 the crew of the Simmons shed threat- ened to walk out the next day unless Simmons complied with certain demands. The more important of these was that he dismiss four employees referred to by the crew as "gun-toters" and "Imperial Valley scabs," and charged by them as having acted as strikebreakers in the Imperial Valley in 1934 or 1935. The crew also demanded a change in the then method of calculating their working time, which they claimed violated the terms of the agreement of 1935. Doss, financial secretary of the Union, appeared at the Simmons shed early on May 5. He repeated the demands of the crew to Sim- mons. When Simmons refused them, the crew walked out and within a short time formed a picket line around the shed. Simmons, who had 30 trailers of lettuce all ready for packing, attempted to cut his loss by having it packed at other sheds. When some were accordingly sent to the Ice-Kist Packing Company, however, Sim- mons' pickets went along. Doss, thereupon, ordered the Ice-Kist crew to quit rather than pack the "hot" lettuce. All but 16 or 18 of 75 or 80 walked out.. The Simmons lettuce was returned, and attempts to pack it elsewhere were unsuccessful. Both sheds re- mained closed for 8 days. The Association almost immediately took action. On May 6 it wrote the Union accusing it of violating the agreement by calling a strike instead of submitting the demands to the grievance commit- tee established by the agreement. Not receiving a reply, the Asso- ciation, on May 7, telegraphed the American Federation of Labor again accusing the Union of violation of the agreement and asking intervention of the parent body. On the same day it again wrote the Union informing it of the appeal to the Federation. On the next day it published in a local paper a nearly full-page advertisement repeating its accusation and setting forth the two letters and the telegram. In passing, it should be noted that, on the stand, the sec- retary of the Association admitted that the agreement contained no restriction on the right to strike and no provision for reference to the grievance committee of any demands of the kind made on Simmons. At about this time the Association also reengaged the services of the-Charles N. Watkins Detective Agency to report on "labor and labor trouble." The activities of this agency will be discussed below in more detail. The reaction of the Association to these strikes, however, is noteworthy as indicating an increasingly belligerent atti- tude adopted in response to the growth in the Union's aggressiveness. Some days later the Simmons and Ice-Kist incidents ended with agreements providing for the discharge from both sheds of several employees whom the crews regarded as "scabs." GROWER-SHIPPER VEGETABLE ASSOCIATION OF CENTRAL CALIF. 337 The Association's advertising during this incident indicated its realization of the value of public support in any controversy with the Union. This and the incident itself led to a resolution of the membership on May 28 authorizing an assessment to cover the ex- pense of employing a public-relations expert. Shortly afterward one Cruse Carriel was hired for this position at a salary of $100 a week. He was recommended by. the advertising firm, of Lord & 'Thomas which had been asked by the Association to find it such an expert. The firm made sure of Carriel 's belief in the "open-shop" principle before making the recommendation . His first instructions from the Association were to become acquainted with the Salinas ,community "and the feeling-with reference to the Shippers and the labor trouble they [had] had." There is no question but that Carriel's job was to secure public support for the Association in its labor relations . While the Asso- ciation's secretary attempted to maintain that his duties were not confined to that purpose, it is clear that his efforts were not to be directed to sales promotion , and that the encouragement of better relations with the farmers to which he' was to devote himself was merely another name for securing the farmers ' support in any labor trouble. But the Association did not rely on Carriel alone. At about the same time, one Henry Strobel was hired ; also to "promote better relations" with the farmers , as well as to "cement the membership" ,of the Association . His salary was set at $300 a month . The de- scription of his duties given by the secretary of the Association is so vague as naturally to arouse suspicion, and one is justified in assum- ing that the activities which Strobel actually undertook in organizing the Associated Farmers as described hereafter were not unauthorized. The next step of the Association was the erection of two organiza- tions behind which it could operate to arouse favorable public opin- ion. At about the time Carriel arrived, the "Citizens' Association" was organized . The origin of this organization is clearly traceable to the Grower-Shipper Association . Brooks, the Grower-Shipper secretary , admitted that he was "in on the ground floor." He was a member of the pre-organization group, which met in the Grower- Shipper offices to consider the advisability of organizing . The pur- pose, according to Brooks , was "to have an organization that could act as - mouthpiece- for the sentiment of the town people," because "many outfits , were having labor trouble at that time:" As it turned out, the Citizens' Association was to act as mouthpiece .for the Grower-Shipper Association . The latter - was represented on the board of directors by Brooks and by Bruce Church , its presi- dent. The Grower-Shipper Association became a member of the Citizens' Association in its own name and took out memberships in 338 DECISIONS OF NATIONAL LABOR RELATIONS BOARD behalf of all its members. From the organization of the Citizens' Association in June up to the end of November 1936, the Grower- Shipper Association contributed $6,000 in assessments. It also made another contribution in the form of Cruse Carriel, who was released from his position as public-relations counsel within 2 weeks after he was hired, in order to become secretary of the Citizens' Associa- tion. Although only a short time before it had been thought neces- sary to have a special counsel to improve the Association's public relations, Carriel was not replaced. The reason is clear. Carriel in. his new position could be equally or even more effective. When the subsequent strike threatened and after it began, the two associations collaborated on an anti-strike publicity campaign. Meanwhile the farmers were not neglected. For some time there has been in existence in California a State-wide organization known as the Associated Farmers. An indication of the purposes of the Associated Farmers may be gathered from the remarks of its presi- dent, Colonel Walter E. Garrison, made at a. local organization meet- ing in Salinas toward the end of June 1936. He contended that the farmers must organize to protect . themselves against organization of the field workers. He also stated that the Associated Farmers were considering legislative plans to restrict the furnishing of relief to strikers. He asked that members send him pictures of labor leaders or "radicals" and said that he would "see they were handled," that the organization had a very effective system of under-cover men working in the Union, and that they had handled the suppression of a strike in Orange County." At about this time Brooks received a copy of .an elaborate report of the Associated Farmers dealing with a conference held by the State Federation of Labor in Stockton, California, on June 6 and 7. The conference was the cause of great anxiety on the part of many farmers, for its purpose was to commence the organization of all agricultural labor of the State, including field workers. As Brooks said on the stand, organization of the field workers "would make things that much tougher" for members of the Grower-Shipper Association. It should be noted that, under its charter from the American Federation of Labor, the Union was the only organization affiliated with the Federation which was authorized to organize the field workers. While its own bylaws excluded such workers, its juris- diction over them was recognized by the Federation, which always secured its approval before chartering Federal unions of field workers. The Union, therefore, appeared as the prospective antag- onist of such farmers as opposed organization of their employees. "This account of Garrison's remarks was not denied by Strobel , although he' had presided at the organization meeting and testified at the hearing, GROWER-SHIPPER VEGETABLE ASSOCIATION OF CENTRAL CALIF. 339 This fact facilitated cooperation between such farmers and the members.of the Grower-Shipper Association. An incident testified to by Strobel as having occurred during the Simmons-Ice-Kist strike indicates another plane upon which farmers and shippers might find a community of interest in opposition to the Union. According to Strobel, union members are supposed to have approached one Breschini, a grower of lettuce, and to have informed him that his lettuce was "hot" because he had been dealing with the Ice-Kist company, and that it could therefore not be harvested. An indigna- tion meeting of farmers and shippers following this event prepared the, way for the rejuvenation of the Associated Farmers' local branch, as described hereafter. Whether or not this event actually occurred, it is clear that the effect which a widespread strike of packing-shed workers would have on the possibility of sale of their crop by the farmers would tend to throw the latter .into the arms of the shippers in a struggle with the Union. Early in June Strobel was hired by the Grower-Shipper Associa- tion to promote better relations between the shippers and the farmers. It seems more than a coincidence that almost at once thereafter he became president of the Associated Farmers of Monterey County, a local organization which had been moribund for about 2 years but which, under his leadership, proceeded to revive. While, at the hear- ing, Strobel steadfastly denied receiving any instructions or sugges- tions from the Grower-Shipper Association to embark on this course, the inability of the usually precise Brooks to specify what Strobel was told to do, the fact that Strobel received no pay from the Associated Farmers but spent considerable time working for them while receiving his regular monthly salary from the Grower-Shipper organization, and the admittedly complete harmony between the objective of the two bodies belie his denials. Throughout the summer the local Associated Farmers conducted a membership drive and held numerous meetings. At one of the earliest of these, Abbott, sheriff of Monterey County, was the invited guest. Strobel, on behalf of the members, announced that, if they were needed, they were ready to act as deputies under the orders of the constituted authorities. They did not believe in vigilante methods, he said. Abbott expressed his pleasure at the offer. Later, as will be disclosed, this offer was to be accepted and acted upon. . V. THE UNFAIR LABOR PRACTICES A. The refusal to bargain collectively 1. The appropriate units The complaint, as amended, alleged that the shed workers em- ployed by each of the members of the Grower-Shipper Association 340, DECISIONS OF NATIONAL LABOR RELATIONS BOARD constitute a unit appropriate for collective bargaining. This allega- tion was not contested. . This class of workers is that which the Union admitted to membership and which it represented in bargain- ing with the employers and the Association both in 1935 and in 1936. The same considerations would appear to apply to employees of non- members of the Association engaged in packing lettuce in the district. At the hearing no distinction was sought to be drawn, and it was in fact stipulated that the Union represented a majority of the said workers of each. We therefore find that the shed workers employed in packing lettuce in the Salinas-Watsonville district by each of the respondent firms constitute a unit appropriate for the purposes of collective bargaining in respect to rates of pay; wages, hours of employment, and other conditions of employment, and that said unit insures to the employees of such respondents the full benefit of the right to self-organization and to collective bargaining and otherwise effectu- ates the policies of the Act. - 2. Representation by the Union of a majority in the appropriate units The complaint, as amended, alleged that the Union was, at all times relevant, the only designated collective bargaining representa- tive of an overwhelming majority of the shed workers employed by each of the members of the respondent Grower-Shipper Associa- tion in the Salinas-Watsonville district. This allegation was not contested. At the hearing it was stipulated that on September 4, 1936, the Union was the collective bargaining representative of a majority of the employees in each of the lettuce sheds in the Salinas-Watsonville district. Throughout the entire summer of 1936 up to September 2, the Grower-Shipper Association treated the Union, without question, as representative of all the shed workers of the district. There was no evidence of sudden increase in membership shortly prior to Septem- ber 4. We are, therefore, justified in inferring that the majority representation by the Union existed for some time prior to that date, at least as early, for example, as August 6, when negotiations began. On the basis of the stipulation, and on the basis of the testimony referred to, we find that on August 6, 1936, and at all times thereafter, the Union was the representative designated by a majority of the shed workers employed by each of the respondent firms in lettuce-packing sheds in the Salinas-Watsonville district for the purposes of collective bargaining in respect to rates of pay, wages, hours of employment, or other conditions of employment. GROWER-SHIPPER VEGETABLE ASSOCIATION OF CENTRAL CALIF. 