California Walnut Growers Association

In the Matter of CALIFORNIA WALNUT GROWERS ASSOCIATION and WAL- NUT WORKERS UNION, LOCAL 92 OF UNITED CANNERY, AGRICULTURAL, PACKING AND ALLIED WORKERS OF AMERICA Cases Nos. C-762 and R-816.-Decided December 00, 1939 Walnut Marketing Industry--Employer: cooperative marketing association- Employee Status: employees of walnut shelling plants which are owned and operated by cooperative walnut growers marketing association not employed as agricultural laborers-Interference, Restraint, and Coercion-Company-Dom- inated Union: solicitation for membership in by supervisory employees ; recogni- tion of and closed-shop contract with at a time when respondent had before it, uninvestigated, rival membership claims and demands of outside union ; ordered, disestablished-Closed-Shop Contract: with company-dominated union, abro- gated-Discrimination: discharge in accordance with closed-shop contract of eight employees who refused to join inside union ; responsibility of respondent for forcible ejection from plant property of seven of these employees, after their reinstatement, by employee members of inside union; second discharge of the eight employees-Reinstatement: ordered-Back Pay: awarded, period of one employee's disability excluded in computing amount of-Investigation of Repre- sentatives: controversy concerning representation of employees : refusal to recog- nize petitioning union-Unit Appropriate for Collective Bargaining: production and maintenance employees at two shelling plants excluding clerical, office, and supervisory employees-Election Ordered: at a time in future to be deter- mined by Board. Mr. David Sokol, and Mr. William R. Walsh, for the Board. Farrcand & Slosso'n by Mr. Edward E. Tuttle, of Los Angeles, Calif., for the respondent. Gallager, Wirin d Johnson, by Mr. Leo Gallager and Mr. A. L. Wirin, of Los Angeles, Calif., for the Walnut Workers Union. Mr. Jack L. Powell of Los Angeles, Calif., for the Employees Association. Mr. Clyde Thomas, of Los Angeles, Calif., for the Intervenor, E. C. Kimball. Miss Margaret M. Farmer, of counsel to the Board. i The name of the Walnut Workers Union was incorrectly designated in the captions in Cases Nos. C-762 and R-816. During the course of the hearing a motion was granted to conform the pleadings to the proof. 18 N. L. R. B., No. 69. 493 494 DECISIONS OF NATIONAL LABOR RELATIONS BOARD DECISION ORDER AND DIRECTION OF ELECTION STATEMENT OF THE CASE On September 21, 1937, United Cannery, Agricultural, Packing and Allied Workers of America filed with the Regional Director for the Twenty-first Region (Los Angeles, California) charges in behalf of Walnut Workers Union, Local 92 of United Cannery, Agricultural, Packing and Allied Workers of America, herein called the Walnut Workers Union, alleging that California Walnut Growers Association (Los Angeles, California), herein called the respondent, had engaged in and was engaging in unfair labor practices affecting commerce, within the meaning of Section 8 (1) and Section 2 (6) and (7) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. On October 12, 1937, the Walnut Workers Union amended said charges to include an allegation that the respondent had engaged in and was engaging in unfair labor practices within the meaning of Section 8 (2) of the Act, and on October 13 and 14, 1937, further amended said charges to include allegations that the respondent had engaged in and was engaging in unfair labor practices within the meaning of Section 8 (3) of the Act. On September 25, 1937, the Walnut Workers Union filed with the Regional Director a petition alleging that a question affecting com- merce had arisen concerning the representation of employees of the respondent employed at its Los Angeles Plants Nos. 1 and 2 2 and requesting an investigation and certification of representatives pur- suant to Section 9 (c) of the Act. On October 20, 1937, the National Labor Relations Board, herein called the Board, acting pursuant to Section 9 (c) of the Act and Article III, Section 3, of National Labor Relations Board Rules and Regulations-Series 1, as amended, ordered an investigation and di- rected the Regional Director to conduct it and to provide for an appropriate hearing upon due notice and, acting pursuant to Article II, Section 37 (b), and Article III, Section 10 (c) (2), of the Rules and Regulations, further ordered that the representation proceeding and the proceeding with respect to the alleged unfair labor practices be consolidated for the purpose of hearing and that one record of the hearing be made. 2 The instant proceedings are exclusively concerned with the employees at these two plants. All references hereinafter to the respondent's employees are limited to this group. CALIFORNIA WALNUT GROWERS ASSOCIATION 495 On November 8, 1937, the Board, by the Regional Director, issued its complaint against the respondent alleging that the respondent had engaged in and was engaging in unfair labor practices affecting com- merce, within the meaning of Section 8 (1), (2), and (3) and Section 2 (6) and (7) of the Act. Copies of the complaint with accompany- ing notice of hearing were duly served upon the respondent, upon the Walnut Workers Union, and upon California Walnut Growers Em- ployees Association, herein called the Employees Association, a labor organization. As to the unfair labor practices, the complaint alleged in substance: (1) that on or about September 1, 1937, the respondent caused to be organized the Employees Association, rendered clerical, financial, and other support thereto and further aided it by entering into a closed-shop agreement with it; (2) that by the terms of said agreement the respondent recognized the Employees Association as exclusive bargaining representative for all employees in Los Angeles Shelling Plants 1 and 2 although said organization was not at the time of its recognition such representative within the meaning of the Act; (3) that on or about October 13, 1937, the respondent discharged and has since refused to reinstate Lucille King, Helen Metkovich, Eva Dzida, Pauline Metkovich, Sara Rivera, and Alice Stupin and on October 14, 1937, discharged and has since refused to reinstate Nancy Peinado and Angela Cobas for the reason that each of these eight employees joined and assisted the Walnut Workers Union and refused to join the Employees Association; (4) that by the foregoing acts and by threatening its employees with loss of employment if they failed to join the Employees Association, the respondent interfered with, re- strained, and coerced its employees in the exercise of the rights guar- anteed by Section 7 of the Act. On November 12, 1937, before the hearing convened, E. C. Kimball, an individual member of the respondent Association, herein referred to as the Intervenor, petitioned and obtained from the United States District Court, Southern District of California, a restraining order commanding the Board and its agents to desist from further pro- ceeding in this matter. Accordingly, the Regional Director ordered the hearing to be adjourned indefinitely. On February 14, 1938, said Court dismissed the bill of complaint supporting the restraining order. Upon amended charges duly filed on behalf of the Walnut Workers Union, the Regional Director issued an amended complaint dated February 21, 1938, supplementing the original complaint by the addi- tion of the names of officers and agents through whom the respondent was alleged to have aided the Employees Association. Copies of the amended complaint and accompanying notice of hearing were duly served upon the respondent, upon the Walnut Workers Union, and upon the, Employees Association. The respondent filed an answer 496 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to the amended complaint in which it admitted entering into a closed-shop contract with the Employees Association but denied the allegations of unfair labor practices and alleged as affirmative defenses (1) that on the date upon which the collective bargaining agreement was entered into the Employees Association represented a majority of the employees in an appropriate unit and (2) that the employees in said unit are agricultural laborers. The Intervenor filed with the Regional Director a motion to dismiss the complaint on the ground that the respondent's employees are agricultural laborers and that their work does not affect commerce within the meaning of the Act, and also filed a motion for leave to intervene in the proceedings for the limited purpose of contesting the juris- diction of the Board. The Regional Director denied the motion to dismiss the complaint and granted the motion for leave to intervene. The Employees Association filed with the Regional Director a peti- tion to intervene in the proceedings and an answer to the amended complaint.,, The Regional Director denied the petition on the ground that the Employees Association was already a party to the proceed- ings. The Regional