Sierra Madre-Lamanda Citrus Association

In the Matter of SIERRA MADRE-LAMANDA CITRUS ASSOCIATION AND BENJAMIN H. BETZ, AN INDIVIDUAL DOING BUSINESS AS BETZ PACKING COMPANY and CITRUS PACKING HOUSE WORKERS UNION, LOCAL No 20766 Case No. C-1112.-Decided April 23, 1940 Citrus Fruit Packing Industry-Employee : agricultural laborer : individuals employed by cooperative packing house or plant in packing of citrus fruits not employed as agricultural laborers ; seasonal employees-Settlement Agree- ment: not given effect where unfair labor practices occurred subsequent to; findings and order based on events occurring before and after-Employer: contracting parties one of whom is vested with complete control of employment and the other who controlled places where employees worked, supplied the money for their pay, retained control over employment to extent that persons it objected to were not hired and who supervised and inspected the work are employers within the meaning of Section 2 (2) of the Act-Interference, Re- straint, and Coercion: anti-union speech ; anti -union statements ; expressed opposition to labor organization ; misrepresenting jurisdiction of the Board and purposes of the Act to employees-Discrimination: refusals to reinstate and discharges, for union activity-Regular and Substantially Equivalent Employ- ment: employee given employment elsewhere by one of the respondents found not to be-Reinstatement Ordered-Back Pay: awarded. Mr. David Sokol, for the Board. Mr. Ivan G. McDaniel, of Los Angeles, Calif., for the respondents. Mr. J. W. Schofield, of Pasadena, Calif., for the Union. Mr. Edwin L. Swope, of counsel to the Board. DECISION AND ORDER STATEMENT OF THE CASE Upon charges and amended charges duly filed by Citrus Packing House Workers Union, Local No. 20766, herein called the Union, the National Labor Relations Board, herein called the Board, by its Regional Director for the Twenty-first Region (Los Angeles, Cali- fornia), issued its complaint dated September 19, 1938, against Sierra Madre-Lamanda' Citrus Association, Pasadena, California, herein called respondent Sierra, and Benjamin H. Betz, an indi- vidual, doing business as Betz Packing Company, Monrovia, Cali- fornia, herein called respondent Betz, alleging that the respondents 23 N. L. R. B., No. 13. 143 144 DECISIONS OF NATIONAL LABOR RELATIONS BOARD had engaged in and were engaging in unfair labor practices affect- ing commerce within the meaning of Section 8 (1), (3), and (5) and Section 2 (6) and (7) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. Copies of the complaint and accompany- ing notice of hearing were duly served upon the respondents and the Union. The complaint alleged in substance: (1) that on or about May 24, 1937, and September 20, 1937, and thereafter, the respondents refused to bargain collectively with the Union as the exclusive rep- resentative of their employees in an appropriate unit; (2) that the respondents discriminated in regard to the hire or tenure of employ- ment of 15 of their employees, named in the complaint,' because of their union affiliation and organizational activity, thereby discourag- ing membership in the Union; and (3) that by these and other acts the respondents interfered with, restrained, and coerced their em- ployees in the exercise of the right to self-organization and to engage in concerted activities for mutual aid and protection. On October 1, 1938, the respondents filed a joint answer denying that they had engaged in the unfair labor practices alleged in the complaint. In addition, the respondents' answer set forth as separate and special defenses: (1) that their employees are all "agricultural laborers" within the meaning of Section 2 (3) of the Act and are therefore exempt from the jurisdiction of the Board; (2) that the respondents are not engaged in commerce within the meaning of the Act; (3) that the Board is barred by laches from proceeding with this case; and (4) "that another action is pending between the parties hereto involving some of the issues involved in these proceedings and said action has not been determined by the Board." Pursuant to the notice, a hearing was held in Los Angeles, Cali- fornia, on October 3, 4, 6, 7, 8, and 10, 1938, before Gustaf B. Erick- son, the Trial Examiner duly designated by the Board. The Board, the respondents, and the Union were represented by counsel and participated in the hearing. Full opportunity to be heard, to exam- ine and cross-examine witnesses, and to introduce evidence bearing upon the issues was afforded to all parties. During the hearing, upon motion of the Board's counsel, the Trial Examiner dismissed the allegations in the complaint that the respondents had refused to bargain collectively with the Union and that the respondents had discriminated with regard to the hire and tenure of employment of Sophie Nally and, Anna Cotter. During the course of the hearing, the Trial Examiner made other rulings 'The persons so named are as follows : Doliie Armstrong, Anna Cotter, LaVere Imray, Harold Imray, Anna Jesseman , Charles A. Lalla, Dorothy Lewis, Meretta Miller, May Mutza, Sophie Nally, John Schofield , Harold R. Siebold, Philip Somerlott, Edith Stein, and It. E. Tennery. SIERRA MADRE-LAMANDA CITRUS ASSOCIATION 145 on motions and objections to the admission of evidence. The Board has reviewed these rulings and finds that no prejudicial errors were committed. The rulings are hereby affirmed. The Trial Examiner reserved decision on certain other rulings for his Intermediate Report. After the close of the hearing the respondents filed.a brief with the Trial Examiner. On December 29, 1938, the Trial Examiner issued his Intermediate Report, copies of which were duly served on the respondents and the Union, finding that the respondents had engaged in, and-were, engaging in unfair labor practices affecting commerce within the meaning of Section 8 (1) and (3) and Section 2 (6) and (7) of the Act. He recommended that the respondents cease and desist from engaging in such unfair labor practices and take certain affirmative action to remedy the situation brought about by the un- fair labor practices found. The Trial Examiner in his Intermediate Report also made rulings on motions and objections to the admission of evidence upon which he had reserved decision during the hearing. Among these rulings was one denying certain motions made by the respondents at the commencement of the hearing to dismiss the proceedings for the same reasons given as special defenses in the answer. We affirm this ruling. The Board finds no merit in the respondents' contentions that this proceeding is barred by laches,2 and "that another action is pending between the parties hereto involving some of the issues involved. in these proceedings ,and said action has not been determined by the",Board." 3 The reasons for affirming the Trial Examiner's ruling, denying the respondents' motion to dismiss upon the grounds that all their employees are "agricultural laborers" and that they are not engaged in commerce within the meaning of the Act, are set forth below. At the commencement of the hearing, the parties stipulated that certain exhibits, concerning the jurisdiction of the Board in this case, which had been introduced in evidence by the Board in another case entitled Matter of North Whittier Heights Citrus Association and Citrus Packing House Workers Union, Local 41091,' be con- sidered a part of the record in the instant case, except that the re- spondents reserved the right to object to the admission in evidence of each exhibit as it was introduced by the Board if they believed 2 See Matter of Colorado Milling and Elevator Company and Denver Trades and Labor Assembly, 11 N. L. R. B. 20. 8 The respondents are referring to a case entitled Matter of Sierra Madre-Lamanda Citrus Association and Citrus Packing House Workers Union Local 20766, Case No R-309. The record in said case discloses that on June 15, 1938, the Board granted a request made by the Union to withdraw its petition for an investigation and certification of representa- tives and ordered the case closed. 410 N L R B 1269, enf'd in North Whittier Heights Citrus Association v W. L. R. B., 109 F. (2d) 76 ( C. C. A. 9). 