341 3. The refusal to bargain On July 27, 1936, the Association wrote to the Union stating its. readiness to enter into negotiations for the conclusion of a new col- lective agreement to take the place of that expiring September 1. Committees to represent the Association and the Union were selected, and the first meeting was set for August 6. On August 5, apparently to safeguard against the possibility that the Association might not have authority from all its members, the Union wrote each member requesting that it enter into separate bargaining with the Union. At the conference the next day, however, it was agreed that each party would recognize the authority of the other, that of the Association to represent its members, that of the Union to represent all the shed workers in the industry. The author- ity of the Association was confirmed on August 11," when 72 firms, including some hon-members and all but 2 members of the Associa- tion, signed a power of attorney to the Association.12 Among these 72 firms were all the firms named as respondents in this case, except E. H. Spiegl. At the August.6 meeting, the Union Committee submitted a pro- posed contract which had been approved by the union members. The Association Committee wished to commence discussion on the basis of the existing agreement, but, on the insistence of the Union, its proposal was considered briefly,, paragraph by paragraph. For the purposes of this decision it is necessary to note only 2 of the 52 paragraphs of this elaborate agreement. Paragraph 7 provided for -recognition of the Union "as The agent of (sic) collective bargaining for workers employed in the fruit and vegetable industry . . . Paragraph 37 provided that "when obtainable all workers employed in and around packing sheds must be members in good standing of 12 The terms of the power of attorney were as follows : The undersigned do hereby authorize and appoint the Grower -Shipper Vegetable As- socia.tion of Central California to act as their exclusive agent in all dealings and negotiations with the Fruit & Vegetable Workers Union of California , No. 18211, affiliated with the American Federation of Labor , during negotiations for a labor contract to supersede the contract between the Association and the Labor Union expiring September 7 , 1936' The undersigned further agree : 1. That the Association shall have the power to enter into a labor agreement with .the Labor Union for the undersigned , and the undersigned shall be bound by the terms of said agreement. 2. That the agency relationship here existing shall be irrevocable until the first day of Sept. 1, (sic) 1937. .. The undersigned agree not to individually enter into any negotiations concerning labor problems either with the Labor Union above referred to, or with the crew, or any members thereof, of the undersigned during the term of this agency relationship. 4. The Association is authorized by this agreement to act for the undersigned in labor problems arising only in the counties of Monterey , Santa Cruz , and San Benito. 5. This agreement shall be effective when and if 85% of the shippers of vegetables in the counties above referred to shall have signed the same. 199540-39-vol. 15--23 342 DECIS IONS OF NATIONAL LABOR RELATIONS BOARD the Fruit and Vegetable Workers' Union, No. 18211, of California,. affiliated with the American Federation of Labor .. After reviewing the proposal and indicating acceptance of a num- ber of the provisions , including paragraph 7, the Association Com mittee stated that the controversial items, such as paragraph 37, would have to be taken tip with the general membership of the Association. The meeting accordingly adjourned to convene again on August 12, after it had been agreed , on the suggestion of the Union Committee , that reports to the press of the proceedings of the joint meetings be in writing and approved by both Committees. The meeting of the general membership of the Association to consider the union proposal was held on August 11. The Association Committee reported at the joint meeting the next day that the pro- posal had been . rejected "on account of it being too long," as the chairman, Bruce Church, testified . The Union Committee was asked to collaborate on the drafting of a new agreement, a revision of the existing contract , but it refused, disclaiming any authority to do so. It was agreed that the Association Committee should work out its own proposal and submit it at the next joint meeting on August 18. On August 18, accordingly , the Association Committee presented its proposal . The provisions were to a large extent those of the ex- isting contract. No increase in wages was provided for, and nothing like the recognition or preferential hiring clauses in the Union's proposal was included . The Union Committee stated that the pro- posal would have to be submitted to the Union's members, and the meeting adjourned to meet again on August 25. Despite the agreement reached at the first meeting that news of negotiations was to be confined to releases approved by both parties,. the Association representatives insisted , against the opposition of the Union Committee , on publishing the texts of the two proposed contracts . On August 19 the proposals were, accordingly, printed in local newspapers. At the meeting of August 25, the Union Committee reported that its membership had rejected the Association proposal and had di- rected it to negotiate only on the basis of the proposal it had sub- mitted on August 6. The joint news release covering this meeting contains the following : "The Union's representatives stated that their membership would demand a preferential employment clause which appears in their proposed agreement as paragraph No. 37, alsoi equal pay for men and women and that the former was not subject to bargaining or arbitration." Negotiations were resumed the next evening. Again most of the discussion centered around the demand for a preferential employ- ment clause. The Association Committee stated that it was not ac- ceptable to the Association 's membership , and the Union Committee GROWER-S1TIIIPER VEGETABLE ASSOCIATION OF CENTRAL CALIF. 343 insisted that it must be included. The meeting adjourned that night With no date fixed for further meetings. This was the first meeting to end in such a way, and it began to appear that no agreement would be reached by September 1. Representatives of the Associa- tion began to consider a stoppage as likely, although apparently the question had been brought up at the meeting as to what the Union proposed to do after September 1, and the Union Committee had stated that work would continue without a contract. On August 27 the general membership of the Association met to consider the situation. A Planning Committee was appointed to formulate plans and put them into operation in the event of difficul- ties between the packing-house labor and the shippers. The secre- tary was instructed to prepare a notice to be placed on the bulletin boards in the sheds of the various shippers, setting forth the wages and working conditions proposed in the agreement submitted by the Association bargaining committee on August 18, and stating that such wages and conditions were to be effective in September 1 until, further notice. On August 28 there appeared in the Salinas Index Journal, a local newspaper, a full-page advertisement over the name of the Associa- tion. It was headed: WORKERS : THINK! Read this Ad-Study the Agreement Did You Have a Chance to VOTE ON IT? The Association proposal of August 18 was set forth, and then the following statement made : ". . . representatives of the Union re- ported to our group that they would not even discuss our proposal. They ended negotiations, saying that full discussion of their own proposal would be futile, unless the Grower-Shippers first agreed to paragraph No. 37 .. . .". The .most significant section of the advertisement, however, read as follows : You who make up the sane, conservative, straight-thinking group, for your own sakes, do this: SET UP YOUR OWN LEADERSHIP AND COMMITTEES. DEMAND THAT YOUR ORGANIZATION FOLLOW THE DICTATES OF THE MAJORITY. RE- FUSE TO BE DOMINATED BY A RADICAL MINORITY, WHOSE "ORDERS" CERTAINLY DON'T COME FROM YOU. DEMAND THAT YOU BE GIVEN AN OPPORTUNITY TO CONSIDER ALL IMPORTANT PROBLEMS. AND MOST IMPORTANT, DEMAND THAT YOU BE GIVEN THE AMERICAN OPPOR- TUNITY OF THE SECRET BALLOT WHEN PASSING ON SUCH PROBLEMS. The advertisement ended : LET'S NOT ALLOW THESE SHEDS TO SHUT DOWN WITH CONSEQUENT UNEMPLOYMENT, BITTERNESS , AND INESTIMABLE FINANCIAL LOSS TO 344 DECISIONS OF NATIONAL LABOR RELATIONS BOARD WORKERS, EMPLOYERS, AND THE SALINAS-WATSONVILLE DISTRICT. Let's Let Well Enough Alone. On August 31, the Union telephoned the Association and arranged for another joint meeting of the. Committees, to be held on September 1. On the morning of September 1, the Association published in Salinas newspapers, a "Notice to Workers in The Lettuce Industry." This was a reproduction of a notice to be posted in the packing sheds and was apparently published pursuant to the resolution of the Association membership adopted at the meeting of August 27. The important paragraphs read as follows : Whereas the Fruit and Vegetable Workers Union, No. 18211, affiliated with the American Federation of Labor, has failed to negotiate or ratify an agreement for the ensuing year covering wage scale and working conditions : Beginning September 1st, 1936, the following wage scale and working conditions will prevail. Any work performed on Sep- tember 1st, 2nd, and 3rd, shall not obligate the worker to con- tinue to work under such wage scale and working conditions. HOWEVER, ANY WORK PERFORMED UNDER SAID WORKING CONDI- TIONS AND/OR WAGES ACCEPTED FOR WORK PERFORMED ON OR AFTER SEPTEMBER 4, 1936, SHALL BE CONSTRUED BY BOTH THE WORKER AND THE UNDERSIGNED AS THE ACCEPTANCE OF SAID WORKING CONDITIONS AND WAGE SCALE FOR THE PERIOD COMMENCING SEPTEMBER 4TH, 1936, AND ENDING AUGUST 31ST, 1937, AND SHALL BE BINDING ON THE SAID WORKER AND THE UNDERSIGNED FOR SAID PERIOD. Should the undersigned and the Fruit and Vegetable Workers' Union, Number 18211, enter into an agreement pertaining to the matters contained herein, this agreement shall thereafter. become ineffective. Following this there was set forth a schedule of wages and working conditions based upon the proposal submitted to the Union by the Association Committee on August 18. The notice was posted in many of the packing sheds the same day. The two Committees met again, by arrangement, in the evening of September 1, and a protracted discussion took place. The Union submitted a second draft of a proposed contract, which was, to a large extent, merely a rearrangement of its first proposal. The num- ber of items was cut from 52 to 36. The controversial paragraph 37 providing for preferential employment was moved up to paragraph 2, and paragraph 1 now provided for recognition. . This meeting lasted from 9 p. in. to 5 a. in. on September 2. Only the first two paragraphs Were considered and most of the time was -spent on paragraph 2. Toward morning it was agreed that both GROWER-SHIPPER VEGETABLE ASSOCIATION OF CENTRAL CALIF. 345 committees should submit to their general memberships a modified provision for preferential employment under which persons then employed should be exempted from its operation so long as they retained their jobs. The notice published and posted that day by the Association was also discussed and, according to a union witness, the Union Committee asked if in view of that notice the Association would be obliged to negotiate after September 4. Apparently Seifert, one of the Association Committee members, said not. But others of the Committee said that the Association would continue negotiations. The meeting broke up, with the understanding that discussion would be resumed on the evening of September 2. When the two Committees, accordingly, met that evening, the Association representatives reported that the general membership had that afternoon rejected the preferential clause with the proposed modification. The modification consequently was never submitted to the Union's members. The Association Committee submitted a sec- ond proposal, which was based upon the existing agreement with the addition of certain of the Union's demands. The recognition clause, however, restricted the position of the Union to representing its members only. No detailed discussion of the proposal occurred because it was only in preliminary form. The Association Commit- tee proposed that it be printed and distributed to the members of the Union. The Union Committee strenuously objected to this ar- rangement, but finally agreed to distribute copies to the union mem- bers at a meeting to be held September 3, if the Association agreed not to make a distribution or "ballyhoo" the agreement to the employees. There was further discussion of the September 1 notice, the Asso- ciation representatives explaining that its provisions would be super- seded by any agreement reached with the Union. Sbrana, president of the Association, stated, however, that the question of preferential employment was not one for negotiation, and the meeting ended without provision for resumption of discussions. Late in the afternoon of September 3, 2,500 printed copies of the Association's second proposal were tendered by messenger to Doss, the Union's financial secretary, at the union offices. The tender was rejected because, Doss claimed, the Association had broken its agree- ment not to distribute copies or "ballyhoo" the proposal to the shed workers. In the evening, meetings of the Salinas local and the Watsonville sublocal were held to consider the September 1 notice and the Asso- ciation's second proposal. The Association's proposal was rejected, chiefly on the ground that it failed to give recognition to the Union as representative of all the shed workers. The effect of the Septem- 0 346 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ber 1 notice, which the Union termed an "ultimatum," was debated. By overwhelming votes the members decided not to work beginning September 4 because of the provision that work would constitute the making of an individual contract. The Association was notified of the decision, and the next day the strike began. While the strike was in progress various efforts were made to reach an agreement between the Union and the Association. The first attempt was made on September it, when representatives of the Union, a representative of the American Federation of Labor, and certain members of the Association's negotiating committee, dis- cussed further the demand for preferential hiring. The Association representatives reiterated their previous statements that their mem- bership would never accede to this demand. They agreed, however, that they would consult the membership as to whether the As- sociation's proposal of September 2 was still open, if the Union would agree to submit that proposal again to its own members. There was testimony that as the meeting broke up Sbrana said: "All propositions are off with reference to collective bargaining." This statement appears, however, to have been made in the heat of temper and in the midst of "an uproar." The negotiations were reported to a union meeting on the evening of September 11, where it was voted not to abandon the demand for preferential hiring. When the result of this vote was reported to the secretary of the Association the next day, he wrote the Union Withdrawing the Association's proposal, but saying that "we wish to repeat our statements in former communications that we are still willing to negotiate on an agreement." Subsequent negotiations were carried on, however, through third parties. Of these the only negotiations which need be mentioned for the purposes of this case are those which were conducted between Vandeleur, secretary of the State Federation of Labor, and repre- sentatives of the Citizens' Association. At meetings shortly before October 21 these parties reached a tentative agreement which was to be submitted to the Grower-Shipper Association and the Union. Union meetings held on the 21st and 22nd considered the proposals but flatly rejected them when it was disclosed that one of the terms of the agreement would permit the employers to reject any applicant for reemployment without specifying any reason. Following this abortive attempt, the Union wrote the Grower-Shipper Association on October 26, submitting a brief outline of a proposed settlement of the strike. On October 27 the Association replied, in part, as follows : Recently a proposal of settlement was made to Mr. Vandeleur, secretary of the State Federation of Labor, and Walter G. Mathewson, Federal Conciliator : a proposition which was con- 4-;ROWER-SHIPPER VEGETABLE ASSOCIAT1O OF CI XTRAL CALIF. 