Director's ground for denying the petition to intervene was erroneous.' The Board hereby overrules his ruling and grants the petition to intervene, name pro taw. Inasmuch as the Employees Association has consistently been treated as a party throughout the proceeding, the ruling hereby overruled entailed no prejudicial error. Pursuant to notice, a hearing was held in Los Angeles, California, on March 3 to 14, and May 9 to 19, 1938, before Thomas H. Kennedy, the Trial Examiner duly designated by the Board. The Board, the respondent, the Walnut Workers Union, the Employees Association, and the Intervenor were represented by counsel and participated in the hearing. On March 14, 1938, the hearing was postponed pending an attempted settlement of the case by,, stipulation. On March 29, 1938, upon further amended charges duly filed by the Walnut Workers Union, the Regional Director issued a second amended complaint incorporating the allegations of the amended complaint and additionally alleging in substance that on or about March 14, 1938, the respondent reinstated the employees named in the complaint pursuant to a tentative stipulation entered into by the parties, but that on or about March 22, 1938, it restrained said employees from entering its plants and has since refused them rein- statement. Answers to the second amended complaint were filed by the respondent and by the Employees Association. On April 21, 8 The answer filed March 3, 1938 , is erroneously described in its text as an answer to "the fourth amended complaint." ' See Article II, Section 19, of National Labor Relations Board Rules and Regulations- Series 1, as amended. CALIFORNIA WALNUT GROWERS ASSOCIATION 497 1938, upon an amendment to the fifth amended charge filed by the Walnut Workers Union, the Regional Director issued an amend- ment to the second amended complaint alleging that on or about September 21, 1937, the respondent refused to bargain with the Walnut Workers Union, although the Walnut Workers Union represented a majority of the respondent's employees within an appropriate unit. On May 9, 1938, pursuant to notice, the hearing was resumed and continued from May 9 to 14 and from May 16 to 19, inclusive. During the entire hearing, full opportunity to be heard, to examine and cross-examine witnesses, and to produce evidence bearing upon the issues was afforded all parties. During the hearing and at the close of the Board's case, counsel for the respondent and counsel for the Employees Association moved to dismiss the petition on the ground that no question of representation existed and moved to dismiss the complaint on the ground that the Board lacked juris- diction over the respondent. At the close of the hearing, counsel for the respondent renewed his motion to dismiss the complaint and counsel for the Intervenor renewed a similar motion filed prior to the hearing. The Trial Examiner denied the motions to dismiss the complaint. He denied the motions to dismiss the petition on the ground that he lacked authority to grant said motions. Counsel for the Walnut Workers Union moved to be permitted to withdraw its amendment to the fifth amended charge alleging a violation of Section 8 (5) of the Act. The Trial Examiner granted this motion and, upon motion of counsel for the Board, dismissed the amend- ment to the second amended complaint which alleged a violation of Section 8 (5) of the Act. A motion of counsel for the Walnut Workers Union to amend the petition by interlineation to exclude male employees, and supervisory, clerical and office employees from the unit and a motion of counsel for the Board to conform the pleadings to the proof were granted. The Trial Examiner also made rulings on other motions and on the admission of evidence. The Board has reviewed all rulings of the Trial Examiner and finds that no prejudicial errors were committed. The rulings are hereby affirmed. On July 7, 1938, the Trial Examiner issued his Intermediate Report, copies of which were duly served upon all parties, in which he found that the respondent had engaged in unfair labor practices affecting commerce, within the meaning of Section 8 (1), (2), and (3) and Section 2 (6) and (7) of the Act. He recommended that the respondent cease and desist therefrom, withdraw all recognition from and completely disestablish the Employees Association as a collective bargaining agent of its employees, offer full reinstatement with back pay to the eight employees named in the complaint, and take certain other action to remedy the situation brought about by 498 DECISIONS OF NATIONAL LABOR RELATIONS BOARD its unfair labor practices. Exceptions to the Intermediate Report and briefs were filed by the respondent and by the Intervenor. A request to be heard by the Board upon written briefs in lieu of oral argument was filed by the respondent. The Board has considered the exceptions to the Intermediate Report and the briefs filed by the parties, and, except as the excep- tions are consistent with the findings, conclusions, and order set forth below, finds them to be without merit: Upon the entire record in the case, the Board makes the following : FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENT California Walnut Growers Association, a corporation organized under the cooperative marketing laws of California, with its principal place of business in Los Angeles, California, is engaged in the busi- ness of marketing the annual walnut crops of approximately 8,300 growers located throughout the State of California. The growers are grouped into local cooperative associations which operate packing houses known as Locals.5 The Locals receive the entire crops of their association members, process and pack them, and deliver them to the respondent for marketing. The relationships between grower and Local, and between Local and the respondent, known as Central, are governed by written agreements. The membership of the re- spondent is composed of one representative from each Local. The policies of the respondent are controlled by a Board of Directors chosen from among the members. The agreement between the re- spondent and the Locals establishes the former as the general agent of each Local in all matters concerning the marketing of the crop. By the terms of this agreement, the respondent agrees to buy from the Locals all the walnuts controlled by them and is authorized to pool the walnuts thus received and to grade and resell them at times and under conditions determined by it. Each shipment of walnuts is made from the Local to the respondent in the name of the respond- ent as both consignor and consignee, and the bill of lading is delivered to the respondent. The respondent owns and operates in Los Angeles a large ware- house and cold storage plant where it receives and stores, and whence it ships walnuts in the shell, and the two shelling plants involved in the present proceedings where it prepares shelled walnuts for market. In addition to marketing the walnuts of its members, the respondent acts as agent for the Walnut Control Board and for the California O Several large individual ranches which are members of the respondent operate their own packing houses. These packing houses are also known as Locals. CALIFORNIA WALNUT GROWERS ASSOCIATION 499 Walnut Control Board in the sale of walnuts annually acquired by them.' During the season of 1936 the respondent marketed, through brok- ers located in practically every State in the United States, unshelled walnuts to the value of $6,389,171 and shelled walnuts to the value of $3,184,030. Of its 1936 crops, 93 per cent in value of unshelled walnuts and 77.21 per cent in value of shelled walnuts 7 were sold and shipped outside the State of California. The respondent employs approximately 1250 employees in its two shelling plants. H. THE APPLICATION OF THE ACT TO SHELLING PLANT EMPLOYEES At its shelling plants the respondent prepares for market those walnuts which, because they are culls," or because they have been acquired as surplus by the Walnut Control Boards, either Federal or State, and thus removed by operation of law from the domestic mar- ket for unshelled walnuts, must be shelled to be merchantable.9 The shelling operations, which are similar at the two plants, may be described as follows : the walnuts are first fed into large cracking machines which crack the shells without destroying the kernels; the cracked nuts are then carried in cartons by employees called "han- dlers" to bins located above long tables occupied by "pickers"; the "pickers," women employees working by hand, draw the cracked nuts from the bins, separate the kernels from the shells, grade these kernels as to size and color by placing each individual walnut meat in one of several containers depending upon its grade, and placing the debris in a different container. Each picker has a separate set of such containers. When the pickers' containers or "cups" are full they are picked up by a "forelady" or "supervisor" and by "checkers" and carried to the ends of the pickers' tables where the kernels are weighed, the poundage recorded, and the records sent to the time- keeping office. The kernels are then placed in large wooden boxes which are taken to the grading department by handlers. When the 6 The Secretary of Agriculture , in accordance with provisions of the Agricultural Adjust- ment Act, 7 U. S. C. A. ¢ 608 c ( 6) (D) (E), and the Director of Agriculture of the State of California , pursuant to provisions of the Agricultural Code of California , 1933, as amended 1937 , 1300.15 b ( 1), annually determine a certain percentage of the walnut crop to be surplus and unmarketable as unshelled walnuts in the domestic market. The Walnut Control Board and the California Walnut Control Board, acting on orders of the Secretary and Director respectively, acquire and sell this surplus either in foreign coun- tries or as shelled walnuts in the domestic market. The two Boards have the same per- sonnel and act concurrently. 