146 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that the exhibit was immaterial or incompetent. Thereafter, the Board introduced in evidence Board Exhibit Nos. 8 to 25, inclusive, and 27 and 28, in the North Whittier case, which were marked Board Exhibit Nos. 3A to S in the instant case. The respondents objected to the admission in evidence of each of the above exhibits on the ground that they were incompetent and immaterial. The Trial Examiner reserved ruling upon these objections. In his Intermediate Report he received all these exhibits in evidence. In accord with our decision in the North Whittier case, Board Exhibit Nos. 3E to H, both inclusive, and 3-0 to S, both inclusive, will be admitted; 5 and Board Exhibits Nos. 3A to D, both inclusive, and 31 to N, both inclusive, will be excluded." During the hearing the parties stipu- lated that the testimony of certain witnesses, concerning the juris- diction of the Board in the instant case, which was offered in Matter, o of Sierra Madre-Lamanda Citrus Association and Citrus Packing House Workers Union Local 20766,7 herein referred to as Case No. R-309, together with all objections thereto, be considered a part of the record in the present case. In his Intermediate Report the Trial Examiner received said testimony in evidence in the instant case. We have reviewed the rulings of the Trial Examiner and find that no prejudicial errors were committed. The rulings are hereby affirmed except as noted above. On February 6, 1939, the respondents filed exceptions to the Inter- mediate Report and requested permission to argue orally before the Board. Subsequently the respondents filed a brief with the Board in support of their exceptions. Pursuant to notice served on the respondents and the Union, oral argument was had before the Board in Washington, D. C., on October 3, 1939. The respondents were represented by counsel and participated in the oral argument. The Board has considered the exceptions and the briefs, and, in so far as the exceptions are inconsistent 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 1. THE BUSINESS OF THE RESPONDENTS Respondent Sierra is a corporation organized under the Cooperative Marketing Association laws of California, and has its principal office and place of business in Pasadena, California. Two hundred and g These correspond to Board Exhibit Nos. 12 to 16, both inclusive, and 27 and 28, in the North Whittier case. 6 These correspond to Board Exhibit Nos. 8 to 11, both inclusive, and 17 to 22, both inclusive, in the North Whittier case. ° Case No. R-309. SIERRA MADRE-LAMANDA CITRUS ASSOCIATION 147 sixteen citrus fruit growers comprise the membership of respondent Sierra. They own, among them, a total of 1,943 acres of orchard land, of which about 61 acres are grapefruit, and the remainder is about equally divided between oranges and lemons. Respondent Sierra is .engaged in the business of fumigating, spraying, and dusting the -citrus fruit groves of its members, in picking the fruit, and in washing, grading, and packing the fruit for shipment and market. Upon ap- plying for membership in respondent Sierra, each grower becomes bound by its bylaws, rules, and regulations. The activities of respondent Sierra involve two departments, the orange department and the lemon department," the latter handling both lemons and grapefruit. The packing of oranges is carried on at about the same time as the picking. The orange department works on navel oranges from late December or early January to sometime in April, and on Valencia oranges from May to about October. It is practically shut down from October until late December or early Janu- ary. The grapefruit season corresponds roughly to that for Valencia oranges; and lemons are picked and packed to some extent during the entire year, but in the lemon department the period from June to November shows the least activity. Respondent Sierra, together with other and similar local associa- tions, is affiliated with a district exchange, the Semi-Tropic Fruit Exchange. There are 25 similar district exchanges throughout Cali- fornia, each being a corporation having as its members a representa- tive selected by each of the local associations. Respondent Sierra has a written agreement with its district exchange providing that all the fruit controlled by respondent Sierra is to be marketed through the district exchange. This contract with the district exchange specifi- cally refers to and embodies the agreement which is in turn entered into by the district exchange and the California Fruit Growers Exchange. The California Fruit Growers Exchange is also a corporation organized under the laws of California and each district exchange is entitled to one representative on its board of representatives. The agreement between the California Fruit Growers Exchange, and its district exchanges establishes the former as the general agent of each district exchange in all matters concerning `the marketing of citrus fruits. In accordance with these agreements all the fruit controlled by respondent Sierra is marketed through its district exchange and the California Fruit Growers Exchange. Each shipment of fruit by rail is made in the name of the California Fruit Growers Exchange as both the consignor and consignee, and the bill of lading is delivered to 8 Oranges and lemons are packed in separate packing houses. 148 ' DECISIONS OF NATIONAL LABOR RELATIONS BOARD the California Exchange. During the 12-month period ending Octo- ber 31, 1937, the California Fruit Growers Exchange and its affiliated associations produced nearly 24 million boxes of citrus fruits, repre- senting 75 per cent of the oranges, 92 per cent of the lemons, and 78 per cent of the grapefruit produced in California. For the year ending October 31, 1938, it was estimated that members of local asso- ciations affiliated with the California Fruit Growers Exchange would produce approximately 77 per cent of the oranges, 92 per cent of the lemons, and 74 per cent of the grapefruit produced, in,California and Arizona.9 It was estimated that during the two citrus seasons, 1936-37 and 1937-38, the destination of all the fruit produced in California would be as follows : Oranges Per cent Shipped in interstate commerce ------------------------------ 70 Shipped in intrastate commerce----------------------------- 15 Otherwise disposed of---------------------------------------- 15 Lemons Per cent Shipped in interstate commerce------------------------------- 72 Shipped in intrastate commerce--------------- ---------------- 13 Otherwise disposed of--------------------------------------- 15 Grapefruit Per cent Shipped in interstate commerce------------------------------- 41 Shipped in intrastate commerce or Otherwise disposed of The fruit listed as "otherwise disposed of" is converted into various manufactured products, donated to charity, or otherwise eliminated from the market. The California Fruit Growers Exchange has built up a sales organ- ization that, under direction from its headquarters in Los Angeles, covers the United States, Canada, and a number of foreign markets. District sales offices are maintained in 57 of the larger cities of North America, and there are 32 additional suboffices in smaller centers. Advertising campaigns featuring the trade-mark "Sunkist," are con- ducted throughout the United States, and in Canada and Great Britain, and advertisements in periodicals, recipe books, consumer educational material, and dealer displays are circulated all over the world. The agreement between the California Exchange and the district exchanges lists as one of its principal purposes and objects, "That the business engaged in, being interstate in character, to secure at all times full compliance with the laws of the United States concerning Interstate Commerce . . ." 