347 sidered eminently fair by them but which we understand was not so considered by you. We have no further suggestions to make in the matter at this time. This appears to have been the last attempt to negotiate an agree- ment between the Union and the Association before the strike ended. On November 2 the Union voted to release its members and permit them to apply for reemployment . Since that time no agreement has ever been reached. The complaint, as amended , charges that three of the steps taken by the Association in the period leading up to the strike constituted unfair labor practices within the meaning of Section 8 (1) and (5) of the Act. These were the publication of the advertisement of August 28, the publication and posting of the notice of September 1, and the submission of the agreement on September 2, restricting union recognition. The advertisement of August 28 was the clearest kind of attempt to destroy the authority of the employees ' chosen representatives. It is hard to conceive of any step more likely to obstruct the process of collective bargaining than an effort , such as this, to get rid of the bargaining agents of the other party . Nothing could more clearly violate the fundamental right of employees to bargain through their ,own representatives free from coercion or interference by employers. The notice of September 1. was, on its face, more subtile. As stated above, it not only set forth the working conditions to be in force from September 1, but also sought to establish 1-year contracts with those who worked under the notice from September 4 on. While, of course, an employer is as much justified as an employee in demanding the security afforded by a contract of employment, the exercise of such right must not be made for the purpose of interfering with the rights guaranteed to employees under Section 7 of the Act. The attempt to bind the employees by individual contracts in this case ,toes not appear so much an attempt to obtain security as an attempt either to provoke a strike or to impair the prestige and bargaining position of the Union. There was, in fact, no need for the Association or its members to obtain contracts. The Union Committee had assured the Asso- ,ciation's representatives that work would continue after September I even if no agreement had been reached. As a matter of fact, it was so continued up to the morning of the 4th. Curiously enough the Association members did not apparently contemplate the con- tractual arrangement when on August 27 they authorized the posting of notices setting forth working conditions in the absence of a col- lective agreement. At that time this plan had not been thought 348 DECISIONS OF NATIONAL LABOR RELATIONS BOARD necessary. Both these facts indicate that another motive for the attempt to secure individual. contracts must be sought. As the substantive terms of the notice had already been rejected by the Union, the Association could easily anticipate that the attempt to secure contracts along such lines would be at least equally objec- tionable. In addition to the objections which the Union had to these terms, the conclusion of individual contracts would naturally weaken the position of the Union in any further bargaining for a collective agreement, since the Association would already have the security afforded by existing agreements.13 The Association could therefore reasonably anticipate that the notice would either provoke a retali- atory strike or make the Union "lose face" with its members. We must assume that the Association did anticipate these effects and intended them. We find that by publishing the advertisement of August 28 and by publishing and posting the notices of September 1, the respond- ent Grower-Shipper Association, and all other respondents, except Western Growers Protective Association, H. P. Garin Company, and E. H. Spiegl, interfered with, restrained, and coerced the employees of members of the Association and of those firms which the Associ- ation was authorized to represent, in the exercise of the rights guaranteed in Section 7 of the Act. Whether the advertisement of August 28 and the notice of Sep- tember 1 also constituted refusals to bargain within the meaning of the Act we do not find it necessary to decide. The language of the Association's proposal of September 2, restricting recognition of the Union as representing its members only, constituted a clear refusal so to bargain. An employer cannot fulfill his obligation to a labor organization which is the exclusive representative of his employees by offering to bargain with it for its members only 1.4 We accord- ingly find that, on September 2, 1936, the respondents, except West- ern Growers Protective Association, H. P. Garin Company, and E. H. Spiegl, refused to bargain collectively with the Union. By so doing they also interfered with, restrained, and coerced the employees of members of the Association and of those firms which the Associ- ation was authorized to represent, in the exercise of the rights guaranteed in Section 7 of the Act. The events subsequent to September 4, however, do not disclose a refusal to bargain on the part of the respondents, even if they were covered by the complaint. 1s Cf. Matter of Arcade-Sunshine Company, Inc. and Laundry Workers Cleaners & Dyers Union, 12 N. L. R. B. 259. 14 National Labor Relations Board V. Giles-Coleman Lumber Company, 96 F. (2d) 197 (C. C. A. 9th, 1938). GROWER-SHIPPER VEGETABLE ASSOCIATION OF CENTRAL CALIF. 349 The strike, commencing September 4, was caused by the publishing and posting of the notice of September 1 and by the attempt to re- strict recognition of the Union to its membership only. B. Alleged interference, restraint, and coercion doming the strike On September 4 the strike commenced, as stated above, and all sheds in the Salinas-Watsonville district were closed down. No at- tempt was made to operate them for over 10 days. About September 5 or 6, law-enforcement officers met with representatives of the Asso- ciation to determine a future course of action. Griffin, the chief of police of Salinas, advised that a stockade be built around the packing sheds before any attempt was made to reopen them. In view of the fact that three law-enforcement agencies would be involved in any attempt to resume operations, namely, the city police, the sheriff's deputies, and the State Highway Patrol, he also advised that a coordinator of these agencies be appointed. L stockade around the sheds located in Salinas on Front Street at the foot of Gabilan Street was completed about September 14, and plans were made to commence operations with strikebreakers the following day. In the meantime, on September 13, there had ar- rived in town, apparently at the invitation of the attorney for the Citizens' Association, one Colonel Henry Sanborn. Colonel Sanborn, an officer in the Reserve Corps, is the publisher of The American Citizen of San Francisco, a paper devoted to combating "radical" and "subversive" influences. Under the assumed name of Winter, the Colonel operated as the coordinator suggested by Griffin. The Colonel's first advice was to display no force in resuming operations until the strikers commenced violence. Consequently on the 15th, when the first lettuce trucks were driven in from the fields to the shed enclosure, they were not accompanied by guards. The police, however, awaited their arrival at the enclosure entrance. A crowd also had gathered there. Rocks were thrown at one or two of the trucks, which, however, finally got through the crowd into the sheds. The chief of police warned the crowd to disperse, and then, after waiting about 10 minutes, ordered a gas attack. Ten officers, of whom 4 carried riot gas guns and the others grenades, pro- ceeded to "clean up" the crowd. The attack lasted from 30 minutes to an hour. The subsequent caravans of trucks were convoyed in. The State Highway Patrol guarded them at least as far, as the city limits, and from the limits either the Patrol or some other law-enforcement agency guarded them into the sheds. Nevertheless rock throwing continued, and on the following day a more serious clash between police and strikers took place. 350 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Early in the morning of the 16th, groups of persons appeared on Gabilan Street heading for the enclosure. At the time of the occur- rence to be described, one witness estimated that they numbered about. 50 individuals in the blocks close to the enclosure. No trucks had yet appeared, and there was no violence or offer of violence by the crowd. The police were on hand near the entrance, and with them a motion picture camera crew and their apparatus, evidently waiting for some action shots. Without any warning to the crowd, when its nearest members were still about 75 feet away, the officers suddenly opened fire with their gas riot guns. The gas drove the crowd back in the direction of Main Street. Somewhat later in the morning a convoy of trucks, driving in from the north of town, instead of following the usual truck route, drove down Main Street to Gabilan Street. At this corner, which is the center of the town, the convoy had to stop for a traffic light. A. large crowd, many of whom had been driven in this direction by the gassing at the lower end of Gabilan Street, had already gathered around. When the convoy stopped, some of the bystanders ran out, cut the ropes holding the field crates on the trucks, and pulled two or three dozen off. The trucks got away, leaving large piles of lettuce and crates in the street. This seems to have been the signal for the commencement of another series of gas attacks. All along Gabilan Street from the enclosures to the corner of Main Street, a distance of about 5 blocks, gas bombing went on, particularly as convoys came through. Groups of as few as two or three were attacked, with no apparent justifica- tion. At one time people were pursued into a block off Gabilan Street from both ends, and there subjected to gas bombing from two directions. This block contained the Labor Temple, headquar- ters of the Central Labor Union. When the crowd retired into the building, bombs were thrown inside. The gassing continued into the early afternoon and was resumed later. An active and presumably enthusiastic participant in these occurrences was George F. ("Jimmie") Cake, Pacific Coast repre- sentative of Federal Laboratories, Inc., supplier of most of the gas equipment. Cake had foresightedly secured a deputy's badge and proceeded to "consume" some of the goods which he had sold to the city and county. The impression of these events obtained from the record is one of inexcusable police brutality, in many instances bordering upon sadism. After the 16th, however, there do not appear to have been any further mass actions by the police. The strikers withdrew their pickets from the sheds and attempted to demonstrate around the GROWER-SHIPPER VEGETABLE ASSOCIATION OF CENTRAL CALIF. 351 fields where lettuce was being cut. Apparently the sheriff's deputies and the highway patrol succeeded in keeping such pickets far enough away from the field workers to prevent their having any effect. The activities of the police in town in the meanwhile do not inspire one with a sense of respect. Innumerable false arrests were made, many without a shadow of evidence.- Large numbers of per- sons were kept in jail for 4 or 5 days without having any charges brought against them. All of these matters were brought out at the hearing pursuant to detailed allegations of the complaint charging a concerted plan be- tween the respondents, the Associated Farmers, the Citizens' Asso- ciation, city, county and State law-enforcement officers, and others to interfere with, restrain, and coerce the shed workers in the exer- cise of their rights under the Act. In order, however, to determine whether the complaint in this respect is supported by the proof, it is necessary to consider to what extent the respondents are respon- sible for the activities of the law-enforcement agencies. This is a question on which inevitably the evidence must be of a circumstantial nature. Nevertheless, having considered all the evidence and the inferences which may properly be drawn therefrom, we do not find, on the basis of the record, that responsibility should be attached to the Association or firms named as respondents in this case. We have noted that Sanborn appeared at the bidding of the attorney for the Citizens' Association. But the testimony shows only that Sanborn acted in an advisory capacity, handed out press releases, and addressed a posse on its powers under the law. It fails to indi- cate that he received any remuneration from the respondents, and indeed shows that he was paid by the sheriff. It is true that Strobel, an employee of the Association and president of the Associated Farmers, was extremely active in recruiting depu- ties for the sheriff among the farmers of the county. This in itself, however, is not an action which can be considered a violation of the Act. It is true also that on September 16, he appeared at the head of a group of deputies in the midst of the crate wreckage at Main and Gabilan Streets, after the trucks had departed, and tried to push some bystanders around. But he was sent there by the sheriff, and we do not consider that whatever violence he may have indulged in there can be attributed to the respondents. It is also true that during the strike the Association hired approxi- mately 150 guards from a Los Angeles detective agency. Most of these were stationed outside of town, however, at the field crew camps and ranches. Some of the guards were stationed in the shed enclosure, where they were apparently under police direction. And despite explicit testimony of the secretary of the Association