7It was stipulated at the hearing that the 1937 crop would approximate the 1936 crop in size and that in 1937 approximately 70 per cent of the walnuts shelled would be sold outside the State of California. 8 A cull is a walnut which, because of some imperfection such as a mouldy kernel or an adhering hull, does not meet the Federal , State, or Association standard of quality for walnuts in the shell. 8 See footnote 6. 500 DECISIONS OF NATIONAL LABOR RELATIONS BOARD pickers' debris containers are full, the contents are allowed to drop into bins by "shell girls" who examine the contents to see that the pickers have not included too many edible meats in the debris. In the grading department the kernels are carried to grading tables where they are placed upon conveyor belts which pass before em- ployees called "graders," who inspect and regrade them; the kernels are then cleaned, packed in cardboard or tin containers, and sent to the respondent's warehouse where they are stored or shipped to cus- tomers. Kernels obtained from culls which are shelled by Locals and by individual growers are graded at the respondent's tables and mingled with the respondent's stock. In determining, for the purpose of this case, whether these em- ployees are "agricultural laborers" within the meaning of Section 2 (3) of the Act, and therefore excluded from the operation of the Act,10 we consider especially the following facts. The respondent is a federation of walnut packing house associa- tions engaged not in farming, but in the commercial enterprise of marketing walnuts; the respondent takes no hand in the growing of the crop. The individual grower relinquishes title to his crop upon its delivery to the packing association. The subsequent marketing of the crop by the respondent is an enterprise entirely distinct from farming, an enterprise over which the individual grower has no direct control and in which he has no direct interest. The employees of the respondent in its processing plants have no contact with the grower or with the producing farms. Their operations are per- formed in a plant wholly owned and operated by the respondent and located within the City of Los Angeles. Their duties, like those of workers in industrial mass production plants, are highly specialized. Each employee has one task to perform which consti- tutes but one step in the total operation of processing the nut. The work of the crackers and graders is coordinated with the operation of the cracking machines and the grading belts. We conclude that under these circumstances the shelling operations of the respondent are industrial, not agricultural, in nature, and that they are incidental to the commercial enterprise of marketing the crop. We find that the employees of the respondent are not "agri- cultural laborers"- within the meaning of the Act.11 10 Section 2 (3) of the Act states that the definition of the word "employee" as used in the Act "shall not include any individual employed as an agricultural laborer . . . u we have held that packing-shed workers handling perishable commodities are not exempt from the operation of the Act. Cf. Matter of American Fruit Growers Inc., et al. and Fruit & Vegetable Workers Sub-Local of #191, U. C. A. P. A. W. A., C. I. 0., 10 N. L. R. B. 316 ; Matter of North Whittier Heights Citrus Association and Citrus Packing House Workers Local No. 21091, 10 N. L. R. B. 1269; Matter of George G. Averill, et al. and Fresh Fruit & Vegetable Workers Union, Local 78, C. 1. 0., 13 N. L. It. B. 411 ; Matter of'G+rower-Shipper Vegetable Association of Central California, et al. and Fruit and Vege- table Workers Union of California, No. 18211, 15 N. L. R. B, 322. We consider the CALIFORNIA WALNUT GROWERS ASSOCIATION 501 M. THE ORGANIZATIONS INVOLVED Walnut Workers Union, Local 92 of United Cannery, Agricul- tural, Packing and Allied Workers of America, is a labor organiza- tion affiliated with the Congress of Industrial Organizations, ap- parently admitting to its membership all women employees of the respondent in the classifications of grader and picker in its Los Angeles Shelling Plants Nos. 1 and 2, except clerical and office workers and employees with the power to hire, discharge, or make recommendations relative to employment. California Walnut Growers Employees Association is an unaffil- iated labor organization admitting to its membership all employees of the respondent at its Los Angeles Shelling Plants Nos. 1 and 2. IV. THE UNFAIR LABOR PRACTICES A. Domination of the Employees Association 1. The formation and growth of the two unions During the summer of 1937 the American Federation of Labor, herein called the A. F. of L., unsuccessfully attempted to organize the shelling plant employees of the respondent. The extent of this activity does not appear from the record. That it attracted the atten- tion of the respondent is shown by the fact that Cowan, the assistant sales manager in charge of shelling operations, spoke to certain em- ployees concerning union activity during July or August of that year. Cowan testified that he spoke cautiously, that "there was very little talking that [he] did about unions, that is, any unions, for the reasons that [he] also read the Act." The Committee for Industrial Organization, herein called the C. I. 0., began organizational activities in the plants early in Sep- tember. On the evening of September 7 both the A. F. of L. and the C. I. O. held mass meetings for plant employees. The A. F. of L. gathering aroused little interest and the A. F. of L. organizer found it impossible to secure the signatures of enough prospective members to warrant the organization of a local. The C. I. O. meeting, on the other hand, was well attended and the proposal of the organizer that a C. I. O. local be formed was well received. The group voted to apply for a charter. A campaign for membership was immedi- ately undertaken, and interest in the organization grew so rapidly that the first rally of the new group held on September 9, 2 days after its initial meeting, was attended by between 300 and 400 plant employees. About the middle of September the new organization definition of agricultural labor contained in the recently passed amendments to the Social 'Security Act (Public No. 379, 76th Congress , 1st Session, Chapter 666 , Section 209 (1) (4)) inapplicable to the National Labor Relations Act. 502 DECISIONS OF NATIONAL LABOR RELATIONS BOARD was granted a certificate of affiliation by the United Cannery, Agri- cultural, Packing and Allied Workers of America (a C. I. O. affili- ate) in which it was designated as Walnut Workers Union, Local 92 of that organization. The organizational activity of the C. I. O. and the rapid growth of its new local did not go unchallenged. Early in September 1937 several shelling-plant employees requested Clyde Thomas, the attor- ney representing the Intervenor, to aid them in the formation of an "inside" union. Thomas referred them to Jack Powell, an attorney of his acquaintance, and Powell agreed to assist them. Petitions designating certain individuals as exclusive bargaining agents for the signer and containing an agreement that the signer would "be bound by the bylaws and articles of incorporation of the corporation if any" were immediately prepared and circulated in the plant. Headquar- ters for the prospective organization were established in a warehouse across the street from Plant No. 1. On the morning of September 10, the morning following the first large and successful rally of the Walnut Workers Union, a number of employees of the respondent, interchangeably designated as "fore- ladies" and "supervisors," 12 entered actively into the membership drive of the proposed "inside" organization. During the day these "supervisors" informed the employees that a meeting was to be held immediately after working hours in the warehouse across the street from Plant No. 1 and requested that they attend it. Some of the "supervisors" added to these