9 About 75 per cent of Arizona citrus acreage is also affiliated with the California Fruit Growers Exchange in the marketing of its fruit. SIERRA MADRE-LAMANDA CITRUS ASSOCIATION 149 Figures as to respondent Sierra's own pack covering the past few seasons are as follows : Past 6-year 1936-37 season (actual 1937-38 season (esti- period figures) mated figures) (estimated figures) Total pro- Shipped in Total Pro- Shipped in Shipped in duction in interstate duction m Interstate interstate boxes commerce boxes commerce commerce Oranges-------------------------- --------- 65,026 Per cent 80 113, 667 Per cent 80 Per cent 79 Lemons __ ________________________________ 110,083 75 119,158 75 65 Grapefruit_________________________________ 28,912 41 27, 682 40 45 The Betz Packing Company, an individually owned business en- gaged principally in the business of supplying labor to packing asso- ciations, operates throughout the State of California and has its principal offices at Monrovia, California. On June 11, 1937, respond- ent Betz and respondent Sierra entered into a contract in which re- spondent Betz agreed to accept oranges at the receiving end of respondent Sierra's packing house "and perform all usual operations within and through the house including lidding and delivering to cold storage but not including separating or other work made neces- sary on account of frost damage." The contract also provided that all work was to be under the supervision of respondent Sierra and to its "satisfaction at all times." Respondent Betz was to receive a determined price payable weekly for each box of oranges packed. This contract expired when the Valencia orange season ended in the latter part of August 1937. On October 13, 1937, respondent Betz and respondent Sierra en- tered into two contracts, one covering the lemon department and the other covering the orange department, in which respondent Betz, "as an independent contractor and not as" the respondent Sierra's agent, agreed to handle the packing of all oranges, lemons, and grapefruit delivered to respondent Sierra's packing houses during the 1937-38 navel orange season and the 1937-38 lemon and grapefruit season. The contracts provided that respondent Betz was to employ and have full supervision and control of all labor involved. Respondent Betz was to receive a determined price for each box of oranges it packed, but as to the lemons and grapefruit respondent Sierra was to pay respondent Betz the actual cost of the labor plus determined handling charges. Respondent Sierra contends that between October 13, 1937, and the time the contracts expired,10 respondent Betz had complete control of IU The contracts expired at the end of the orange , grapefruit , and lemon seasons in 1938. The record does not disclose the exact dates. 283034-41-vol. 23-11 150 DECISIONS OF NATIONAL LABOR' RELATIONS BOARD employment in both departments. This raises a question as to whether either or both the respondents were employers of the em= •ployees involved while the contracts were in force. Section 2 (2) of the Act -provides that the term "employer" as used in the Act ".. . includes any person acting in the interest of an employer, directly or indirectly . . ." It is clear that during the period the October con- tracts were in force respondent Betz was the employer within Section 2 (2) of the employees involved in this case. They were listed on respondent Betz's pay roll and were paid and supervised by respond- ent Betz. Since respondent Sierra owned, managed, and otherwise controlled the packing houses in which the employees worked and supplied the money with which they were paid, and since respondent Sierra retained control over employment to the extent that persons respondent Sierra objected to were not hired by respondent Betz, and, through its superintendent, supervised and inspected the work performed by the employees and reported mistakes to respondent Betz, we find that for the duration of the October contracts respond- ent Sierra was also the employer within Section 2 (2) of the employ- ees involved in this case." II. THE EMPLOYEES INVOLVED The general categories of workers used by the respondent Sierra consist of pickers, fumigators, sprayers, dusters, floor laborers, grad- ers, and packers. The pickers pick the fruit from the trees in the orchards of respondent Sierra's members and place it in field boxes. After the fruit is picked and put into field boxes, the grower himself generally hauls the fruit to respondent Sierra's packing houses or plant, but respondent Sierra furnishes the trucking facilities and charges its members for their use. The fumigators perform the work of covering the trees with tents and running a gas vapor under the tent; the sprayers spray the trees with various insecticides ; and the dusters dust the trees with prepared chemical materials. 11 See Matter of William Randolph Hearst, etc . and American Newspaper Guild, Seattle Chapter, 2 N. L. R. B. 530, enf'd as mod, N. L. R. B. v. Hearst at at, 102 F. (2d) 658 (C. C. A. 9) ; Matter of C. A. Lund Company and Novelty Workers Union, Local 1866, 6 N. L. R. B. 423, enf'd as mod., N. L. R. B v. Lund at at , 103 F. (2d) 815 (C. C. A. 8) ; Matter of Pennsylvania Greyhound Lines, Inc, Greyhound Management Company, Corpo- rations, and Local Division No. 1063 of the Amalgamated Association of Street, Electric Railway and Motor Coach Employees of America, 1 N L R. B 1, enf'd N. L. R. B. v. Pennsylvania Greyhound Lines, Inc., et al., 303 U. S 272 , rev'g 91 F. (2d) 178 (C. C. A. 3). The respondents contend in their brief that under California law as established by local court decisions respondent Betz occupied the status of an independent contractor after the execution of the October contracts . It is not necessary to construe the State law because whether or not respondent Betz was an independent contractor under the October contracts within the meaning of California law, both respondents are employers within the meaning of Section 2 (2) of the Act. SIERRA MADRE-LAMANDA CITRUS ASSOCIATION 151 When the fruit arrives at the packing houses it is handled by the floor laborers. They receive the field boxes from the trucks, move the fruit about through the various rooms of the packing house, and dump it into the washing tanks and onto the proper conveyor belts or hoppers. The floor laborers do all the unloading, trucking, and handling of the fruit in the packing houses, the stacking and loading of the boxes of fruit which have been packed, and also unload and handle the shooks (the component parts of the boxes) and make up and repair the packing boxes and picking ladders. The oranges unloaded on the receiving platform at the packing plant are first moved into storage rooms from where they are placed onto a conveyor belt and dumped into a presorter where all the leaves and trash are removed. From here the fruit travels into a soaking tank, passing between brushes which scrub each orange with soapy water. Next the fruit goes into tanks containing a solution of borax; then past rollers where the drops of water are taken off and into the driers; then into the waxer where clear wax is applied; then to the presizer where the fruit too small to pack is eliminated; then to the graders for grading into first, second, standard, and culled grades; and then to the bins where it is packed. The packers wrap the fruit and place it in boxes which are put on the conveyor belts and carried to the precooling room where the fruit is kept an average of 10 days before being moved to market. Lemons and grapefruit are handled by the lemon-packing depart- ment in approximately the same way as oranges by the orange de- partment. A few of the lemon-packing operations are not so mech- anized as the corresponding operations of the orange department, the lemons and grapefruit being dumped into the soaking tank by hand. During the subsequent steps in the process through the lemon-packing department the fruit is automatically moved from the soaking tank to the brushes; then to the disinfectant tank; then to the waxer; and then to the sorting table. Lemons and grapefruit are graded according to color, and each box is packed with fruit of the same color. The boxes filled with lemons or grapefruit move along the conveyor belts and are at this time carried into an air-conditioned storage room. As the fruit reaches the proper color, the boxes are removed from the storage room and the fruit is again placed on a grading belt, and finally packed and stacked on the packing floor. After being properly inspected it is moved into market. On an average