to the 352 DECISIONS OF NATIONAL LABOR RELATIONS BOARD contrary, it is clear from an examination of the Association's records that a large number of guards supplied by the same agency for whose services the agency billed the police department were paid for by the Association, and there is no evidence that it was ever reimbursed for such payments. But, even if the respondents were to be held responsible for the activities of these guards, the record fails to disclose their participation in any of the violence. In fact, in several of the incidents, the participants are specifically identified as regular or special members of the police force. It is true, too, that the Association appears to have supplied a great many free meals both. to the police on duty at the sheds and to the various officers who appeared from time to time on the sixth floor of the Hotel Jeffery, strike headquarters of the law-enforcement agencies. The police at the sheds also received their lodging there without payment of rent. But none of these facts is sufficient to fasten on the respondents responsibility for the methods used by the police in preserving law and order. The gas equipment and other munitions used were, according to the record, ordered and paid for by the city and county, and not by any of the respondents. C. The Tracy-Waldron boycott Tracy-Waldron Fruit Company, a local packer not a member of the Grower-Shipper Association, was one of the firms which on August 11,1936 . , signed the power of attorney to the Association, authorizing it, irrevocably for a year, to represent the signers in negotiating an agreement with the Union. On September 11, 1936, the company wrote the Association purporting to revoke the "authority delegated to you to negotiate new labor agreement for us . . " By this time, although actual packing by the Association did not commence until September 15, most of its necessary arrangements for securing supplies presumably had been made. In any event, on September 12, the Association wrote to various ice, box, and paper manufacturers and dealers informing them of the revocation of the agency by the Tracy-Waldron Company. The letter continued : Although the delegation of agency by Mr. Tracy was irrev- ocable, we advise you to do as you see fit in the matter. We hope, however, that we shall continue to have your loyalty during the present labor crises. Upon revocation, Tracy, representing the Tracy-Waldron Fruit Company, entered into an agreement with the Union along the lines of the contract which it had sought to obtain with the Association, providing among other things, for union preference in employment. He had 230 acres of lettuce, ready for cutting and packing. He tried, GROWER-SHIPPER VEGETABLE ASSOCIATION OF CENTRAL CALIF. 353 therefore, to secure the ice, paper, and box shook necessary for packing. Ice was ordered from the Salinas Valley Ice Company (a recipient of the Association's letter), with whom Tracy had dealt. for 12 years. The ice company obviously had ice on hand, since none of the Association members were packing and the Association had not yet started. A few days later it furnished ice to the Association. Nevertheless the reply to Tracy,was that "they couldn't furnish . . . any ice during the strike conditions." Tracy tried to buy ice from other ice companies within 100 to 200 miles of Salinas, but they replied they had no ice to sell. The Salinas Valley Wax Paper Company (another recipient of the Association's letter) replied that it could not sell him any paper, because. it was all sold to the Asso- ciation, but he did manage to secure paper from another source. Shook also might possibly have been secured, but as, without ice, packing was impossible, it was not actually ordered. Just at this time Tracy was notified that the bond which he had. put up with the Southern Pacific Railroad Company, required to guarantee payment of freight charges on perishable shipments iri the absence of pre-payment of such charges, had been canceled by the railroad. This cancelation was apparently due to the withdrawal of the signers of the bond, Bruce Church and Vincent Arence, both belonging to firms which were members of the Association. The result was that the abortive attempt to pack collapsed. Tracy told the Union he could not go on. And surrendering to the situa- tion, he wrote the Association on September 14 canceling the revoca- tion of authority and -agreeing to be bound by the authorization of August 11. The suppliers' boycott of Tracy, which, it is clear, had been induced by the Association, was designed to punish him for con- ceding to the Union the contractual provisions which the Association had decided to refuse. It was calculated to strike at the Union indirectly by preventing its enjoyment of the fruits of collective bargaining with the employer of some of its members. It was also designed to prevent further defections from the ranks, which might have resulted in the conclusion of similar agreements between em- ployers and the Union. We find that by such boycott the Association and its members who were named as respondents herein (except H. P. Garin Company') 15 interfered with, restrained, and coerced the employees, not only of Tracy-Waldron Fruit Company, but also of-all the members of the 11 We except H; P. Garin Company from this finding since we aie granting the motion of H. P. Garin , Receiver, to dismiss the complaint as against it. 354 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Association and of all other employers who had authorized the Association to represent them, in the exercise of the rights guaran- teed by Section 7 of the Act. D. Espionage Intermittently for more than a year prior to the strike the Associa- tion employed the 'services of the Charles N. Watkins Detective Agency, "to find out what they could" about the Union's programs, policies, and activities. The agency was rehired during the Sim- mons-Ice-Kist episode and employed thereafter through the summer of 1936 and the strike of the fall. It was reemployed at the time of the hearing before the Trial Examiner of the Board, until this fact was disclosed in the proceedings. Its services were then terminated. During the period in which it was retained, the agency supplied one or two agents, who rendered written reports to the Association almost daily. The reports covered only "labor and labor trouble." The exact contents of the reports cannot be determined since they were destroyed immediately or within a short time after their receipt. Brooks testified that they were useless, containing merely a repetition of street-corner gossip; nevertheless the Association continued to employ the agency, paying monthly bills that ranged, in the period before the strike, between $540 to $665. Brooks testified that lie was sure that the Watkins agents did not join the Union, but he admitted that he had no direct knowledge to that effect and that no limitations were placed upon their methods. Some indication of the agency's methods appears in items of expenses detailed in the bills rendered by it to the Association. On a bill "for special services acid expenses as ordered and authorized ., . ." for the month of September there appears the item, "cultivating expense with parties known to client." On a similar bill for October the following item occurs : "Dues and assessments, local trans- portation points in County and expense with subjects." The item, "Expense with subjects" occurs again on the bill for November. In addition to employing the Watkins operatives, the Association, for a few weeks during the strike, purchased information on union matters from one Major Hagen, who was in Salinas for the time being as an "observer" for the Spreckels Sugar. Company. Besides the facts which we have recited concerning the employment of these operatives, the record also contains evidence of "another kind indicating espionage by the Association. This evidence is in the form of cards, originally kept in the files of the Association, which were used, as described in more detail below, in passing on appli- 'GROWER-SEll'PER VEGETABLE. ASSOCIATION OF CENTRAL CALIF. 355 cations for employment both during and after the strike. A separate card was made out for each person who had been employed by an Association member at the time the strike began. The cards of some individuals indicate to what length the Association and its agents went in keeping track of the Union and other activities of its employees. Reports of union instructions given to members, of intimate details of intra-union politics, and of apparently incriminat- ing remarks attributed to active union members, all indicate that the Association was securing information by a system of spies planted in the union ranks. One of the features of some of the cards is refer- ence to "#11" and "#12," as having obtained the information set forth, apparently designations for Watkins operatives.16 The nota- tions on some of the cards are reproduced in part in the footnote."' '6 A Watkins bill to the Association ifor Septmuber "for special services and expenses as ordered and authorized . . ." carries this item : "Chief. #11-Sept. 8th-3019h, 23 days a $10.00 ----------------- $230.00" A similar bill for October : $248.00" "#12: October 1st to 31st inclusive-31 days n $8.00 ---------- An entry like the latter. referring to "#12," also appears on a bill for November. 17 The card of G. Harris bears this notation : "9/17/36-With G. Roe-instructed to fay off Salinas Sts., but to learn all lie could of activities of vigilantes and plans; orders issued at Poodle Dog Hall I Union strike headquarters] at 7: 00 A. M. . . . 11/6/36- #12-Released by Police Dept. Is confirmed thief. Was the one who stole the clothing out of the automobile at the Poodle Dog and has been responsible for knocking over non- union strike breakers and removing pay." G. Roe's card carries practically the same notation. H. F. Day : "12/31/30-Was in meeting in El Centro Hotel with Dick Caldwell, Geo. Cramer, Mickey Shevlin, Frenchy Hart. Joe Powell, Wing Ding Red Railey, Millie Railey and Harry Kilgore. It was agreed by this group that nothing could be done about a strike until the non-union men were brought into line. Frenchy Hart suggested that an open mass meeting be held with everyone invited. Speakers from San Francisco and an Pedro will be sent a special invitation in an effort to convert non-union men. Caldwell will make this motion at the next Union meeting. A special assessment will be levied on each member to defray expenses of the mass meeting. Shevlin stated that 12 new .applications had been filed and he was expecting more before the next meeting night. 1/15/37-Reported to be the next Pres. of F V W U #18211." Roy. Alcorn: "11/1/36-CP [Communist Party] member and works rather close to Kircher. Working hard to have Doss [Union financial secretary] put out of office." "Bud" Montgomery, a member of the Union negotiating committee: "9/25/36-#11- Connected in the Communistic communication that was in the personal effects of Kircher has left the city of Salinas. Montgomery resided at the Salinas Hotel. On the day that the Communistic literature was discovered, Montgomery went to hotel and was in a terrible state of hysteria ; it was stated that he had the jitters and was in fear of his life. Local Union officials have been trying to locate him in and about Salinas. This may be one reason why Aram and local labor leaders have made a search of the morgue of the County Coroner's office for some of their men who have disappeared. Montgomery had left most of his clothes in his room and not one person has any idea where he can be located ; he has sonic relatives in Stockton and is reported to have a daughter in Santa Cruz." F. Abbott and Sun: "11/3/36-#12-Members of `beef squad'-plan on leaving for San Francisco." L. Farris: "10/11/36-works on Filipino situation. He works with them on problems. Program is not yet exposed." L. D. Kirby : "1/27/36-(# 12)-Cbmmmnist." J. Harwood : `Very radical in his talk, and active with the radical group in the Union. "12/10/36-Has made several attempts to get non-union men interested in joining the union; claims that if they are not members that there will be no chance for them to 356 DECISIONS OF NATIONAL LABOR RELATIONS BOARD We, therefore, find that by espionage upon the union activities of the shed workers employed by the Association's members, the As- sociation and its members named as respondents interfered with, re- strained, and coerced such employees in the exercise of the rights guaranteed by Section 7 of the Act. E. Discrimination in reinstatement and employment after the strike During the strike the Association took upon itself the function; of packing for its members. On September 12 it instituted a central hiring system. Under this system, every. appl icant for a job in any of the sheds was supposed first to apply at a central office or hiring hall, which was in charge of an Association employee. His appli- cation was taken down on a card, which he was required to sign. Of the three forms of application cards used at various times two had lines to be filled in after the heading: "Uni6n affiliations." If there were jobs available and if the decision of the employee in. charge was favorable, the applicant was given a pass into the enclosure. This same system of hiring was continued through the rest of the season, after the strike had ended and after the individual packers had resumed operations for themselves. The Association's hiring hall acted in general as a sort of employment office for the members of the Association. If, as sometimes happened, applicants managed to obtain employment directly from a packer or foreman without going through the hiring hall, the packer was nevertheless supposed to report the employee's name to the hall and to file with the hall an application card made out by the employee. The hall undertook to pass upon the qualifications of employees thus directly hired as well as upon those who applied to it. It thus controlled the employ- ment of workers in the sheds of all the Association members.1° work in Salinas this spring and that the Growers Shippers are going to sign up for 100% Union Shop rather than have another strike." J. B. McFadden : "C. P. Party but innocent ; trusted by rank and file ; honest ; this notation filed In the effects of Frank Stern as of 10/3/36. Salinas Communist. (C-1) ... "10/20/36-Reported McFadden will engineer gorilla [sic ] welfare tonight." M. (Marlie ) McFadden : "10/11/36-Insisting that members get rough and defy Picket Ordinance." B. Shell: "9/25/36-Responsible for solicitation and aid of Filipino Laborers, who are calling mass meeting to vote on strike." A. Van Noy : "10/27/36-On switch board , Miller Hall , 2 weeks . Refused to go P.D. not In good standing for that reason ; strong Union , but not Radical." . "The record does not indicate whether any of the non -member respondents took part in this hiring-hall system. The letters of the secretary of the Association dated October 28 and 30, 1936 , explaining some of its features and asking cooperation are addressed to "Members of the Association ." We therefore find,,for the purposes of this proceeding. that the non-member respondents ( Western Growers Protective Association . S. A. Gerrard Company, Salinas Valley Vegetable Exchange , E. H. Spiegl, Peter A. Stolich, Inc., and Watsonville Exchange, Inc.) did not participate. GROWER-SHIPPER. VEGETABLE ASSOCIATION OF CENTRAL CALIF. 