instructions the information that the purpose of the meeting was to organize a "company" or "house" union and the advice that it would be all right for the employees to "sign up" for membership in it. A number of employees testi- fied that they experienced their first contact with the Employees Association in obeying these instructions. At the meeting thus ad- vertised, the employees who attended listened to a bitter denuncia- tion of the C. I. O. by Powell and an explanation of the advantages of a union limited in membership to the respondent's employees. Under Powell's leadership, the group decided to form an "inside" organization to be known as the California Walnut Growers Employ- ees Association, and the leaders announced the names of officers. On September 20 the organization adopted a constitution and bylaws which Powell had drafted and which he presented for their consid- eration. Membership lists were compiled by members of the organ- ization who wrote down upon sheets of paper the names of those em- ployees who indicated orally at the organization meetings or at other times their desire to be members of the new union. The period be- tween September 10 and October 4 was marked by intensive and un- 12 The term "supervisor " and the term "forelady" are used indiscriminately by the respondent to refer to employees charged with the supervision of the pickers' tables. CALIFORNIA WALNUT GROWERS ASSOCIATION 503 restricted membership drives by both organizations. However, the Employees Association had the advantage of the active aid of fore- ladies. These foreladies were tireless in their efforts during working hours to persuade individual members of the Walnut Workers Union to change their union affiliation. Specific instances of this solicita- tion appear in the record. Alice Stupin, vice president of the Wal- nut Workers and an employee of 14 years' experience with the re- spondent was told by her supervisor that she had "lost her good name with the company" because of her activity in behalf of the Walnut Workers Union ; and was urged by a second supervisor to lead her coworkers into the Employees Association. Another em- ployee was informed by a supervisor that if the C. I. O. should "win" in the plant, the respondent would close the plant and hire Japanese who would work in other factories. A third was asked by the head forelady how long she intended to wear her C. I. O. button. Litera- ture denouncing the C. I. O. was distributed both in and outside the plant. Hostility between the two groups had become so acute by September 20 that Cowan, the assistant sales manager, called the police to forestall a riot. The respondent was fully aware of the general union activity in the plant. Stevens, the superintendent of the two plants, was informed by his two head foremen that the union activity of the employees was causing a decrease in production. Stevens relayed this information to Webber, the secretary of the respondent, and to Cowan and was instructed by them to forbid his foremen to engage in such activity. Stevens. warned his foremen not to talk of union matters with the employees, but did not interfere in any way with the activity of the supervisors. The respondent admitted the partisan character of such activity on the part of the supervisors but disclaimed responsibility for it on the ground that these employees were in reality not supervisors but merely inspectors, enjoying all the rights of ordinary employees to join and assist labor organizations. The respondent contended that by the issuing of orders to the foremen to refrain from union activity it fully discharged its duty under the Act to maintain a policy of strict neu- trality toward both unions. We cannot agree with this contention. The record shows that the supervisors, of whom there are approxi- mately 23 in the 2 plants, are responsible for the maintenance of the proper standards of work among the pickers. One supervisor and usually one checker, who may be described as an assistant supervisor, are assigned to each table of approximately 56 pickers. It is their duty to see that the bins over the tables are filled with nuts, to carry the pickers' filled cups 'of kernels to the end of the tables, to empty and weigh the contents and to return the cups to the pickers. They 233020-41-vof. 13-33 504 DECISIONS OF NATIONAL LABOR RELATIONS BOARD are charged with the primary duty of maintaining order and initiate disciplinary action by reporting infractions of plant rules to the head forelady or to her superiors. Testimony of employees and of the head foreman of Plant No. 1 shows that the employees felt that the foreladies represented the interests of the management. The respond- ent further contended that the supervisors cannot be considered mem- bers of their supervisory staff because they are not empowered to hire or discharge employees or to make recommendations as to dismissals. We cannot believe that a superintendent and 6 foremen exercise exclusive supervision over 1000 pickers and graders and pass upon their merits without the aid or advice of those in the intermediate positions.13 In any event the respondent, by designating the indi- viduals in question as supervisors and foreladies, has represented them to its employees as persons of supervisory rank. The respondent contends in its brief that union activity, threats, and coercion on the part of any forelady could not constitute an unfair labor practice on the part of the respondent because said foreladies were at the time of such activity members of the Employees Associa- tion. We have considered this contention elsewhere and found it to be without merit. We said in Matter of Ward Baking Company and Committee for Industrial Organization,14 We are of the opinion, moreover, that the respondent is not relieved from responsibility for the union activity of its super- visory employees by virtue of membership of such employees in a labor organization. A corporate employer in its relations to its ordinary employees necessarily acts through and must be held responsible for the acts of its supervisory employees. Where such employees actively interfere with one labor organization and promote another, the employer itself must be deemed to have engaged in such interference and promotion. We find that the foreladies and supervisors are supervisory em- ployees of the respondent and that their activities in behalf of the Employees Association, hereinabove discussed, are attributable to the respondent. 13 See Matter of M. Lowenstein & Sons, Inc . and Bookkeepers'. Stenographers' and Accountants' Union, Local No. 16, United Office and Professional Workers of America, C. I. 0.; M. Lowenstein & Sons, Inc. and Textile Workers' Organizing Committee, Local No. 65, C. I. 0.; M. Lowenstein & Sons, Inc. and United Wholesale Employees of N. Y., 6 N. L. R. B. 216 at 225; Matter of American Manufacturing Company et al. and Textile Workers Organizing Committee, C. I. 0., 5 N. L. R. B. 443, 106 F. (2d) 61, C. C. A. 2). 14 8 N. L. R. B. 558 at 565. See also Matter of Tennessee Copper Company and A. F. of L. Federal Union No. 21164, 9 N. L. R. B. 117 at 119 ; Matter of Mount Vernon Car Manu- facturing Company et al. and Local Lodge 1756, Amalgamated Association of Iron, Steel & Tin Workers of North America , affiliated with the Committee for Industrial Organization, 11 N. L. It. B. 500. CALIFORNIA WALNUT GROWERS ASSOCIATION 505 2. The demands for recognition as bargaining agent and the closed-shop contract On September 21, 1937, the board of directors and attorney of the Employees Association, in a conference with Webber, Cowan, and the attorney for the respondent, asserted that it represented a majority of the respondent's employees, requested recognition as exclusive col- lective bargaining agent for the plants, and presented a demand for a closed shop and certain demands concerning wages and other working conditions. Webber stated that before dealing with the organization it would be necessary for him to ascertain the accuracy of its claims of representation. Upon discovering that no proof of its claims had been brought to the conference, Webber took the initiative in seeking such proof by instructing the auditor of the respondent "to contact the (Employees Association) in some way, get a list to satisfy him- self" that the Employees Association did in fact represent a majority of the plant employees. Immediately following the conference with the Employees Asso- ciation, Webber conferred with a committee representing the Walnut Workers Union. That organization claimed that it represented about 800 of the approximately 1250 plant employees and offered to produce its records for the respondent's inspection. It demanded that it be recognized as the collective bargaining agent for its members and presented for the respondent's consideration a contract embodying such recognition. Webber told the committee that he could not and would not agree to certain provisions of the contract without instructions from the respondent's board of directors. He also commented that there were evidently duplications in the membership rolls of the Wal- nut Workers Union and the Employees Association and promised to present the matter of recognition to the board of directors at its next meeting, scheduled for September 28. On the afternoon of the day of the two conferences, the auditor of the respondent was handed the "sign-up" lists of the Employees Asso- ciation and requested by Webber to check the names thereon against the respondent's pay roll. Although the lists did not bear the signa- tures of individual employees and contained no internal evidence of their authenticity, neither Webber nor the auditor inquired into the methods of their compilation.15 Webber knew at that time of the rival membership claims of the Walnut Workers Union, yet he did not ask to see the records of the Walnut Workers Union nor did he make any attempt to ascertain how many duplications occurred in the membership rolls of the two organizations. He testified that `.