day when navel and Valencia oranges and lemons and grapefruit are being handled through the packing house an average crew consists of 47 floor helpers, 29 graders, 43 packers, and 135 pickers. During the season in which fumigating or spraying is 152 DECISIONS OF NATIONAL LABOR RELATIONS BOARD done there is at least one crew for each type of work, making a total of 12 persons doing this work. All the individuals named in the complaint were employed as packers, graders, or general packing-house laborers, and their duties were performed inside the packing plant or on the loading platforms. The respondents contend that all the employees are "agricultural laborers." Section 2 (3) of the Act excludes "agricultural laborer" from the definition of the term "employee," and consequently from the jurisdiction granted to the Board. We are, in the present case, not concerned with all the labor employed by the respondents. We are concerned only with those who work in respondent Sierra's packing houses. An examination of the above-described operations and functions performed by the respondents and of the duties of the employees here involved clearly demonstrates that they are not agricultural laborers within the meaning of Section 2 (3). As stated above, respondent Sierra is engaged at its packing plant in the business of receiving, handling, washing, grading, assembling, packing, and shipping citrus fruit. These services are performed in a large plant owned by respondent Sierra, which is equipped with specialized machinery for the mass-production handling and processing of citrus fruit. The duties of the packing-house employees, like those of workers in other industrial plants, are coordinated with the operation of the machines which automatically handle and process the fruit. The respondents' business and the operations of the packing-house employees look not toward the production of fruit but toward its marketing. For the respondents to claim upon this record that the packing-house employees are agricultural laborers, is to ignore the fundamental nature of their business. The work of the respond- ents carried on by the packing-house employees is not concerned with farming operations. The production of the fruit is the business of the grower who delivers it to respondent Sierra. Thereafter the activities of the respondents with relation to the fruit are part of the wholly separate business of marketing. The respondents argue that their activities are in reality the activ- ities of the growers themselves, that they are merely the instru- mentality which the growers employ to process and market their fruit as an incident of their general farming operations, and that hence the packing-house employees are agricultural laborers since they are actually employed by the growers. The argument, however, is with- out merit. In the first place, the respondents are engaged in opera- tions which are not part of the fruit growers' ordinary activities. Secondly, the respondents are no mere instrumentality of the affiliated growers. They are a wholly separate, legal entity having fixed con- SIERRA MADRE-LAMANDA CITRUS ASSOCIATION - 153 tractual obligations which the growers cannot at will alter. Under the terms of the membership in the respondent Sierra and the agree- ments of the respondent Sierra with the California Fruit Growers Exchange and the district exchange, the growers completely relin- quish the preparation and marketing of their fruit to respondent Sierra and the exchanges. They agree that all the fruit required by respondent Sierra shall be marketed through it. The growers do not even retain the right to determine when the fruit shall be picked. While the identity of the fruit passing through the plant is not lost until it is graded and recorded, the growers have no control over the fruit after it is delivered to the plant. They have nothing to do. with the day-by-day management of the plant, and have no control what- ever over the employees here involved, who are hired, directed in their work, and discharged solely by the respondents. We find that the individuals employed in respondent Sierra's packing houses are not employed as agricultural laborers.12 III. THE ORGANIZATION INVOLVED Citrus Packing House Workers' Union, Local 20766, is a labor organization admitting to its membership production employees working in respondent Sierra's packing houses. IV. THE UNFAIR LABOR PRACTICES A. Interference, restraint, and coercion The complaint alleges, and the answer denies, that on and after May 20, 1937, the respondents interfered with, restrained, and co- erced their employees in the exercise of rights guaranteed in Section 7 of the Act. In May 1937 the Union commenced organizational activities at re- spondent Sierra's packing houses. On June 3, 1937, after learning that the Union was organizing respondent Sierra's employees, its general manager, Frank Webber, assembled and spoke at length to the employees in his office. Among other things, Webber reviewed the history of the respondent Sierra, described the respondent Sierra's efforts to provide the employees with decent working conditions, praised the employees' loyalty to the respondent Sierra, explained a recent discharge, described the labor movement in general and, al- though stating that respondent Sierra was neither for nor against '2North Whittier Heights Citrus Association v. N. L R. B., 109 F. (2d) 76 (C. C. A. 9), enf'g Matter of North Whittier Heights Citrus Association and Citrus Packing House Work- ers Union, Local No. 21091, 10 N. L. R. B. 1269; cf. Matter of American Fruit Growers, Inc et al, and Fruit & Vegetable Workers Sub Local of No 191, UCAPAWA, C. 1. 0., 10 N. L. R. B. 316; Matter of George G. Averill, et al. and Fresh Fruit & Vegetable Workers Union, Local 78, C. I. 0., 13 N. L. R. B 411 ; Matter of Grower-Shipper Vegetable Association of Central California, et al. and Fruit and Vegetable Workers' Union of California, No. 18211, 15 N. L. R. B. 322. 154 DECISIONS OF NATIONAL LABOR RELATIONS BOARD labor unions, warned the employees that if respondent Sierra was forced to pay higher wages than other packing houses, the resulting increase in cost of production would cause the growers to take their fruit elsewhere to be packed and, as a consequence, the employees would lose their jobs. During his speech Webber also told the em- ployees that he did not know "how far" they had "gone nor what" their "ideas" were about labor organizations, but that the employees in two other packing houses had "come to the conclusion of having a committee to talk to their managers." Webber described such "groups" as being "along the line" that a "cooperative is handled." 13 At the conclusion of Webber's speech the meeting was opened for general discussion.14 During this discussion a non-union employee suggested that the employees organize an unaffiliated union; where- upon Webber suggested that another meeting be held by the em- ployees within the next few days to consider the matter. Philip Somerlott, an employee who was president of the Union, testified that he was asked during the discussion by Webber how much the initiation fee in the Union was and when he told Webber.it was $3, Webber remarked "that is quite a lot of money." Somerlott also testified that Webber stated "he thought that if we [the employees] formed a little group there we could be a big happy family" and "there was no need to joining any outside labor organization," and that Webber finally stated, "Phil, you want to think this over. Every- body think this over and I am going to see the Board of Directors, see what we can do about forming a little group among ourselves here, and until that time I don't want you [Somerlott] to collect any more money from anybody or to sign up any more members." Somerlott testified further that the next day Webber approached him in the packing house and stated, "About this Union, the growers absolutely will not stand for a union. It means my job .. . as well as the employees', because they have got a lot of money in this packing house,- but they will abandon this whole thing ... they will withdraw their fruit and put it in other houses, if this Union goes through here." Somerlott claims that Webber told him that Gordon Brooks, a supervisor in the fluoroscope and precooler departments, was going to outline a plan for the organiza- tion of an unaffiliated union at the next meeting of the employees. At the hearing Webber admitted having a conversation with Somer- lott in which he told Somerlott that he hoped the employees would "look into all sides of this matter," but denied that he made the statements testified to by Somerlott. In view of Webber's other con- 1a These quotations are taken from Respondent Exhibit No . 