357 The employees were also furnished with so-called "recommenda- tion cards," which could be filled out by an employer and supplied to any of those of his employees whom he wished to recommend toy other employers. Duplicates of any cards so filled out were to be. filed by the employer with the Association. Association witnesses testified that the purpose of the hiring halt' after the end of the strike as, in part, to weed out those applicants= whose activities in the strike indicated that they might "cause troy-- ble." Thus, it was stated, there was an attempt to keep out men who, had been jailed during the strike. In a letter to the members of the Association, explaining the system, the secretary wrote that with, it they would be able to maintain "a desirable personnel to the end- that the unpleasant and expensive experience of the past 2 months- shall not be. repeated at any sooner date than we can avoid." It was. insisted at the hearing, however, that union activity, as such; was= not a ground for rejecting an application. S. H. (Pete) Taylor,, who was in charge of the hiring hall immediately after the termina- tion of the strike, and therefore presumably best acquainted with its purposes, had disappeared on November 20, 1936, 1 day after the institution of proceedings in the Federal courts against him and the- Association-charging violation of certain Federal laws, and he was- unavailable at the time of the hearing. In passing upon applications for employment a file of cards was. consulted by those in charge of the hiring hall. This file, which. is an exhibit in evidence, contains, with insignificant exceptions, a card for every worker who was employed before and during the- strike. The card indicates whether the employee was, a striker or- whether lie worked as a strikebreaker. Many of them carry addi-- tional comments, which are illuminating in determining the actual purpose of the central hiring system. The nature of the entries on. certain of the cards is convincing evidence, not only of espionage,. but also of the purpose of the Association to blacklist the more active union members. We 'have already quoted some of these in discussing- above the charge of espionage.'A In addition, there are large num- bers of cards bearing such comments as "active striker," "picket. duty," "strong union man," and "shed steward." Use of the recommendation cards, which, under the circumstances,, would go only to employees who had already been approved by the. hiring hall, naturally would enable the exclusion by the hiring hall of an applicant from employment to be perpetuated even after the abandonment of the hiring-hall system in December 1936, as well. as, to be spread to any other areas, such as southern California or Ari- See footnote 17, supra. 199549-39-vol. 15--24 :358 DECISIONS OF NATIONAL LABOR RELATIONS BOARD zona, where employers might decide to require applicants to have such cards. Direct evidence of the operation of this system was given by Otto Ables, who was employed as shed foreman by E. J. Russell Co., one ,of the Association members, both before and after the strike. After ,the, strike E. J. Russell Co. used the shed of the respondent W. R. Van Noy, Inc., for packing carrots. About 8 or 10 clays after Ables resumed work for E. J. Russell Co. following the strike, Van Noy, of the other firm, asked him to hire a night crew for carrot packing. Ables went to the Labor Temple and picked up a crew of 21 union men. Their work lasted about a week. Shortly before the end of the week S. H. (Pete) Taylor was seen in the shed looking over this crew. After his departure 'Van Noy asked Ables the identity of five or six members of the crew who, it appears, were working under assumed names. These included John B. Alberty, Forrest Heard, and "Bud" Montgomery. On learning their true names, Van Noy insisted that they get clearance from the hiring hull, and asserted that they were troublemakers, members of the so-called "beef gang," and that lie did not want to work them. Ables remousa-aCea °saying that their work was satisfactory, but Van Nov replied that lie had to work some- non-union men, that the Association was putting pres- sure on him. Examination of the cards kept by the. Association on the employees mentioned above gives it clue as to the reason why they were apparently on the blacklist.20 As a result, Ables took a list of the crew to the hiring hall in an .attempt to have them cleared. Eventually the matter was settled by an arrangement permitting Van Noy to retain the crew to finish up• the night carrot-packing work, which lasted only a night or two more. During this same period, while Ables was working as foreman in the E. J. Russell Co. lettuce shed, Corley, Taylor's assistant, gave him a list of 11 persons who, Corley said, could not be employed by Russell. The list included Mr. and Mrs. William Wooten, Mrs. Marvel Alberty, Lawrence Hagelund, Forrest Heard, Mr. and Mrs. Glenn Skaggs, Dolly Garrett, Hazel Smart, one Rhyne, and James Daniels. - The comments appearing on the cards of these employees in the Association files are reproduced in the footnote.21 2oFor Alberty's card see footnote 22, infra . For heard' s card see footnote 21, infra. For Montgomery's card see footnote 17, supra. .21 Wooten , William . M.: "9/4/30-FVWU out on strike . W. B. Grainger Packing Co. Wife : Katherine , owns property in Hebbron District with value of $800-balance of '$350-due Robert Kay-payments as agreed to date 1/10/36. "10/27/36-Agitator . Red. No good . Talks too much-. Was cause of prestrike unrest on .shed. - ,,10/22/36-In on dirty work, they brag . Supposed to have led quite a few of the young teamsters-new members mostly kids." Mrs. Marvel Alberty: "E. J. Russell Pkg. Co. 9/4/36.-FVWU out on strike. Wife of John Alberty. Extremely active in strike . Prestrike, agitator. Five feet six inches- i.;R.OwVhR-S.HIPPElt VEGETABLE ASSOCIATION OF CENTRAL CALIF. 359 The experience of several shed workers in attempting to secure employment after the strike also illustrates the operation of the Association's card system. John B. A1bei°tty was employed as a box maker by the General Box Corporation in Salinas before the strike. He was a member of the Boxmakers Union, which struck in sympathy with the Fruit and Vegetable Workers Union. Though not a member of the latter union, any discrimination against him because of his participation in the strike would be within the scope of the complaint, not only because. such discrimination would tend to discourage membership and ac- tivity in the Fruit and Vegetable Workers' Union, but also because the complaint charged that by. discrimination the respondents dis- couraged membership both in that and other labor organizations. On October 15 Alberty was arrested in connection with the dyna- miting of the General Box Corporation's shed. Though held in jail for 4 days, he was finally charged only with vagrancy and disturbing the peace. Later he was released without trial on' these charges. On the day after the strike was called off, Alberty went to work, under an assumed name, for W. R. Van Noy, Inc., packing broccoli at-.first, and then carrots. A few days later, on November 8 or 9, his foreman, Bashin, told hint, when lie returned from lunch, that he could not be used any more. Bashin admitted to him that his work was satisfactory a nd that lie was washing enough carrots, but said. "The' orders cone from higher lip." When he called for his check the next day, Basliili asked him if his name was Alberty. Albert.y admitted it was, but Bashin refused to explain why he had asked. On the following Sunday Alberty talked to Van Noy about one Otis Barger who had also been laid off. Van Noy told him that 135 pounds-29 years-full face-rather chunky-has seven-year-old son by first husband. Asa rule she works on smaller jobs. Very strong in her union work . Agitator ; believes in strong-arm methods." Ilurd. Forest: ••!,/4/3(;-FV\V'U out on strike. The Merrill Packing Company. 10/2T/36-In jail during strike . Reported trouble maker." Skaggs. G.: • 9/4/ ;(;-l'ViiVV- it on strike. Tho Merrill lacking Company. 10/27/:t6- Picket Duty ; strike <4itator.' 10/15/'i6-SPD-Sec. 409 P. C. For description see 111 ug ^ 9S6." Skaggs. i,. (\I(s.j : ' 9/4/36-FVWU out on strike. Salinas Packing Company. 10/27/36-Picket duty : strike agitator." Hagelmid , Lawrence "9/4/36-FV WIJ out on strike . The Merrill Packing Company. 8135 C. B. claim for collection cancelled as uncollectible. 10/27/36-on picket duty. In Jail during stoke. Rm. 22 Plaza Hotel, Salinas , California . 10/16/36-SPD." (;arrett, I).: "9/4/:36-FVWU out on strike . E. J. Russell Pkg . Co. CB; File on M. C. (Jack) Garrett ; Wife, Dolly ; no dependents ; rents hone ; 2/20/35 .•' Card of Jack Gar- rett thus refern d to : "9/4/36-FVWU out on strike. Ice-Kist Packing Co., Salinas. 10/27/3 6. Trouble-maker . Hot. Agitator. Should be checked further." Smart. i-Iazcl: Card missing.: There are cards for four Rhynes in the Association files. The comments on them are o f no particular significance. Daniel,, . ,i.: 9,/4/36-FVWU out on strike. ' K. R. Nutting Co. C. B.. ' Claim for, col- lection canceled as uncollectible 11/21/ 33. Salinas 10/5/36-SPD-Ord . 20. 11/5/36 Working." 360 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Barger had been on the blacklist but that "that has been straightened up liow." Alberty asked what he had to do "to get off the black- list." Van Noy told him to see Ryan of the General Box Corpora- tion and Taylor at the hiring hall before he could work in Salinas, Imperial Valley or Arizona. ' In a later conversation Van Noy admitted that he had learned Alberty's identity from the General. Box Corporation and Taylor. The foregoing findings are based upon testimony of Alberty which was uncontradicted by Van Noy or Ables, although W. R. Van Noy, Inc., is one of the respondents. About November 15, Alberty met Taylor on the street and asked why Taylor had him on the blacklist. Taylor replied, "I haven't got you on the blacklist. That comes from the higher ups and there is nothing I can do about it." In January Alberty made his next attempt to secure work, at the Imperial' Box Corporation, in El Centro, California. He also tried at the Martin C. Wall Packing Company, in El Centro, and later at his former. place of employment, the General Box Corporation, in Salinas. He was successful in none of these attempts. At the time of the hearing he was working for Gillinsky Packing Company, a firm which was neither a member of the Grower-Shipper Association nor a respondent in this proceeding.. The notations on his card are reproduced below.22 For'°est Heard was employed by Merrill Packing Company,. Inc., Ltd., before the strike. He was a member of the Union and during the strike took part in the picketing. Toward the end of the strike Heard was at a drinking party in the Plaza Hotel which was raided by the police. The police were looking for gas bombs and dynamite but found none. Nevertheless the members of the party were taken into custody. Heard was kept in jail for 41/2 days and then released without trial. After the strike he sought employment unsuccessfully at several sheds. About a week later he was hired by Ables to work for ' Van Noy. He worked under an assumed name. for 3 nights packing carrots. Then Ables told him he would have to be cleared through the hiring hall. He and Ables went to see Taylor. Taylor told him to continue work that night, but asked for a list of Van Noy's night crew. A day or so later, Corley, Taylor's assistant, brought Van Noy the list of 11 names referred to in Ables' testimony, saying that those listed could not be employed. The list included Heard, under his real name. Van Noy knew Heard's real name, and he was therefore told 22 Alberty, John B . (Alias below) : "9/4/36 FVWU out on strike. General Box Dis- tributors. 10/27/36. Went out on strike and still out. Jailed Ord. 231 N. C. S. SPD. See Mug #1046 . Alias-John Colburn and Jobn Corbin." GROWER-SHIPPER VEGETABLE ASSOCIATION Or CENTRAL CALIF. 361 he could not work there any longer. The comments appearing on his card in the Association files have already been set forth above.2" Two months later he, secured- work with Gillinsky Packing Com- pany, for which he worked up to the time of the hearing. Mrs. Marvel Alberty was working for E. J, Russell Packing Co. at the time of the strike. Apparently without going to the hiring hall she obtained employment at the shed of Gco. J. Gillingham Co., an Association member, the day after the strike ended. About 2 weeks later her foreman told her he could not use her any more. When she asked why she was being discharged, he replied that he did not have to tell her. On November 20 she secured work with her former employer, E. J. Russell Co., another Association member. But after 2 days' work there, Ables, the foreman, told her that he had orders to discharge her, although her work was satisfactory and he did not want to do so. He said, however, that Corley, Taylor's assistant, had pointed her out for discharge, and had stated that an- other was to be substituted for her. Russell also told her that he would have to discharge her, but he said that he would try to get her name off the Association's "black list." He told her to return on Monday. On Monday he reported that he had talked to Taylor and gotten her off the "black list," but the shed shut down that day, having run out of work. The comments on the card for Mrs. Alberty in the Association's files, which have already been set forth above,24 provide a clue to the motive of the hiring hall in attempting to have her discharged. Shortly before she testified at the hearing on May 4, 1937, Mrs. Alberty applied at Salinas Packing Co. (an Association member) for work. She was asked whether she had been in any trouble during the strike or if she "had anything against her." When she replied that she was "on the black list," she was told that she could not be used, that no one was wanted "that would cause trouble in any wity." She also applied to The Lester Stirling Com- pany and Merrill Packing Company shortly before May 4, 1937, without success. She was not working at the time of the hearing. George Foote was a member of the union strategy committee dur- ing the strike. On November 9, after it ended, the Geo. J. Gilling- ham Co. offered him a job, but withdrew the offer on the same day before. he had reported for work, because the hiring hall had dis- approved him. On November 15, the foreman of the Irving Williams Co. offered him a job and said he could "clear" him with the hiring hall. But the hiring hall refused to issue him a pass, and he obtained no work. The card for Foote is missing from the Asso- x See footnote 21, supra. a See footnote, 21, supra. 