`we ss As has been explained above in Section III, A 1, these lists were compiled by members of the Employees Association , who wrote thereon the names of the employees who orally expressed a wish to become members of the organization. 506 DECISIONS OF NATIONAL LABOR RELATIONS BOARD naturally made no investigation because we had no list of members." Inasmuch as Webber himself initiated the investigation of the Em- ployees Association's membership claims, we regard both his actions and his words in this connection as indicative that he favored that organization over the Walnut Workers Union. On the following morning, September 22, the auditor informed Webber that the Employees Association lists contained the names of 855 of the respondent's 1238 employees. Webber immediately recog- nized the Employees Association as exclusive bargaining representative for both plants and notified both unions of his action. Negotiations with the Employees Association were promptly entered into and re- sulted in substantial agreement by September 28 on all the organiza- tion's demands except its demand for a closed shop. Webber agreed to present the demand for a closed shop to the board of directors. The executive committee of the respondent's board of directors, composed of its president and its two vice presidents, and augmented upon this occasion by the general manager and the director repre- senting the largest Local, met on September 28. Webber informed this group that an investigation of the claims of the Employees As- sociation had shown that this organization represented the majority of the resondent's employees; that consequently he had recognized the organization as the exclusive collective bargaining representative for the shelling plants and had entered into negotiations with it for a col- lective bargaining agreement; that since the negotiation committee of the association insisted upon its demand for a closed-shop provision in the agreement, a demand to which he had refused to accede, he was presenting the problem of a closed shop to the committee for its con- sideration and for its advice and instruction. It is not clear from the record to what extent Webber informed the committee of the claims of the Walnut Workers Union. He apparently mentioned the charge that had been filed with the Regional Director and according to a member of the committee, stated that "there was some C. I. O. mem- bership organization he thought in the organization but he didn't know how much." He did not, however, inform the committee that the Walnut Workers Union had filed a petition with the Regional Director, that the Walnut Workers Union sought recognition as bar- gaining representative for its members only or that the contract which it had presented for the respondent's consideration did not contain a closed-shop provision. It is clear from the record that the committee neither discussed nor investigated either the claims or the requests of the Walnut Workers Union. Several days after the committee had adjourned, Webber was informed by one of its members that a major- ity of the committee had decided that it would be expedient to grant a CALIFORNIA WALNUT GROWERS ASSOCIATION 507 modified closed shop to the Employees Association and was instructed to sign a contract embodying such a provision. 1G News that the Employees Association had been granted a closed shop spread through the plants on October 1. The supervisors who had been so zealous in recruiting members for the Employees Associa- tion now told the employees at their tables that it would be necessary to join the Employees Association in order to retain their jobs. Much of this activity occurred between October 1 and 4, prior to the actual signing of the contract. The employees were officially notified of the respondent's recognition of the Employees Association as exclusive collective bargaining agent for the plants and of the closed-shop pro- vision of the contract between this organization and the respondent by notices posted on the plant bulletin board on October 4 and by slips enclosed in the pay envelopes on October 9. The respondent stated in these notices that it would be necessary for all employees who wished to retain their employment to become members of the Employees Association by October 11 in Plant No. 2 and by October 12 in Plant No. 1. All but eight employees joined the Employees Association, many simultaneously retaining their membership in the Walnut Workers Union. We find that by the action of its supervisors in working actively in behalf of the Employees Association, by its refusal and failure to con- sider the membership claims of the Walnut Workers Union while at the same time accepting without adequate proof similar claims of the Employees Association, by its recognition of the Employees Associa- tion as exclusive bargaining agent under the conditions herein set forth, and by its execution of a closed-shop contract with this organ- ization the respondent dominated and interfered with the formation and administration of the Employees Association, and contributed 19 Section II of the contract between the respondent and the Employees Association contains the following qualified closed-shop provisions : Every employee at Los Angeles Shelling Plants Nos. One and Two of California Walnut Growers Association shall be a member of California Walnut Growers Em- ployees Association , subject to the following qualifications : (a) When such employee has complied with the by -laws as to membership in said Employees Association or has made application to said Employees Association for membership , and within twenty-four hours after employment becomes a member thereof. (b) Employees now on the pay-roll shall have until the close of business October 11, 1937 in Plant No . 2 and until the close of business October 12 , 1937 in Plant No. 1 to become members of said Employees Association. (c) The Employer may, for any pay-roll week, employ workers not to exceed ten per-cent ( 10%) of the entire pay-roll at said Los Angeles Shelling Plants Nos. One and Two, who are not members of the Employees Association. Webber testified that clause ( c) above was introduced at his insistence in order to avoid controversy concerning the union membership of employees of the respondent whose work centers in but who are not employees of the shelling plants , such as the paymaster, watchmen , and clerks who make up the pay rolls and keep the plant records. 508 DECISIONS OF NATIONAL LABOR RELATIONS BOARD support to it, thereby interfering with, restraining, and coercing its employees in the exercise of rights guaranteed under Section 7 of the Act. We find that the Employees Association is a labor organization which has been assisted by the respondent's unfair labor practices. Since the contract of October 4 was entered into with an organization so assisted, it is not within the proviso of Section 8 (3) 17 of the Act and is, therefore, clearly invalid.'8 B. Discrimination in regard to hire and tenure or employment 1. The events of October 1937 Eight women employees in the picking and grading departments refused to become members of the Employees Association. Of these eight, six were excluded from the plant on the morning of October 13, and the remaining two on the morning of October 14. 