3, which is a transcript of notes taken by E. M. Gammell, respondent Sierra's bookkeeper and office manager, during the speech. u Gammell did not take notes on the general discussion. SIERRA MADRE -LAMANDA CITRUS ASSOCIATION 155 duct and the nature of his conversation with Somerlott , we find that Webber in substance made the statements attributed to him by Somerlott. The plan to organize an unaffiliated union was called to the atten- tion of Barney Dreyfus, an organizer for the Union. Dreyfus filed charges with the Regional Director , then went to Webber 's office and advised him that if the second meeting was held and a labor organiza- tion evolved as a result of the meeting, respondent Sierra would be violating the Act. After some discussion, Webber agreed that the second meeting should not be held and the employees were so informed by Dreyfus in Webber's presence. Later the same day Webber introduced Dreyfus to Melville Morgan, the president of respondent Sierra. Dreyf us testified that Morgan greeted him by saying , "Hell, I don't see any horns or guns on you. You are an American." He also testified that later during their conversation Morgan stated that "he didn't believe in unions, that he was perfectly capable of running his own plant, and so far as he could he would see to it there never was any tie-up with the Union." Morgan testified that he greeted Dreyfus by saying, "Well , you are not the sort of a fellow that I expected to meet. I had an idea that these labor organizers were large, tough -looking hombres and some- times had horns . . ." and that he later interrogated Dreyfus con- cerning his union activities , asking among other things how much money he was receiving and who was paying him to organize the respondent Sierra's employees . Morgan denied, however, that he told Dreyfus that he was opposed to the Union . In view of the statements Morgan admittedly made to Dreyfus, and the fact that the Trial Examiner, who had an opportunity to observe the demeanor of the witnesses , credited the testimony of Dreyfus , and in the light of the 'entire record which establishes that respondent Sierra, of which Morgan was president , was opposed to the organization of its employees by the Union , we find that Morgan, in substance, made the statements attributed to him by Dreyfus. As a result of Webber's agreeing to cancel the second meeting, Dreyfus withdrew the charges he had filed with the Regional Direc- tor and on June 18, 1937, the Regional Director closed the case. Whether or not this settlement would induce us to dismiss a com- plaint predicated only on employer conduct occurring prior to it, we consider this conduct in determining whether respondent Sierra engaged in unfair labor practices subsequent to the settlement. As we find below , the respondents did engage in unfair labor practices subsequent to June 18 , 1937. Accordingly , we find that giving effect to the settlement would not effectuate the policies of the Act and we 156 DECISIONS OF NATIONAL LABOR RELATIONS BOARD therefore base our findings and order on the events occurring before and after June 18.15 About July 15, 1937, the respondent Sierra posted the following notice on its bulletin board : That Section 2(3) of the Wagner Act exempting "Agricultural Labor" was intended by Congress to exempt all labor used in the growing, harvest, and preparing for market of fresh fruit and vegetables in their natural state and thereby exempts work- ers handling citrus fruit in packing house operations. . Immediate steps will be taken to obtain from the National Labor Relations Board or a court of final jurisdiction, a ruling exempting such labor from the act's provisions. Employers in the citrus industry, and in other cooperating agricultural groups, intend to conduct their business and main- tain the relationship between employer and employee free from unlawful acts, demands or interference or misleading representa- tions of labor organizers or outside agitators. Membership in any union is not necessary in order to work in the citrus industry either in growing, harvesting or packing citrus products and employers insist upon the right to meet and bargain with their workers, collectively or individually, whether these employers are union members or not. The industry strongly condemns any policy of intimidation or coercion and pledges its resources to protect all citrus workers in their right to work and will insist that all law enforcing agencies furnish adequate and impartial protection to persons and property. Congress has recognized the necessity of dealing with agricul- tural labor on a different basis than industrial labor. Because of this and the perishable nature of agricultural products and the many uncontrollable factors in producing and marketing them which cause ruinous results to workers, growers and the consumer alike, the citrus industry while not opposed to collective bar- gaining, must be kept free from unjustified strikes and the imposition of "hiring halls" and the "closed shop." This industry is opposed to the collection of funds from workers with no adequate explanation of the intended use or proper accounting and it is opposed to dealing with irresponsible organizations purporting to represent labor. It recommends ap- propriate steps be taken to bring about responsibility on the part of labor unions both as to their method of dealing and accounting of funds received from workers. 16 See Matter of Hope Webbing Company and Textile Workers Organizing Committee of the C. 1. O , Local No. 14 N L R B. 55; Matter of Allsteel Products Manufacturing Company (Inc) and International Association of Machinists , Local 1508, 16 N. L. R. B., 72; Matter of The Van Iderstsne Company and District #50 of the United Mine Work- ers of America, 17 N. L. R B. 771. SIERRA MADRE-LAMANDA CITRUS ASSOCIATION 157 The manifest purpose of this notice, as its language shows, was to discourage membership in the Union. The record shows that after the formation of the Union, supervisory employees of respondent Sierra made intimidatory anti-union statements to employees in their respective departments. Raymond Sable, an employee, testified that during June and thereafter, Donald Dewer, foreman of the lemon department, interrogated Sable regard- ing the Union, asked Sable why he had joined the Union, and stated that anyone who joined the Union was a "radical or a Red." At the hearing Dewer denied that he had told any employee that he was opposed to "unions" and claimed that he first learned about the Union at the meeting on June 3 in Webber's office, and that he learned through "hearsay" that some of the employees were members; but that he could not remember who communicated this "hearsay" in- formation to him. Later in Dewer's testimony he claimed that he had not talked "to anybody about the Union." Dewer's testimony is evasive and unconvincing. Upon the entire record, we find that Dewer, in substance, made the statements attributed to him by Sable. Harold Imray, an employee and one of the original organizers of the Union, testified that Gordon Brooks, a supervisor in the fluoro- scope and precooler departments, stated to him that persons - who joined the Union were "crazy" and "a bunch of damn fools" because the Union "wouldn't work." In the latter part of June, according to Imray, Brooks told him that if he and 10 of the other union members, who had been employed by respondent Sierra for "quite a while," would relinquish their membership in the Union, Webber would place them on monthly salary and they "wouldn't lose any time." 16 At the hearing Brooks admitted discussing the Union with Imray, but claimed that he could not remember what was said, that they were just "kidding back and forth," and that there was "no serious con- versation." Brooks' testimony, like Dewer's, is evasive. The Trial Examiner, who had an opportunity to observe the demeanor of the witnesses, credited Imray's testimony. We find that Brooks, in sub- stance, made the statements attributed to him by Imray. Although Dewer and Brooks did not have the power to hire and discharge employees, they were considered by the other employees to be supervisory employees, they issued orders to employees, and they filed reports concerning the employees' work. We find that Dewer and Brooks were supervisory employees and that respondent Sierra is responsible for their above-described statements" 10 Webber did not testify concerning this matter. 