362 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ciation's files, but it appears that it listed him as a "commuuist.''2' He received work later, from December 15 until early in March. 1937, in Imperial County. He also worked in Arizona. Bill Redner was working for the Salinas Valley Vegetable Ex- change at the time of the strike. He was a member of the Union, and was financial secretary of Fruit and Vegetable Workers' Union of Arizona. During the strike he worked on the committee which. prepared the Union's strike bulletins. The comments on his card in the Association files are reproduced below.26 After the strike he found that because he had no pass he vas' un- able to get into the various packing sheds -inside the barricades to apply for work. John Noah, foreman of the shed of Irving Wil- liams Co., undertook to obtain a pass for him. At Noah's suggestion, Redner applied at the hiring hall about 2 days after the end of the strike. He stood by the telephone while the clerk receiving applica- tions repeated a lot of names over it, which included his own. She then disappeared into the office of Taylor, who was at that time ill charge of the hiring hall. When she returned she called the names of five or six in the list and of two or three others, and gave them passes, but told Redner and one other applicant that they were "out of luck." Redner obtained no pass, and he was unable to secure work packing in Salinas the rest of the season, although he tried at two or three other sheds. He worked at two box companies, however, and then went to Arizona, where he obtained employment from L. D. McLaren Pack- ing Company.' Later he worked for "Well Pack Packing Com- pany." ' He was working at the time of the hearing. E. G. Huddleston was employed by E. E. Harden Packing Com- pany before the strike. He had been a union member since 1932. During the strike he did picket duty. The comment on Huddleston's card from the Association's file is reproduced below. "1 After the strike was over he made no immediate attempt to secure a job in the Salinas-Watsonville district, because, as he testified at "The comments on the card were read into the record as follows : "Foote, G. (George) 9/4/36. FVWU out on strike. Peter A. Stolich, Inc. 10/27/30 nickname 'Whitey.' Communist . 9/21 /36 (S-1) Communist." eft Redner , B.: "9/4/36 FVWU out on strike . Salinas Valley Vegetable Exchange. CB : Graduate 'of local schools. Employed here and there. Parents own property. 9/18/36-Following notation contained on paper : Bill Redner-Chung. W. Nelson, L., E. Montgomery, S. L., S. Elston. Stolich, E. Alcorn , Spiegl., L. Farris, Gillingham . Picked up in raid on -lirscher. Salinas Communist 9/20/36. 10/2/36-Arrested Salinas chg. on investigation . 21 years ; 148 lbs. ; 5 '9%/ " ; brown eyes ; brown hair. Box maker- lettuce trimmer. 10/17/36-Case to come up 10/27/36 (A-2). Case considered serious by I. L. D. Salinas Sheriff's 9498. Mug #1004. 27 Not a respondent or Association member. 28 So in record . Exhibit B-15 lists Welpak Vegetable Co. of Salinas as an Association member. a" nuddleston. E. : "9/4/36 BV WU out on strike. E. E. Harden Packing Co. 10/27/36 Radical ; trouble maker ; Red . CB: File on ' E. B. Huddlestone ; married twice ; Have accounts against several Huddlestons in town." GROWER-s:H I PPF,R V IECEETABLE ASSOCIATION .OF CENTRAL CALIF. 363. the hearing, it was against his principles to go through the hiring hall. Instead he went south and secured work at the King Packing Company, Resida, California, starting November 16. When the operation finished on December 3 or 4 the company moved to Somer- ton, Arizona, taking the crew with it. His foreman, one "Scotty"- Forington, asked hint personally to come along. When he arrived at Somerton, however, the 'foreman stated that he could not use- Huddleston. He admitted that Huddleston's work was ' satisfactory but asked him whether he had "got into any trouble in Salinas." Hudclleston, however, secured work at M. 0. Best Company in El Centro about December 2:1, where he worked 2 weeks. Not long after he started work Taylor was seen in the shed. The foreman warned Huddleston that Taylor was trying to get hint dismissed. A few days later Hudclleston asked for a short leave, saying, however,. that if it would endanger his job he would not go. He was assured by his foreman that it was all right. But when he returned, he found that his place had been filled. While he was waiting around'. the shed for the foreman to see if any other openings were available,. he saw two new melt hired for work which he was qualified to do. Up to the time of the hearing he had been unable to secure- employment although he had applied at not less than six sheds, in the Salinas-Watsonville district, five of which belonged to mem- bers of the Association, four to respondents in this proceeding. Jack Hart worked for the Crown Packing Company before the strike. He had been a union member since 1933. During the strike. he was an active picket. The comments appearing on his card in the Association files, which are reproduced below, indicate, what a close check was kept on his activities.:" Immediately after the strike Hart applied to the foreman of the. Crown Packing Company for reemployment. He was told to apply at the hiring hall , but refused to do so. Sometime later he did • go. to the hiring hall, and with the help of Noah, foreman of the Wil- lianls shed, succeeded in getting a pass into the enclosure. He worked 1 day for Williams Packing Company, and then, learning that only half a clay's work remained, he quit to take a job in a barroom. When the lettuce season had finished in Salinas he sought work in 30 Hart. J. (Jack Frank ) : "9/4/36 FVWU out. on strike . Crown Packing Co. CB :- Claim for collection cancelled as uncollectible, 5/14/34. 5'5"-144 lbs.-34 years-- single-born Penna. 12/28/36-Backed Left Winger Kesterson up in all his remarks made in Union meeting of 12/24 / 36. 12 / 19/36-Working for Engleman . 12/21/36- Caged #512 . 12/28/36-Working Wahl. 1/2/37-,Called #512. 7.2/29/36-Reported; to be Communist investigator for left wing members of Union. 12 /30/36-Discharged by- Wahl for poor work. 12/31/36-See report on Homer Day of this date. Important. 1/4/37-Working for Hunter Johnson . 1/12/36-Not working Hunter Johnson- 1/29/37-Reported to have left for Salinas with Danny Deavers , Helen Hardeman Fat. McFadden, and Alex Bordges to attend meeting of CIA." :364 DECISIONS OF NATIONAL LABOR RELATIONS BOARD southern California. He worked for a short while at the Engleman shed and 'then at the Martin C. 'Wall Packing Company in Eli Centro. .After 1 or 2 days there his foreman,'Glenn Wright,, told him that the company could not use him, his work was satisfactory but "you have got a finger on you in the office." He was accordingly dis- 'charged about December 30. Wright advised him to keep his mouth 'shut and not ask why and said that if Hart talked it would cost Wright his job. He advised Hart to apply to one Weaver for a job, saying that Weaver "don't care who he uses, he will use anybody, union men, radicals, or anybody can go to work there." Hart had seen Taylor in both the Engleman and Wall sheds. Following Wright's advice, Hart applied to Weaver but found that <ill jobs had been filled. So lie went to work for another firm wash- ing and packing carrots. This job lasted about 9 days, when Hart was let go, in a reduction of the crew. He did not try to get work in any of the Salinas district lettuce sheds in the spring of 1937, feeling -that any such attempt would be useless. He was working, however, presumably in a job of another kind, at the time of the hearing. Oscar Rowe was employed by W. & S. Packing Company (one of the respondents) just before the strike. He was a union member. During the strike he was almost constantly on picket duty. He was arrested for disturbing the peace, convicted with about 200 others who were tried at the same time, and given a. suspended sentence. The entry on his card in the Association files is reproduced in the footnote." After the strike was over he went to the San Fernando Valley and secured work with H. P. Garin Company, one of the respondents, -working until the end of the packing there for about 12 days. About 'Christmas he secured work with the Engleman Packing Company in El Centro. Shortly thereafter he saw Taylor looking around the shed. On January 3 his foreman, Otis Kelso, told Rowe that he was going to have ' to let Rowe and his brother Walter go. Kelso ex- plained that he had been ordered to discharge them by the office. He admitted their work was satisfactory and said that he could give no reason. He told Rowe that it was a question of either his job or theirs. Since that time Rowe has been unable to secure employment in the lettuce sheds although he has tried both at W. & S. Packing Company, his former employer, and again in Arizona. In connec- tion with the incident at the Engleman shed, the entry on Walter 'Rowe's card in the Association files is reproduced below.32 aRowe, Oscar A.: "9/4/36 FVWU out on strike. W.'& S. Packing Co. 1934 Employed with D . A. Storm ; owned home ; no children ; pays bills promptly , however, C . B. had two 'collections which were paid as soon as he was contacted. Apparently . were subject to dispute.' 10/27/36. Trouble maker. No good . Very active striker." ^ Rowe, Walter A. ; "9/4/36 FVWU out on strike. W. & S. Packing Co. C. B. have two collections against Walter A. Rowe of Parkfield , Cal., which total $450 .00. 10/27/36. 'Trouble maker . No good. Very active striker." GROWER-SHIPPER VEGETABLE ASSOCIATION OF CENTRAL CALIF. 365k A. C. King worked for Matsuura & Mauri before the strike. He had been a union member since May 1935. During the strike he was. oil picket duty. No card for him was located in the Association files.- After the strike he went immediately to Arizona, where he applied' for work. at the shed of H. P. Garin Company. Ira Gattis, the fore- man, told him that corning from the Salinas district, he would have to have a clearance ("recommendation") card. Since King had none,. he did not obtain employment at this shed. He later secured work in Arizona with McLaren Packing Company, an employer of union. labor. Shortly before testifying at the hearing King returned to. Salinas, but, although he sought employment at nearly every shed, in the district, he was unable to get any. We think that the evidence which we have recited above is con-- elusive that the Association instituted a system designed to prevent the hiring or continued employment of the more active union members in the sheds of members of the Association and in the sheds of any other 'employers whom it could persuade to cooperate in such scheme. The result was discrimination for union activity against the indi- viduals discussed, which expressed itself in terminating or preventing- employment as follows : John B. Alberty, discharged by W. R. Van Noy, Inc., November 7,. 1936. Forrest Heard, discharged by W. R. Van Noy, Inc., about Novein- ber 15, 1936. 17rs. Marvel Alberty, refused employment by Salinas Packing Co.. not later than May 4, 1937. George Foote, refused employment by Geo. J. Gillingham Co.. November 9, 1936. Bill Redner, refused by Association opportunity of applying for, employment in any sheds within barricades about November 4, 1936- E. G. Huddleston, discharged by King Packing Company; about December 5, 1936, and by M. 0. Best Company about January 7, 1937.. Jack Hart, discharged by Martin C. Wall Packing Company about. December 30, 1936. Oscar and Walter Rowe, discharged by Engleman Packing Corn-- pany January 3, 1937. A. C. King, refused employment by H. P. Garin Company, not later than December 1, 1936. In this scheme the Association was "acting in the interest" of the employers who were members of the Association, and any other employers who were willing to cooperate in the scheme. By virtue of Section 2 (i) of the Act it is, therefore, to be regarded as an employer. The other respondents, except Western Growers Protective As- sociation, S. A. Gerrard Company, Salinas Valley Vegetable 0.366 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Exchange, E. H. Spiegl, Peter A. Stolich, Inc., and Watsonville Ex- rchange,.-Inc.,33 participated in the scheme, all of them, so far as appears, securing their employees after the strike through the hiring hall or following the recommendations of the hall with respect to their employees. Of the firms named as respondents, however, only ,one 44 was directly involved in any of the individual cases. dis- ,cussed-W. R. Van Noy, Inc. Only this firm, therefore, do we find to have itself violated Section 8 (3) of the Act. We find that W. R. Van Noy, Inc., discriminated against John B. Alberty on November .9, 1936, and Forrest Heard about November 15, 1936, in regard to their hire or tenure of employment by terminating their employment on those days, thereby discouraging membership in a labor organization. The respondents participating in the scheme (including W. R. Van Noy, Inc., and the Association), however, are responsible for its effect in causing discrimination by others for reasons of union activity against the individual employees whose cases have been discussed. We find that the respondents (with the exception of Western ,Growers Protective Association, H. P. Garin Company,- i S. A. -Gerrard Company, Salinas Valley Vegetable Exchange, E. H. Spiegl, Peter A. Stolich, Inc., and Watsonville Exchange, Inc.) have, by the scheme referred to, interfered with, restrained, and coerced ,employees in the exercise of the rights guaranteed in Section 7 of the Act. Their participation in the scheme has affected the exercise of such rights not only by the employees actually found to have been discriminated against but also by employees of all members of the _Association and of all other employers whose hiring policy was governed following the strike by the system which we have described. VI. CONCLUSION AS TO CERTAIN RESPONDENTS The evidence does not connect E. H. Spiegl quid '-Western Growers Protective Association with any of the activities set forth in Section V. Neither was a member of the Grower-Shipper Association, and neither authorized the latter Association to act for or represent it. Consequently, the complaint will be dismissed as to these respondents. 