19 All six of the employees who were excluded on October 13 testified that Stevens told them individually that they could not enter the plant. Three of them testified further that he urged them to join the Employees Association in order that they might be permitted to work. Stevens denied speaking to any of these employees. However, we are satisfied, and we find, that their testimony is substantially correct. During the afternoon of October 13 several of these employees, together with Dorothy Ray, the organizer for the Walnut Workers Union,. sought a conference with Webber. Webber refused to discuss labor problems with Ray but informed the employees that they had not been dis- charged. He called their attention to the notices which they had been given of the closed-shop agreement between the respondent and the Employees Association and expressed the hope that they would take the steps which they knew to be necessary in order to retain their em- 17 The proviso to Section 8 (3) herein referred to is as follows : . . . nothing in this Act . . . shall preclude an employer from making an agreement with a labor organization (not established , maintained , or assisted by any action defined in this Act as an unfair labor practice ) to require as a condition of employ- ment membership therein, if such labor organization is the representative of the employees, as provided in section 9 (a), in the appropriate collective bargaining unit covered by such agreement when made. 18 See Matter of National Electric Products Corporation and United Electrical and Radio Workers of America, Local No. 609, 3 N. L. R. B. 475; Matter of Lenoa, Shoe Company, Inc. and United Shoe Workers of ,America, affiliated with the Committee for Industrial Organi- zation, 4 N . L. R. B. 372; Matter of Missouri-Arkansas Coach Lines, Inc. and The Brother- hood of Railroad Trainmen, 7 N. L. R. B. 186; Matter of Jefferson Electric Company and United Electrical and Radio Workers of America, 8 N. L. R. B. 284. 19 Lucile King, Helen Metkovich , Eva Dzida, Pauline lietkovich , Alice Stupin , and Sara Rivera were excluded from Plant No. 1 on October 13. Angela Cobas , who was absent on October 13 , was excluded from Plant No. 1 on October 14, and Nancy I'einado , who was absent both October 12 and 13, was excluded from Plant No . 2 on October 14. CALIFORNIA WALNUT GROWERS ASSOCIATION 509 ployment. The two employees who were excluded from the plants on October 4 were refused admission by the doormen on the ground that they were not members of the Employees Association. We find that the eight employees named in the complaint were excluded from the plants by the respondent on October 13 and 14, 1937, because they refused to join the Employees Association. We find that by this action the respondent discriminated in regard to their hire and tenure of employment, discouraged membership in the Walnut Workers Union, and encouraged membership in the Em- ployees Association thereby interfering with, coercing, and restrain- ing its employees in the exercise of rights guaranteed in Section 7 of the Act. 2. The events of March 1938 On March 14, 1938, during the course of the hearing, the respond- ent, the Walnut Workers Union, and the Employees Association entered into a stipulation providing, inter alia, for the reinstate- ment of the eight employees named above and for an election by secret ballot to determine the bargaining agent of the employees. Although it was agreed that the stipulation would become effective only upon the Board's approval, the respondent reinstated seven of the eight employees without waiting for the Board's action on the stipulation.20 The seven who returned to the plant were not made welcome. They were immediately made to feel the hostility not only of fellow employee members of the Employees Association but of those su- pervisors who had formerly been such zealous solicitors for this organization. A supervisor informed Alice Stupin that if the Walnut Workers Union won the election for bargaining agent, scheduled for March 21, the respondent would close the plant and all the employees would be out of employment. An enthusiastic member of the Em- ployees Association threatened to "beat her up." The Board refused to approve the proposed stipulation and on March 21 so informed the respondent and the two unions. On the evening of March 21 a supervisor of the respondent remarked in the hearing of a number of girls that "the girls [the 7 employees rein- stated] are going to have the surprise of their lives tomorrow morn- ing. They are going down for a downfall." This announcement, frightened Stupin and her six companions, and they met the next morning before work and proceeded to the plant in a group. As they approached the plant they were confronted by approximately 40 20 The eighth , Angela Cobas , whom the respondent believed to be physically unable to work was advised not to apply for reinstatement at that time. 510 DECISIONS OF NATIONAL LABOR RELATIONS BOARD employees, members of the Employees Association, who met them at the foot of the ramp which led into the building and barred their further progress. Ten employees who were members of both unions but who sympathized with the Walnut Workers Union appeared at the top of the ramp and prepared to aid them. The supervisor who had announced a "surprise" for the reinstated employees on the pre- ceding evening joined the ranks of the Employees Association mem- bers and a fight ensued during which the Employees Association members attempted to push the members of the Walnut Workers Union off the ramp and forced the seven reinstated employees to withdraw from the plant property. A member of the Walnut Work- ers Union was injured. Certain of the respondent's officers and supervisory employees, including Cowan and Stevens, watched the fray from the windows of the plant without making any effort what- ever to stop it. The respondent's attorney was requested by the attorney for the Board to summon the police to restore order. He refused to do so. The respondent contended both at the time of the skirmish and at the time of the hearing that the disorder was a direct consequence of the Board's disapproval of the stipulation of March 14 pursuant to the terms of which the members of the Walnut Workers were rein- stated and that it was a. consequence for which the Board was alone responsible. We find this contention to be without merit. The re- spondent exercised control over its plant and over the conduct of its employees while in it. It was under the affirmative duty to insure their safety. By failing and refusing to perform this duty and by permitting at least one of its supervisors to take part in the skirmish on the side of the Employees Association, it allied itself with that organization and encouraged the forcible ejection from the property of members of a rival organization.21 The respondent did not discipline either the supervisor or the em- ployees who left their work without permission to take part in the skirmish. The employee leader in the assault was shortly promoted to the position of supervisor. Although the record does not support the inference that this promotion was a reward for such leadership, it convinces us that the respondent condoned the leader's action. On the following day, March 23, the respondent sent letters to the eight 22 employees named in the complaint that they should not report for work any more. The reason given them for this order was the fact that the election provided for in the stipulation of March 14 had not been held as scheduled. However, in view of our finding $' See Matter of General Motors Corporation and Delco -Remy Corporation and Interna- tional Union United Automobile workers of America, Local 146, 14 N. L. R. B. 113; Matter of General Shoe Corporation and Georgia Federation of Labor, 5 N. L. R. B. 1005, 1016. 22 Five of these letters were delivered. CALIFORNIA WALNUT GROWERS ASSOCIATION 511 that the exclusion of these employees in October 1937 was an unfair labor practice , we find that they retained their employee status. This status was not affected by the parties' failure to act in accordance with the terms of the stipulation. We find that by permitting its employees forcibly to eject the seven employees whom it had reinstated , and thereafter terminating their employment , the respondent discriminated in regard to the hire and tenure of employment, discouraged membership in the Walnut Work- ers Union, and encouraged membership in the Employees Associa- tion. Thereby, and by the actions and statements of its supervisors above set forth, the respondent interfered with , restrained, and coerced its employees in the exercise of the rights guaranteed them in Section 7 of the Act. As regards the seven employees in question, their reinstatement constituted a brief interruption in the respondent 's discriminatory refusal to employ them . Its discrimination against Cobas , however, was uninterrupted. Prior to or at the time of their exclusion from the plants in Octo- ber the weekly earnings of the eight employees, who , with the ex- ception of Angela Cobas, were working on a piece-rate basis, were as follows : Lucille King $17 ; Eva Dzida $23; Pauline Metkovich $23; Alice Stupin $24 to $27 ; Sara Rivera $16 to $17; Helen Met- kovich $23 to $25; Angela Cobas $16 ; Nancy Peinado $18. At the time of the hearing, none of these employees had obtained employ- ment elsewhere. Angela Cobas, although physically able to work at the time of the discrimination against her in October 1937, was physically unable to work because of pregnancy for an undetermined period between October 1937 and May 16, 1938. V. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE We find that the activities of the respondent set forth in Section III above, occurring in connection with the operations of the re- spondent described in Section I above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. VI. THE REMEDY Having found that the, respondent has engaged in certain unfair labor practices, we shall order it to cease and desist from further engaging in such practices. We shall further order it to take certain affirmative action which we believe necessary to effectuate the policies of the Act. 512 DECISIONS OF NATIONAL LABOR RELATIONS BOARD We have found that the respondent sponsored the formation of the Employees Association, interfered with its administration, and con- tributed support to it. By reason of the respondent's acts, the Employees Association cannot serve as the freely chosen represent- ative of the employees. In order to remedy the respondent's unfair labor practices we shall require the respondent to withdraw all recognition from the Employees Association and completely dis- establish it as the bargaining representative of any of its employees. We shall further order the respondent not to give effect to its con- tract of October 4, 1937, with the Employees Association, or to any extension, modification, or renewal thereof. We have found that the respondent discriminatorily discharged Lucille King, Helen Metkovich, Eva Dzida, Pauline Metkovich, Sara Rivera, and Alice Stupin on October 13, 1937, that it discrimi- natorily discharged Nancy Peinado and Angela Cobas on October 14, 1937, and that it again discriminatorily discharged Lucille King, Helen Metkovich, Eva Dzida, Pauline Metkovich, Sara Rivera, Alice Stupin, and Nancy Peinado after brief reinstatement in March 1938. We shall order the respondent to offer to the eight above-named in- dividuals, immediate and full reinstatement to their former or sub- stantially equivalent' positions, without prejudice to their seniority and other rights and privileges, and to make them whole for any loss of pay they have suffered by reason of the discrimination against them by payment to them of a sum of money equal to the amount each would normally have earned 23 from the date of the respondent's discrimination against them in October 1937 to the date of its offer of reinstatement pursuant to the terms of our order, less the net earnings 24 of each during said period. VII. THE QUESTION CONCERNING REPRESENTATION On September 21, 1937, representatives of the Walnut Workers Union claimed that it represented a majority of the employees in the respondent's shelling plants and requested that the respondent recog- nize it as bargaining representative for its members. The respond- 23 The period of Cobas' disability shall be excluded in computing the amount Cobas would normally have earned, and her earnings elsewhere , if any, during the period of her dis- ability shall be excluded from the computation of her "net earnings " as herein defined. (See footnote 24 infra.) 24 By "net earnings " is meant earnings less expenses, such as for transportation, room, and board, incurred by an employee in connection with obtaining work and working else- where than for the respondent , which would not have been incurred but for his unlawful discharge or refusal of employment and the consequent necessity of his seeking employ- ment elsewhere. See Matter of Crossett Lumber Company and United Brotherhood of Carpenters and Joiners of America, Lumber and Sawmill Workers Union, Local 2590, 8 N. L. R. B. 440. Monies received for work performed upon Federal, State, county, mu- nicipal , 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. CALIFORNIA WALNUT GROWERS ASSOCIATION 513 ent refused this request and on September 22, 1937, announced that it had recognized the Employees Association as the exclusive collective bargaining representative of all its employees. In its petition the Walnut Workers Union again claimed to represent the majority of the respondent's employees. At the hearing the respondent contested the claims of the Walnut Workers Union. We find that a question has arisen concerning the representation of employees of the respondent. VIII. THE EFFECT OF THE QUESTION CONCERNING REPRESENTATION UPON COMMERCE We find that the question concerning representation which has arisen, occurring in connection with operations of the respondent described in Section I above, has a close, intimate, and substantial relation to trade, traffic, and commerce among the several States and tends to lead to labor disputes burdening and obstructing com- merce and the free flow of commerce. IX. THE APPROPRIATE UNIT In its petition the Walnut Workers Union alleged as an appro- priate bargaining unit "production and plant employees in two Los Angeles plants-about 1200." At the hearing the attorney for the Walnut Workers Union amended the petition by interlineation to exclude from the unit originally requested all male employees and all supervisory, clerical, and office employees. The respondent, in its brief, states that it conceives the appropriate unit to consist of all shelling plant employees except the superintendent and six fore- men. Since we have found the Employees Association to be com- pany dominated and have ordered that it be disestablished, we shall not consider its contentions concerning the appropriate unit. The activities of the respondent represent successive steps in the continuous operations of shelling walnuts for market. These steps are comparatively few in number and highly interdependent. A ces- sation of operations in one of the respondent's departments would quickly result in the cessation of operations in other departments. The policies of the respondent are administered in both plants by a single individual, a superintendent having jurisdiction over the employees of all departments. A community of interest exists not only among the employees of various departments in the same plant but also, by reason of frequent transfers of employees from one plant to another, between the employees of the two plants. Under these circumstances, a bargaining unit comprising the employees of both shelling plants,25 will best effectuate the policies of the Act. 2e The bag-printing plant, located on the seventh floor of one of the shelling-plant build- ings, is not a part of the shelling plant. 514 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Walnut Workers Union requests the exclusion from the unit of all male employees on the ground that they are ineligible for mem- bership in its organization. However, in view of the fact that the Walnut Workers Union apparently desires the inclusion of female employees, such as laundry workers, who are likewise ineligible to membership in the organization, we find the reasoning of the Union in this respect unacceptable. The entire personnel of the cracking department, and one-third of the packing-department employees are men. We consider them to be production employees and shall include them in the unit. Approximately 65 plant employees, including the janitor, office boy, watchmen, and handlers are men. They have not requested a separate unit and their exclusion would leave them with- out collective bargaining representation. Their sex affords no valid basis for their exclusion. We shall include them in the unit. The Walnut Workers Union further requests the exclusion from the unit of supervisory, clerical, and office workers. In accordance with our usual practice, we shall exclude such employees from the unit. We have found that the so-called "supervisors" or "foreladies" are supervisory employees and shall accordingly exclude them. The Wal- nut Workers Union contends that checkers and shell girls frequently perform the work and exercise the duties of supervisors and should be excluded from the unit as supervisory employees. It appears from the record that one checker is assigned to each pickers' table. Although less experienced, she has substantially the same duties and the same power to initiate disciplinary action as the foreladies, whom we have found to be supervisory employees. We shall exclude checkers from the unit. The shell girls are required to collect and examine the shells discarded by the pickers, in order that they may save any edible nut meats still adhering to them. There is no evi- dence that the shell girls at any time assume the responsibility of the supervisors for the discipline or for the general welfare of their tables. Qualifications for employment for pickers, graders, and shell girls are the same. We are of the opinion that the shell girls are not supervisors. We shall include them in the unit. We find that the employees of the respondent at its Los Angeles Shelling Plants Nos. 1 and 2, excluding supervisory, clerical, and office employees, constitute a unit appropriate for the purpose of collective bargaining, and that