17 See Matter of American Manufacturing Company; Company Union of the American Manufacturing Company; the Collective Bargaining Committee of the Brooklyn Plant of the American Manufacturing Company and Textile Workers' Organizing Committee, C. 1. O , 5 N. L. R. B. 443, enf'd N. L. R B. v. American Manufacturing Company et at., 106 F. (2d) 61 (C. C. A. 2) ; Matter of The Serrick Corporation and International Union, 158 DECISIONS OF NATIONAL LABOR RELATIONS BOARD At the hearing Webber claimed that after Dreyfus left his office he told Merwin Brown, superintendent of respondent Sierra, to instruct the other supervisory employees not to discuss union activities with the employees, but there is no showing in the record that Brown car- ried out Webber's instructions or that respondent Sierra took any vigorous remedial measures, clearly brought to the attention of the employees, to remove the effect of the coercion inherent in the state- ments of the management hereinabove set forth."' We find that respondent Sierra, by its threats and other acts hereinabove set forth, including assembling the employees on June 3, 1937, Webber's statements at the meeting, Webber's statements to Somerlott the next day, Morgan's statements to Dreyfus, the posted notice, and the statements of Foreman Dewer and Brooks, has inter- fered with, restrained, and coerced its employees in the exercise of the right to self-organization, to form, join, or assist labor organi- zations, to bargain collectively through representatives of their own choosing, and to engage in concerted activities, for the purpose of collective bargaining or other mutual aid or protection guaranteed in Section 7 of the Act. B. Discrimination in regard to hire and tenure of employment The complaint as amended at the hearing alleges that the respond- ents discriminated in regard to the hire and tenure of employment of 13 named employees, herein called charging employees, because of their union affiliation and organizational activity, thereby dis- couraging membership in the Union.19 For the purpose of con- United Automobile Workers of America, Local No. 459, enf'd International Association of Machinists, Tool and Die Makers Lodge No. 35, etc. et al. V. N. L. R B, decided November 20, 1939 (C A., D. C.). '8 See Matter of West Oregon Lumber Company and Lumber and Sawmill Workers Local Union No. 3, International Woodworkers of America, 20 N. L. R B. 1. 19 The following is a table showing the names of the 13 charging employees , their posi- tions in the Union , the department in which they were last regularly employed, and the number of years they were employed by respondent Sierra. Number Department in which of years Position in Union the charging em- employ- ployees were last ed by regularly employed respond- ent Sierra Philip Somerlott__________ President ___________________________ Lemon ---------------- 11 Dolly Armstrong--------- Vice President______________________ Orange________________ 10 J. W Schofield ----------- Financial Secretary _________________ Lemon ---------------- 8 Edith Stein _______________ Treasurer --------------------------- Lemon---------------- 2 Harold Siebold ____________ Recording Secretary ----------------- Lemon---------------- 1 Florence Tennery_________ Trustee _____________________________ Lemon ________________ 14 Charles Lalla_____________ Citrus Counsel Member ------------ Machinist ------------- 15 May Mutza______________ Charter Member____________________ Lemon ---------------- 14 Harold Imray_ Charter Member____________________ Lemon________________ 9 LaVere Imray Charter Member____________________ Lemon ---------------- 9 Meretta Miller ----------- Charter Member____________________ Orange ---------------- 15 Dorothy Lewis ----------- Member--------------------------- Lemon ---------------- 9 Anna Jesseman ___________ Member____________ ________________ Orange ---------------- 8 SIERRA MADRE-LAMANDA CITRUS ASSOCIATION 159 venience, the cases of Philip Somerlott and Charles Lalla, who were discharged by respondent Sierra on August 16 and October 7, 1937, respectively, will be considered first; the contracts between the respondents will be considered next; the cases of the eight charging employees who were not reinstated to the lemon department upon and after its resumption of operations on October 14, 1937, will be considered next; and the cases of the three charging employees who were not reinstated to the orange department upon and after its reopening on January 10, 1938, will be considered last.20 1. The discharge of Philip Somerlott and Charles Lalla Philip Somerlott had been employed by respondent Sierra for about 11 years prior to his discharge on August 16, 1937. The Trial Examiner found that this discharge was discriminatory and the respondents take exception. Early in May 1937 Somerlott ascertained from Dreyfus what pro- cedure was necessary to form the Union; and thereafter explained the procedure to Charles Lalla, John Schofield, Harold Siebold, and Harold Imray, who, with Somerlott, became the original organizers of the Union. After the Union received its charter, Somerlott was elected its first president. As stated above in Section IV A, on the 20 Of the 11 persons in respect to whom the complaint alleges discrimination subsequent to the closing and reopening of the lemon or orange houses, 3-Dorothy Lewis, LaVere Imray, and Edith Stein-left the lemon house prior to its shut -down in 1937 to obtain more remunerative seasonal work elsewhere. Lewis and LaVere Imray left Pasadena on July 20. Stein left Pasadena on August 11 and returned in September , after the lemon department shut down and before it reopened Lewis and LaVere Imray returned to Pasa- dena in December 1937, after the lemon department had resumed operations Harold Imray, one of the eight remaining persons, although staying at Pasadena until his depart- ment, the lemon house, shut down, Lett Pasadena thereafter to secure seasonal employment elsewhere, and did not return to Pasadena until December 1937, after the reopening of the lemon department. Before leaving Pasadena, Lewis, LaVere Imray , and Stein requested Superintendent Brown's permission to do so and sought Brown 's promise that they would obtain rein- statement upon their return . While the testimony is in conflict as to Brown 's precise reply, it appears that he gave them some assurances , indicating, however, that he could make no promise of reinstatement , since he could not foretell whether the fruit to be packed during the following season would be affected by the freeze which had occurred In January 1937. Subsequent events showed that the fruit had not been affected . LaVere Imray testified, without contradiction , that the lemon department foreman advised the employees customarily that if they desired, they could work elsewhere during "slack" sea- sons. Stein had gone "north" to work during slack seasons at Pasadena in 1935 and 1936 and had been reinstated upon her return . In 1937 Stein was accompanied on her trip "north" by Elizabeth Horn, a fellow lemon-house employee , and Horn was reinstated when the lemon department reopened on October 14, 1937. Employees of respondent Sierra were laid off customarily at the end of the season, sub- ject to recall during the following season. We find that the 11 persons, who were allegedly denied reinstatement discriminatorily, remained employees within Section 2 (3) of the Act . North Whittier Heights Citrus Asso- ciation v. N. L. It. B., 109 F. ( 2d) 76 ( C. C. A. 9 ). Whether or not they retained employ- ment status within Section 2 (3), discrimination in regard to their hire would constitute an infringement of Section 8 (1) and ( 3) remediable under Section 10. Matter of Waum- bee Mills, Inc. and United Textile Workers of America, 15 N. L. R B. 37. 