'We are also granting the motion of H. P. Garin to dismiss the com- plaint against H. P. Garin Company, of the estate of which he has been appointed receiver. We shall not dismiss the complaint against Merrill Packing Com- pany, Inc., Ltd., or J. A. Simmons, Inc. No satisfactory evidence has been offered in support of the allegations of the answers to the " See footnote 18. supra. 39 Also H. P. Garin Company , in respect to King and the Rowes but for reasons ex- plained below . the case against that respondent will be dismissed. 35 Excepted for reasons stated below. GRO\VER-SHIPPER. VEGETABLE ASSOCIATION OF CENTRAL CALIF. 367 effect that those firms have been dissolved 36 or are in bankruptcy proceedings. Moreover, proof of dissolution of a corporation occur- riilg after its commission of unfair labor practices would not appear to require dismissal of a complaint against it. It is therefore unneces- sary to determine whether the respondent, Peter A. Stolich, Inc., has been dissolved. 37 Vu . THE EFFECT OF THE UNFAIR LABOR PRACTICESOUPON COM1lIERCE We find that the activities of the respondents (except H. P. Garin Company, E. 1-1. Spiegl, and WVestei it Growers Protective Associa- tion) set forth in Section V A, C, D, and E above, occurring in con- nection with the operations of said respondents and of other members of Grower-Shipper Association, described above in Section I, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead and have led to labor disputes burdening and obstructing commerce acid the free flow of commerce. VIII. THE REMEDY In addition to the usual orders to cease and desist their unfair labor practices, we shall order the respondents to take certain affirma- tive action in order to effectuate the policies of the Act.3R We shall order the respondent firms (with certain exceptions to be hereafter explained), and the Grower-Shipper Association when acting as their agent or as agent of its members (again with certain exceptions) for the purpose of bargaining concerning wages, riites of pay, hours of employment, or other cond itions of employment, to bargain col- lectively with United Cannery, Agricultural, Packing and Allied Workers of America, Local 18, the successor , so far as the shed workers in Salinas area are, concerned, to Fruit and Vegetable Workers' Union of California, No. 18211, with which we have found as While it was testified orally that Merrill Packing Company, Inc., Ltd ., has been dis- solved, the only documentary proof offered and admitted was a certified copy of a certificate on file in the clerk's otfico .of the Superior Court for Monterey ' County stating that the shareholders had voted for dissolution of the corporation . This in itself does not effect a dissolution , but merely authorizes the directors to take the necessary steps toward dis- solution. Such action may be revoked at any time prior to the distribution of the corporation's assets. When dissolution has actually been accomplished, n certificate to that effect or a copy of an order of the Superior Court winding the corporation up is filed with the Secretary of State and the county clerk . Deering's California Civil Code (1937) § 400. 401, 403. No copy of such certificate or order was offered in these proceedings, nor was there any evidence that such certificate or order had been issued. sr A certified copy of Certificate of Winding Up and Dissolution of Peter A . Stolich, Inc., dated June 16, 1937 , was filed with the Board following the original hearing in this proceeding. A copy of the Certificate was mailed by counsel for Peter A. Stolich, Inc., to counsel for the Union at the same time . No objections thereto have been filed by the Union , and we therefore order . that the copy filed with the Board be incorporated in the record of this proceeding. sc Western Growers Protective Association, I7. P. Garin Company, and E. H. Spiegl are to be excepted front the provisions of the Order discussed in this section. 368 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that the respondents refused to bargain on September 2, 1936. Since we have found that all the shed workers employed by each of the respondent firms anywhere in the Salinas-Watsonville district con- stitute appropriate bargaining units, and since we are unable to find from the record that Local 18 is the successor to Local 18211 so far as shed workers employed in the Watsonville area are concerned, our order must be restricted to bargaining with employees of firms whose operations are contmed to the Salinas area."-' An exhibit introduced by counsel for the respondents shows the number of shed workers employed on May 8, 1937, by various firms, including all named as respondents except M. L. Kalich & Company, and their division as between Salinas (including Castroville and Moliis) and Watsonville (including Hollister). On the basis of the evidence we find that Local 18 succeeded Local'18211 as exclusive bargaining agent so far as the shed workers employed in the Salinas-Watsonville district by the following respondent firms are concerned : A. Arena & Company, Ltd., Bruce Church Company, Farley Fruit Company, Farmers Prod- uce Company, W. B. Grainger Packing Company, E. E. Harden Packing Company, Holme & Seifert, Major Distributing Company, Merrill Packing Company, Inc., Ltd., P. R. Nutting Company, S. Rianda Packing Company, Salinas Lettuce Company, Salinas Valley Vegetable Exchange, J. A. Simmons, Inc., D. A. Storm, Inc., Peter A. Stolich, Inc., The Lester Stirling Company, W. R. Van Noy, Inc., W. & S. Packing Company. Our order to the respondent firms to bargain with Local 18 will be restricted to those named above. We find also that it succeeded Local 18211 as exclusive bargaining agent so far as the shed workers employed in the Salinas-Watsonville dis- trict by the following members of the Grower-Shipper Association, not named as respondents, are concerned : D'Arrigo Brother Colin- pany, Growers Produce Dispatch, Hunter Johnson, Arthur Mann, Monterey Bay Farms, Premier Produce Company, Salinas Packing Company, and Welpak Vegetable Company. Our order to the Association to bargain with Local 18 will be restricted to the case of negotiation on behalf of the respondents named above, the non-respondent members of the Association just named, and other members of the Association 'whose shed workers in the Salinas-Watsonville district are employed by them only in" the Salinas area. We shall also order 'he reinstatement or employment of the in- dividual employees or applicants against whom we have found that discrimination in hire or tenure of employment was practiced or caused by the respondents. In addition, remedial pay for the, period g' The geographical division between the Salinas and Watsonville areas is to be that which separated the jurisdiction of the Watsonville sublocal of Local 18211 from the jurisdiction of the Salinas local. GROWER-SHIPPER VEGETABLE ASSOCIATION OF CENTRAL CALIF. 369 from the earliest date upon which the discrimination expressed itself in terminating or preventing employment to the date of the offer of reinstatement or employment shall be paid, less the net earnings 40 of the individual during such period. Such pay shall be calculated on the basis of the average of his weekly earnings during the year ending September 3, 1936. This part of the Order will run against the Association and the respondents who were members of the Association requiring them to cause offers of reinstatement or employment to be made to the per- sons involved. While of the respondents named, only W. R. Van Nov, Inc., directly discriminated against any of these persons, all of the members of the Association (as. well as the Association) participated in the scheme which produced the discrimination. It is the Board's duty to frame an order which will as nearly as possible restore the situation which would have existed in the absence of the hiring-hall scheme. We shall also order W. R. Van Noy, Inc., to make offers of re- instatement directly to the two employees against whom we have found that it discriminated. In accordance also with our usual practice we shall order that those employees of the respondent firms (except H. P. Garin Com- pany and E. H. Spiegl ) who went out on strike on September 4, 1936, in protest against the unfair labor practices of the Association and the firms it was representing, be offered the opportunity , upon appli- cation, of returning to work in the positions which they occupied before the strike or in positions substantially equivalent thereto. This order, which will be directed to all the respondent firms (except H. P. Garin Company and E. H. Spiegl ), will except such strikers as have, since the strike, been reinstated in the positions occupied by them before the strike. Such reinstatement shall be effected in the following manner: Each employee ordered reinstated shall be entitled to reinstatement to his former or a substantially equivalent position in the shed of the respondent firm by whom he was employed at the time of the strike. All eanployees -hired since the commencement of the strike shall, if necessary to provide positions for those to be reinstated , be dismissed. 40 By net earnings" is meant earnings less expenses , such as for transportation, room, and hoard, incurred in connection with obtaining work and working elsewhere, which would not have been incurred but for the unlawful discharge, or refusal of employment, and the consequent necessity of seeking employment elsewhere. See Matter of Crossett Lumber Company and United Brotherhood of Carpenters and Joiners of America, Lumber and. hairmill Workers Union, Local 2590, 8 N. L. R. B. 440. Monies 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 government or governments which supplied the funds for said work-relief projects. 370 DECISIONS OF NATIONAL LABOR RELATIONS BOARD If, thereafter, by reason of reduction in force there are not sufficient positions available in the respondent's shed for the remaining em- ployees, including those to be reinstated, all available positions shall be distributed among such remaining employees in accordance with the respondent's usual method of reducing its force without dis- crimination against any 'employee because of his union affiliation or activities and following a system of seniority to such extent as has heretofore been applied in the conduct of the respondent's business. Those employees remaining after such reduction, for whom there are then no available positions, shall be placed upon a preferential list prepared in.accordance 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 position. In view of the fact that it is impossible to determine on the record whether each of the strikers applied for reinstatement, to what extent applications were refused, and on what grounds, we shall not order back pay for the period prior to the issuance of this Order. We shall, however, order the payment of such stuns as may be necessary to make whole any employees who are refused reinstatement pursuant to our Order. The fact that the respondent, Peter A. Stolich, Inc., may have been dissolved following the original hearing in this proceeding requires no modification of the terms of the Order from those set forth in the Proposed Order. So far as the Order contemplates continuing busi- ness activity, it will simply be inapplicable to that respondent if the latter has been dissolved, but .it will be applicable otherwise, as, for example, in its provisioais for back pay. Any successor to said respondent will, of course, by its terms, be subject to the Order. Upon the basis of the above findings of fact and upon the entire record in the case, the Board makes the following : CONCLUSIONS OF LAW 1. Fruit and Vegetable Workers' Union of California, No. 18211, was, and United Cannery, Agricultural, Packing and Allied Workers of America., Local 18, its successor so far as shed workers in the Salinas area are concerned, is a labor organization, within the mean- ing of Section 2 (5) of the Act. 2. The respondent, Grower-Shipper Vegetable Association of Ceii- tral California is an employer of the employees involved herein, within the meaning of Section 2 (2) of the Act. 3. The shed workers, employed in the Salinas-Watsonville district in packing lettuce by members of Grower-Shipper Vegetable Associa- tion of Central California and by those other firms which on August GROWER-SHIPPER VEGETABLE, ASSOCIATION OF CENTRAL, CALIF. 37I_ 11, 1936, authorized said Association to represent them in labor mat- ters, are employees, within the meaning of Section 2 (3) of" the Act,_ 2n The shed workers employed in. packing lettuce in the, Salinas- Watsonville district by each of the respondent firms constitute a: unit appropriate for the purposes of collective bargaining, within the. meaning of Section 9 (b) of the Act. 5. On August 6, 1936, and all times thereafter until about July; 12, 1937, Fruit and Vegetable Workers' Union of California,. No.. 18211, was the exclusive representative for the purposes of collective- bargaining, within the meaning of Section 9 (a) of the Act, of all the employees in each of such units, except the employees of E. H. _ Spiegl; and from and after about July 12, 1037, United Ckmiery,_ Agricultural, Packing and Allied Workers of America, Local 18,.. has at all times been such exclusive representative of all the em- ployees in each of such units as were confined to employees in the- Salinas, as distinguished from the Watsonville area. 6. By iefusing to bargain collectively with Fruit and Vegetable- Workers' Union of California, No. 18211,. on September 2, 1936, as. the exclusive representative of the employees in each of, the units. held appropriate in paragraph 4 above, the respondent, Grower- Shipper Vegetable Association of Central California, acting for itself: and as agent for and in the interest of its members and. all the re- spondents named herein (except Western Growers Protective Asso- H. P. Garin Company, and E. H. Spiegl) engaged in unfair- labor practices, within the meaning of Section 8 (5) of the Act. 7. By refusing to bargain collectively, through Grower-Shipper Vegetable Association of Central California, with Fruit and Vege- table Workers' Union of California, No. 18211, on September 2, 1936,. as the exclusive representatives of all of its employees in the unit held appropriate in paragraph 4 above, each of the other respondents- named herein (except 117estern Growers Protective Association, H. P. Garin Company, and E. H. Spiegl) engaged in unfair labor prac- tices, within the meaning of Section 8 (5) of the Act. 8. By such refusal, thereby interfering with, restraining, and' coercing employees in the exercise of the rights guaranteed in Sec- tion 7 of the Act, the respondents (except Western Growers Pro- tective Association, H. P. Garin Company, and E. H. Spiegl) have- engaged in unfair labor practices, within the meaning of Section 8 (1) of