said unit will insure to employees of the respondent the full benefit of their right to self-organization and to collective bargaining and otherwise effectuate the policies of the Act. X. THE DETERMINATION OF REPRESENTATIVES At the time of the hearing, the respondent employed approximately 1200 employees in the unit which we have found to be appropriate. CALIFORNIA WALNUT GROWERS ASSOCIATION 515 The Walnut Workers Union and the Employees Association sub- mitted evidence in support of their respective claims of representa- tion. Since we have found the Employees Association to be company dominated and shall order that the respondent disestablish it, we need not consider the proof offered by it. The nature and extent of the proof offered by the Walnut Workers Union is such, however, that the question concerning representation which has arisen can best be resolved by an election by secret ballot. The name of the Em- ployees Association will not be placed upon the ballot. Since the respondent has, by engaging in various unfair labor practices, inter- fered with the exercise by its employees of the rights guaranteed them by the Act, we shall not now set the date for the election. We shall hold the election, however, upon receipt of information from the Regional Director that the circumstances permit a free choice of representatives unaffected by the respondent's unlawful acts. We shall, at the time we specify the date on which the election is to be held, also specify the date on the basis of which eligibility to vote in the election shall be determined. 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. Walnut Workers Union, Local 92 of United Cannery, Agricul- tural, Packing and Allied Workers of America and California Wal- nut Growers Employees Association are labor organizations within the meaning of Section 2 (5) of the Act. 2. By dominating and interfering with the formation and adminis- tration of the California Walnut Growers Employees Association and by contributing support thereto, the respondent has engaged in and is engaging in unfair labor practices, within the meaning of Section 8 (2) of the Act. 3. By discriminating in regard to the hire and tenure of employ- ment of Lucille King, Helen Metkovich, Eva Dzida, Pauline Metko- vich, Sara Rivera, Alice Stupin, Nancy Peinado, and Angela Cobas, thereby discouraging membership in the Walnut Workers Union, Local 92, and encouraging membership in the California Walnut Growers Employees Association, the respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (3) of the Act. 4. By interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed by Section 7 of the Act, the respondent has engaged and is engaging in unfair labor practices, within the meaning of Section 8 (1) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices within the meaning of Section 2 (6) and (7) of the Act. 516 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 6. A question affecting commerce has arisen concerning the repre- sentation of employees of California Walnut Growers Association, Los Angeles, California, within the meaning of Section 9 (c) and of Section 2 (6) and (7) of the Act. 7. The employees of the respondent at its Los Angeles Shelling Plants Nos. 1 and 2, excluding supervisory, clerical, and office em- ployees, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act. ORDER Upon the basis of the above findings of fact and conclusions of law, and pursuant to Section 10 (c) of the National Labor Relations Act, the National Labor Relations Board hereby orders that the respondent, California Walnut Growers Association, Los Angeles, California, and its officers, agents, successors, and assigns, shall : 1. Cease and desist from : (a) In any manner dominating, interfering with the administra- tion of, or contributing support to California Walnut Growers Em- ployees Association or any other labor organization of its employees; (b) Discouraging membership in Walnut Workers Union, Local 92 of Cannery, Agricultural, Packing and Allied Workers of Amer- ica, or encouraging membership in California Walnut Growers Em- ployees Association or discouraging or encouraging membership in any other labor organization of its employees, by discriminating in regard to hire and tenure of employment or any term or condition of employment; (c) Giving effect to its contract of October 4, 1937, with the Cali- fornia Walnut Growers Employees Association, or to any extension, modification, or renewal thereof; (d) In any other manner interfering with, restraining, or coerc- ing its employees in the exercise of the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in con- certed activities for the purposes of collective bargaining or other mutual aid and protection as guaranteed in Section 7 of the Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Withdraw all recognition from California Walnut Growers Employees Association as the representative of any• of its employees for the purpose of dealing with it in respect to grievances, labor dis- putes, wages, rates of pay, hours of employment, and other conditions of employment, and completely disestablish said organization as such representative; CALIFORNIA WALNUT GROWERS ASSOCIATION 517 (b) Offer to Lucille King, Helen Metkovich, Eva Dzida, Pauline Metkovich, Sara Rivera, Alice Stupin, Nancy Peinado, and Angela Cobas, and to each of them, immediate and full reinstatement to their former or substantially equivalent positions without prejudice to their seniority and other rights and privileges; and make-them whole for any loss of pay they may have suffered by reason of the respondent's discrimination against them by payment to each of them of a sum of money equal to that which she would normally have earned as wages from the date of the respondent's discrimination against her in October 1937 26 to the date of the respondent's offer of reinstatement pursuant to this Order, less her net earnings 27 during said period, deducting, however, from the amount otherwise due each of saidt employees monies received by such employees during said period for work performed upon Federal, State, county, munici- pal, and other work-relief projects and paying over the amount so deducted to the appropriate fiscal agency of the Federal, State, county, municipal, or other government or governments which sup- plied the funds for said relief projects; (c) Post immediately, and keep posted for a period of at least sixty (60) consecutive days from the date of posting, notices in con- spicuous places throughout the plants stating that the respondent will cease and desist in the manner set forth in 1 (a), (b), (c), and (d), that it will take the affirmative action set forth in 2 (a) and (b) of this Order; and that the respondent's employees are free to become and remain members of the Walnut Workers Union, Local 92 of United Cannery, Agricultural, Packing and Allied Workers of America and that the respondent will not discriminate against any employee be- cause of membership in that organization; (d) Notify the Regional Director for the Twenty-first Region in writing within ten (10) days from the date of this Order what steps the respondent has taken to comply herewith. DIRECTION OF ELECTION By virtue of and pursuant to the power vested in the National Labor Relations Board by' Section 9 (c) of the National Labor Rela- tions Act, 49 Stat. 449, and pursuant to Article III, Section 8, of National Labor Relations Board Rules and Regulations-Series 2, it is hereby DIRECTED that, as part of the investigation authorized by the Board to ascertain representatives for the purposes of collective bargaining 26 October 13, 1937, in the case of Lucille King , Helen Metkovich, Eva Dzida, Pauline Metkovich, Sara Rivera, and Alice Stupin;. October 14, 1937, in the case of Angela Cobas and Nancy Peinado. 27 See footnote 24, supra. 518 DECISIONS OF NATIONAL LABOR RELATIONS BOARD with California Walnut Growers Association, Los Angeles, Califor- nia, an election by secret ballot shall be conducted within such time as the Board shall hereafter direct, under the direction and super- vision of the Regional Director for the Twenty-first Region, acting in this matter as agent for the National Labor Relations Board, and subject to Article III, Section 9, of said Rules and Regulations, among the employees in Los Angeles Shelling Plants Nos. 1 and 2 employed by said company during a pay-roll period which we shall in the future specify, including employees who did not work during such pay-roll period because they were ill or on vacation and em- ployees who were temporarily laid off, but excluding ' supervisory, clerical, and office employees, to determine whether or not they desire to be represented by Walnut Workers Union, Local 92 of United Can- nery, Agricultural, Packing and Allied Workers of America for the purposes of collective bargaining. MR. WILLIAM M. LEISERSON took no part in the consideration of the above Decision, Order, and Direction of Election.