160 DECISIONS OF NATIONAL LABOR RELATIONS BOARD day after the meeting in Webber's office on June 3, 1937, Webber ap- proached Somerlott and warned him that the growers would not "stand for a union." In spite of this warning, however, Somerlott continued his activity in behalf of the Union. At the hearing Superintendent Brown described Somerlott as being "a superb worker" and "a very fine worker" prior to the formation of the Union, but claimed that after the Union was organized Somer- lott's "attitude changed completely." Brown gave two incidents to prove the "change in attitude." In May, according to Brown, Somer- lott often took 15 minutes for a rest period instead of the customary 10 minutes. There is nothing in the record to indicate that respond- ent Sierra was strict in limiting the rest period to 10 minutes. That respondent Sierra.did not view the matter seriously is established by Brown's admission that he never called this alleged tardiness to Somerlott's attention. On one occasion in May or June Somerlott, contrary to a company rule, picked two or three lemons off the floor and put them in a box with other lemons. Brown reminded Somer- lott of the company rule whereupon Somerlott removed the con- demned lemons. This was an isolated incident and hardly corrobo- rates Brown's vague implication that subsequent to the formation of the Union, Somerlott became indifferent to his work. Furthermore, Brown admitted at the hearing that he "certainly wouldn't" dis- charge "a man for a thing like that." Brown testified that in the afternoon of July 6 he smelled liquor on Somerlott's breath. Brown did not assert, however, that Somer- lott was intoxicated on this occasion or that he was not performing his duties in a satisfactory manner. Moreover, Brown did not rep- rimand him. The record shows also that Somerlott had taken one or two "tall" glasses of wine with his lunch, customarily, over a period of years, and that the respondent had taken no action against him for having liquor on his breath. Sometime in July Brown began to exercise close surveillance over Somerlott and to take written notes thereon. Brown had never taken written notes before of an employee's conduct. On the witness stand Brown claimed that he resorted to this device because he felt that if Somerlott "kept on flaunting [sic]" and "disregarding the authority of the place he would have to be fired"; and that since Somerlott was instrumental in forming the Union he "didn't want to take any chances of firing him [Somerlott] when he [Somerlott] could say it was for union activities." The only instances relied upon to show that Somerlott "flaunted" the respondents' authority before Brown began to preserve a written record of Somerlott's behavior are the three instances described above. They afford no substance to the claims that Somerlott "flaunted" or "disregarded" the authority of management. SIERRA MADRE-LAMANDA CITRUS ASSOCIATION 161 Respondent Sierra relies on" Somerlott's alleged behavior on July 23. The usual quitting time was 3: 30 p. m. and Somerlott checked out at that time on July 23. Brooks and Somerlott gave conflicting versions of the events leading to Somerlott's leaving for home on July 23.21 We credit Somerlott's testimony and find that he left under the following circumstances : After he had punched his time card, Brooks informed him that Brooks had planned to work the crew until 4: 30 p. m. Somerlott stated thereupon that he had not known of these plans and offered to return to work. Brooks replied in substance that he had adequate help and Somerlott should "Go ahead. You have punched out now and you won't have to change your card." Brown claims that he smelled liquor on Somerlott's breath on July 28 22 and warned Somerlott that if he continued to drink he would be discharged and that Somerlott replied he did not "give a damn" whether he was. Somerlott, however, denies this incident and upon the entire record we do not believe that the alleged warning and reply occurred. Respondent Sierra claims that Somerlott was intoxicated on August 3. That day about 2: 30 or 3 p. m., Brown, Earl Shup, Somerlott's immediate superior, and Foreman Dewer on the one hand and Somerlott on the other, engaged in a controversy the details of which need not concern us here. Brown claims that Somerlott spoke "thickly" and was "almost drunk" and that he warned Somerlott on this occasion that if he continued to drink he would be discharged. Dewer claims that Somerlott was "glassy eyed" and talked with a "thick tongue" and appeared to be intoxi- cated; and Shup claims that Somerlott's eyes were "bleary" and "he didn't talk coherently." Against these colored epithets we have the denial of Somerlott that he was drunk or half-drunk on the respondents' premises on that day or any other day. We are not convinced that Somerlott was drunk on August 3. Aside from the 21 Brooks testified that about 2 p. in. he told the members of the crew , including Somer- lott, in response to a question from one of them, "I believe we are going to have to work a little later in order to finish the particular lot of fruit belonging to a grower" ; that at 30 p in. when Brooks asked Somerlott why he had checked out , Somerlott replied, "Eight hours is enough for any man to work" ; and that Somerlott 's going home "left the crew short." According to Brown, Brooks attributed the non-operation of the fluoro- scope after 3: 30 to Somerlott 's departure for home Somerlott's job was simply to dump fruit onto the belt leading to the fluoroscope . Obviously, operation of the fluoroscope did not depend on any unique skill possessed by Somerlott . The record does not show how many persons were required for the efficient operation of the fluoroscope crew or how many were available after 3: 30 . The record does not show that Brown reprimanded Somerldtt for leaving at 3 : 30. 22 Brooks testified that during the month of July, he smelled liquor on Somerlott's breath and observed that he was "sleepy " Brooks did not reprimand Somerlott for any liquor smell. He testified further that he reprimanded Somerlott for carelessness once, that Somerlott claimed to be sleepy , and that therefore Brooks transferred him to another operation . Brooks admittedly did not report the alleged liquor smell , and it does not appear that he reported the alleged sleepiness , to Brown or to any other superior. 162 DECISIONS OF NATIONAL LABOR RELATIONS BOARD above-quoted characterizations of Somerlott by supervisory em- ployees, the record does not indicate that Somerlott 's actions on August 3 were irrational or those of an intoxicated person. The fact that the supervisors engaged in serious conversation with him is itself persuasive that they considered him sober . Finally, the record shows affirmatively that respondent Sierra did not consider Somerlott incapacitated on August 3. Thus Shup admitted that the operation of the lidding machine requires care and that on August 3 Somerlott was performing this work satisfactorily . Under these circumstances we cannot credit the testimony that Somerlott was drunk or "almost" drunk on August 3. Brown testified also that on August 6 Somerlott "kept making trips" behind the grapefruit department and had the smell of liquor on his breath. Brown testified further that on August 7 Somerlott went to the "back porch" and that upon investigation Brown found a bottle of wine hidden in a box on the "back porch." By this in- nuendo Brown apparently seeks to imply that Somerlott drank dur- ing working hours. Somerlott denied that he drank during work- ing hours and we cannot believe that Brown believed otherwise, for he did not mention these alleged incidents to Somerlott , nor does the record show that Brown made any bona fide effort to determine whether Somerlott was really drinking during working hours. On Sunday, August 