the Act. 9. By discriminating in regard to the tenure of employment of John B. Alberty and Forrest Heard, thereby discouraging member- ship in Fruit and Vegetable Workers' Union of Central California,, No. 18211, the respondent W. R. Van' Noy, Inc., has engaged in, unfair labor practices, within the meaning of Section 8 (3) of the Act.. 11 372 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 10. By practicing or causing discrimination in regard to the hire or tenure of employment of John B. Alberty, Forrest Heard, Mrs. Marvel Alberty, Oscar Rowe, Walter Rowe, Bill Redner, E. G. Huddleston, Jack Hart, George Foote, and A. C. King, and thus interfering with, restraining, and coercing employees in the exercise of the rights guaranteed in Section 7 of the Act, the respondents (except Western Growers Protective Association, H. P. Garin Com- pany, S. A. Gerrard Company, Salinas Valley Vegetable Exchange, E. H. Spiegl, Peter A. Stolich, Inc., and Watsonville Exchange, Inc.) have engaged in unfair labor practices, within the meaning of Sec- tion 8 (1) of the Act. 11. By inducing Tracy-Waldron Fruit Company to abandon its :attempt to pack independently of the Grower-Shipper Association during the course of the strike, thus nullifying the operation of the contract made between such company and the Union and thereby =interfering with, restraining, and coercing employees in the exercise of the rights guaranteed in Section 7 of the Act, the respondents- (except Western Growers. Protective Association, H. P. Garin Com- pany, S. A. Gerrard Company, Salinas Valley Vegetable Exchange, E. H. Spiegl, Peter A. Stolich, Inc., and Watsonville Exchange,. Inc.) have engaged in unfair labor practices within the meaning of Sec- tion 8 (1) of the Act. 12. The aforesaid unfair labor practices are unfair labor practices affecting commerce, within the meaning of Section 2 (6) and (7) of the Act. 13. Western Growers Protective Association, H. P. Garin Com- pany, and E. H. Spiegl have not engaged in unfair labor practices, within the meaning of Section 8 of the Act; and none of the respond- ents except W. R. Van Noy, Inc., have engaged in unfair labor prac- tices, within the meaning of Section 8 (3) of the Act. ORDER Upon the basis of the above findings of fact and conclusions of law, and pursuant to Section 10. (c) of the National Labor Relations Act, the National Labor Relations Board hereby orders that : 1. Each of the following respondents and its officers, agents, suc- cessors, and assigns shall cease and desist from refusing to bargain collectively in respect to rates of pay, wages, hours of employment, and other conditions of employment with United Cannery, Agricul- tural, Packing and Allied Workers of America, Local 18, successor to Fruit and Vegetable Workers' Union of California, No. 18211, as the exclusive representative of the shed workers employed in the Salinas-Watsonville district by each of said respondents : A. Arena .& Company, Ltd., Bruce Church Company, Farley Fruit Company, GROWER-SHIPPER VEGETABLE ASSOCIATION OF CENTRAL CALIF. 373 Farmers Produce Company, W. B. Grainger Packing Company, E. E. Harden Packing Company, Holme & Seifert, Major Distributing Company, Merrill Packing Company, Inc., Ltd., K. R. Nutting Com- pany, S. Rianda Packing Company, Salinas Lettuce Company, Sa- linas Valley Vegetable Exchange, J. A. Simmons, Inc., D. A. Storm, Inc., Peter A. Stolich, Inc., The Lester Stirling Company, W. R. Van Noy, Inc, W. & S. Packing Company. 2. The respondent, Grower-Shipper Vegetable Association of Cen- tral California and its officers, agents, successors, and assigns, when acting for the purpose of bargaining concerning wages, rates of pay, hours of employment, or other conditions of employment, for itself or in the interest of any of the respondents named in paragraph 1 above or of any members of said Association 41 whose packing op- erations in the Salinas-Watsonville district are confined to the Sa- linas, as distinguished from the Watsonville area, shall cease and desist from refusing to bargain collectively, with respect thereto, with United Cannery, Agricultural, Packing and Allied Workers of America, Local 18, successor to Fruit and Vegetable Workers' Union of California, No. 18211, as the exclusive representative of the shed workers employed in the Salinas-Watsonville district by each of said respondents or members. 3. The respondent, W. R. Van Noy, Inc., and its officers, agents, successors, and assigns shall cease and desist from discouraging mem- bership in United Cannery, Agricultural, Packing and Allied Work- ers of America, Local 18, successor, so far as the Salinas area is con- cerned, to Fruit and Vegetable Workers' Union of California, No. 18211, or any other labor organization, by discrimination in regard to hire or tenure of employment or any term or condition of employment. 4. The respondent, Grower-Shipper Vegetable Association of Cen- tral California, when acting for itself or as agent or in the interest of any of its members, each of the other respondents (except West- ern Growers Protective Association, H. P. Garin Company, S. A. Gerrard Company, Salinas Valley Vegetable Exchange, E. H. Spiegl, Peter A. Stolich, Inc., and Watsonville Exchange, Inc.), and their respective officers, agents, successors, and assigns shall cease and de- sist from maintaining surveillance of or employing any manner of espionage for the purpose of ascertaining and investigating the activ- ities of United Cannery, Agricultural, Packing and Allied Workers of America, Local 18, successor, so far as the Salinas area is con- cerned, to Fruit and Vegetable Workers' Union of California, No. 41 Including D'Arrigo Brothers Company, Growers Produce Dispatch, Hunter Johnson, Arthur Mann, Monterey Bay Farms, Premier Produce Company, Salinas Packing Company, and Welpak Vegetable Company. 199549-39-vol. 15--25 374 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 18211, or of the activities of any of their employees or of any em- ployees of members of the Grower-Shipper Vegetable Association of Central California in connection with such organization or any other labor organization. 5. The respondent, Grower-Shipper Vegetable Association of Central California, when acting for itself, or as agent or in the interest of any of its members, each of the other respondents (except Western Growers Protective Association, H. P. Garin Company, and E. H. Spiegl), and their respective officers, agents, successors, and assigns shall cease and desist from in any other manner inter- fering with, restraining, or coercing their employees and the employees of members of the Grower-Shipper Vegetable Association of Central California in the exercise of the right to self-organization, to form labor organizations, to join or assist United Cannery, Agri- cultural, Packing and Allied Workers of America, Local 18, suc- cessor, so far as the Salinas area is concerned, to Fruit and Vegetable Workers' Union of California, No. 18211, or any other labor organi- zation, 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, as guaran- teed in Section 7 of the Act. 6. The respondents (except Western Growers Protective Associa- tion, H. P. Garin Company, S. A. Gerrard Company, Salinas Valley Vegetable Exchange, E. H. Spiegl, Peter A. Stolich, Inc., and Watsonville Exchange, Inc.), and their officers, agents, successors, and assigns shall take the following affirmative action, which the Board finds will effectuate the policies of the Act : Cause an offer of immediate and full reinstatement to or employment in their former positions or the positions substantially equivalent thereto to be made to John B. Alberty, Forrest Heard, Mrs. Marvel Alberty, Bill Redner, E. G. Huddleston, Jack Hart, Oscar Rowe, Walter ,Rowe, George Foote, and A. C. King. 7. The respondents subject to the order in paragraph 6 above and their officers, agents, successors, and assigns shall take the following affirmative action, which the Board finds will effectuate the policies of the Act: Cause the employees named in paragraph 6 above to be made whole for any loss of pay they have suffered by reason of the discrimination in regard to their hire or tenure of employment practiced or caused by said respondents, by a payment to each of them, respectively, of a sum of money equal to that which each would normally have earned as wages during the period from the date of said discrimination to the date of the offer of reinstatement or employment made in accordance with paragraph 6 above, to be calculated in the manner set forth in the section entitled "Remedy" GROWER-SHIPPER VEGETABLE ASSOCIATION OF CENTRAL CALIF. 375 above, less his net earnings during said period; deducting, however, from the amount otherwise due to each of the said employees, monies received by said employee during said period for work performed upon Federal, State, county, municipal, or other work-relief projects, and pay over the amount, so deducted, 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. 8. Each of the respondents named in paragraph 1 above and its officers, agents, successors, and assigns shall take the following affirmative action, which the Board finds will effectuate the policies of the Act : Upon request, bargain collectively in respect to rates of pay, wages, hours of employment, and other conditions of employ- ment with United Cannery, Agricultural, Packing and Allied Work- ers of America, Local 18, successor to Fruit and Vegetable Workers' Union of California, No. 18211, as the exclusive representative of the shed workers employed in the Salinas-Watsonville district by each of said respondents. 9. The respondent, Grower-Shipper Vegetable Association, and its officers, agents, successors, and assigns shall take the following affirmative action, which the Board finds will effectuate the .policies of the Act : Upon request, when acting as agent for the purpose of bargaining concerning wages, rates of pay, hours of employment, or other conditions of employment on behalf of any of the respondents named in paragraph 1 above or on behalf of any member of said Association 42 whose packing operations in the Salinas-Watsonville district are confined to the Salinas, as distinguished from the Watson- ville area, bargain collectively in respect to rates of pay, wages, hours of employment, and other conditions of employment with United Cannery, Agricultural, Packing and Allied Workers of America, Local 18, successor to Fruit and Vegetable Workers' Union of Cali- fornia, No..18211, as the exclusive representative of the shed workers employed in the Salinas-Watsonville district by each of said respondents or members. 10. Each of the respondents (except Grower-Shipper Vegetable Association of Central California, Western Growers Protective As- sociation, H. P. Garin Company, and E. H. Spiegl), its officers, agents, successors, and assigns shall take the following affirmative action, which the Board finds will effectuate the policies of the Act : Upon application, offer to the shed workers who were employed by it in the Salinas-Watsonville district on September 3, 1936, and who have not since been fully reinstated, full and immediate reinstatement in the manner set forth in the section entitled "Remedy" above, placing 42Including those named in footnote 41, supra. 376 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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. 11. Each of the respondents subject to the order in paragraph 10 above and its officers, agents, successors, and assigns shall take the following affirmative action, which the Board finds will effectuate. the policies of the Act : Make whole all the shed workers who were employed by it in the Salinas-Watsonville district on September 3, 1936, and who are ordered to be offered reinstatement for any loss of pay they will have suffered by reason of the respondent's refusal of reinstatement or placement upon the preferential list required by paragraph 10 above, following the issuance of this Order, by payment to each of them of a sum of money equal to that which each would normally. have, earned as wages during the period from five (5) days after the date of such application for reinstatement to the date of the offer of reinstatement or placement upon the preferential list, less his. net earnings during such period; provided, however, that the respondent shall deduct from the amounts otherwise due said shed workers, monies received by said shed workers during said period for work performed upon Federal, State, county, municipal, or other work-relief projects and pay over the amounts so deducted to the appropriate fiscal agency of the Federal, State, county, munic- ipal, or other government or governments which supplied the funds for said work-relief projects. 12. Each of the respondents (except Grower-Shipper Vegetable Association of Central California, Western Growers Protective As- sociation, H. P. Garin Company, and E. H. Spiegl) and its officers, agents, successors, and assigns shall take the following affirmative action, which the Board finds will effectuate the policies of the Act : (a) Post notices immediately in conspicuous places in its packing sheds in the Salinas-Watsonville district stating that it will cease and desist as set forth in the applicable paragraphs of paragraphs 1, 2, 3, 4, and 5 above and take the affirmative action as set forth in the applicable paragraphs of paragraphs 6, 7, 8, 9, and 10 above; and (b) maintain such notices for a period of sixty (60) days from the date of posting. 13. The respondent, Grower-Shipper Vegetable Association of Cen- tral California, and its officers, agents, successors, and assigns shall take the following affirmative action, which the Board finds will effectuate the policies of the Act : Publish' in a daily newspaper of general circulation in Salinas and Watsonville, California, at least once each fortnight for a period of eight (8) weeks a notice stating that it will cease and desist as set forth in, paragraphs 2, 4, and 5 GRO'C'ER-SHIPPER VEGETABLE ASSOCIATION OF CENTRAL CALIF. 377 above and take the affirmative action as set forth in paragraphs 6, 7, and 9 above. 14. Each of the respondents (except Western Growers Protective Association, H. P. Garin Company, and E. H. Spiegl ) shall notify the Regional Director for the Twentieth Region in writing within ten (10) days from the date of this Order what steps it has taken to comply herewith. 15. The complaint as against Western Growers Protective Asso- ciation, H.T. Garin Company, and E. H. Spiegl be, and it hereby is, dismissed ; and the allegations of the complaint that the respondents other than W. R. Van Noy, Inc., have engaged in unfair labor prac- tices within the meaning of Section 8 (3) of the Act be, and they hereby are, dismissed. MR. WILLIAM M. LEISERSON took no part in the consideration of the above Decision and Order.