8, Brown reported to Webber at his home what he had "found out" about Somerlott. On Tuesday, August 10, Somerlott did not appear at work and Brown telephoned his home to ascertain the reason . Somerlott had gone to Los Angeles on "personal business" and was not at home when Brown called. Somerlott's son answered the telephone . He told Brown that Somerlott was away, and that Somerlott 's wife would call and explain his absence the following day. Somerlott returned home late Tuesday night . Work had been slack in the packing house at this time. Consequently, the employees were working only a few days each week. Although Brown claims that Somerlott was sup- posed to work every day in the week , including August 10, it is clear from the circumstances just related , from Somerlott's testimony, and from Shup's failure to deny such testimony, that Shup had instructed Somerlott not to report for work on Tuesday, August 10. On Wednesday, August 11, Somerlott's wife informed him that Brown had telephoned the day before . Brown claims that he also telephoned Somerlott's home on August 11, but received no answer. Somerlott had become ill on August 11. He did not go to work accord- ingly, and remained at home all day. At noon that day, Harold Imray, a fellow employee, visited Somerlott at home during the lunch period. Somerlott requested Imray to advise Brown that he was ill. SIERRA MADRE-LAMANDA CITRUS ASSOCIATION 163 Imray communicated this information to George Schaub, who was acting in Shup's place, as Somerlott's superior. Schaub did not tes- tify. On Wednesday night Brown went to Webber's home and told him that Somerlott "was absent and hadn't made any attempt to contact us." Somerlott remained at home because of illness from Wednesday, August 11, to Monday, August 16. On Friday, August 13, John Schofield stated to Brown that Imray had gone to Somerlott's home and, that Somerlott was ill. On Sunday Brown discussed Somerlott's absence with Webber again and was instructed by Webber to discharge Somerlott. On Monday morning, August 16, when Somerlott reported for work, he was discharged by Brown in Dewer's presence. Brown claims that he asked Dewer to witness the discharge because he "didn't want Somerlott to be able to say that he wasn't given a fair discharge." Brown at first testified that he assigned, as the reason for the discharge, Somerlott's absence from work without notice to respondent Sierra. Later, however, Brown claimed that he also assigned as part of the reason the "incidents where he [Somerlott] had come to work with a smell of liquor on his breath." Somerlott claimed at the hearing that the only reason assigned for the discharge was his alleged failure to notify respondent Sierra when he remained home. Foreman Dewer could not recall that any other reason for the discharge was given by Brown. The Trial Examiner believed Somerlott and found that Somerlott was told he was discharged because he remained away from work without notifying respondent Sierra. Upon the entire record, we adopt this finding. Brown testified that Somerlott had never stayed away before without a telephone call to respondent Sierra from his wife, and that it was his practice to discharge employees who remained away from work with-- out notice. Brown, however, could give only one instance of his al- leged practice, a discharge in 1936. Moreover, from other testimony of Brown, as well as from Somerlott's testimony, we find that Somer- lott had not always notified respondent Sierra of his absences. It does not appear that respondent Sierra reprimanded Somerlott for these failures to give it notice. Finally, as we have stated above, Somerlott informed Schaub, his immediate superior at the time, through Imray, of the illness preceding his discharge. Subsequent to October 13, 1937, Webber requested respondent Betz not to, and accordingly respondent Betz did not, reinstate Somerlott. Somerlott, as organizer and president of the Union, was its most conspicuous member. Prior to this activity the respondent Sierra considered him "a very fine worker." The record does not bear out its contention that his conduct deteriorated after May 1937. His 164 DECISIONS OF NATIONAL LABOR RELATIONS BOARD habit of drinking wine at lunch was of long standing, did not inter- fere with his work, and was not obnoxious to respondent Sierra before Somerlott organized the Union. That his failure to notify the respondents of his illness was the real cause of his discharge is incredible because he did so notify the respondents through Imray and because of the other circumstances already set forth. We con- clude that Somerlott's union activity was the "change of attitude" and the "flaunting" of management authority to which respondent Sierra objected. Upon all the evidence, we find that Brown, by taking written notes on Somerlott's conduct soon after the formation of the Union in and after July, sought to trap him and to manufacture a defense in anticipation of his discharge; that the reasons offered for his discharge are mere pretexts; and that the actual reason for discharging Somerlott was his union membership and activity. Re- spondent ' Betz, in sharing the status of employer with respondent Sierra and failing to reinstate Somerlott at Webber's request, also discriminated against Somerlott. We find that the respondents, by discharging and refusing to re- instate Somerlott, discriminated in regard to his hire and tenure of employment, thereby discouraging membership in the Union, and interfering with, restraining, and coercing their employees in the exercise of rights guaranteed in Section 7 of the Act. At the time of his discharge, on August 16, 1937," Somerlott was earning 55 cents an hour and was working approximately 34 hours a week. He desires reinstatement. Charles Lalla was employed by respondent Sierra for 15 years. He was discharged on October 5, 1937. The complaint alleges that the discharge was discriminatory. The Trial Examiner so found and the respondents take exception thereto. Lalla did electrical, cement, and carpenter work; machine work, such as making, installing, and repairing machinery of all kinds; and brick laying and plastering. He installed the sprinkling system in the groves, spray towers for spray rigs, and the oil towers, and he laid the foundation for oil tanks. He also "dusted" citrus trees and worked among the groves. Most of Lalla's duties were performed in the packing houses and consisted mainly of repairing and over- hauling the machinery. The record shows that Webber caused an article, which described and praised a fertilizing machine constructed by Lalla, to be printed in the May 1937 issue of The California Citrograph, a monthly publication. Lalla was one of the original organizers of the Union. He joined the Union on June 5, 1937, and thereafter became the union delegate to an organization known as the Citrus Council. About 2 weeks prior to Lalla's discharge he was informed by Larry Largent, an electrician whom Lalla was assisting at that time, that SIERRA DIADRE-LADIANDA CITRUS ASSOCIATION 165 Webber had summoned Largent to his office and advised him that he desired to lay Lalla off. On October 5, 1937, Brown approached Lalla and told him that he "was through." Brown testified that Lalla was discharged because he had "finished his work" and claimed that Lalla's position was never filled. Later in the hearing, however, Brown testified that prior to Lalla's dis- charge, Ed Polzel and Lalla had performed the mechanical work in the packing houses, Lalla assisting Polzel; and that since Lalla's . discharge a new employee who "is a combination electrician and mechanic" had been hired to assist Polzel. Webber testified that Lalla was discharged because the "odd jobs ... ran out when we got the whole plant rebuilt." Upon further examination, however, Webber testified that respondent Sierra had completed its building program in January 1937; and that Lalla had "not always worked on construction" but was "primarily [a] repair- man." Webber also claimed that a new building which had "stood practically idle for a year" contained some "very exacting electrical equipment" which Lalla could not handle, and that he had hired a "new man" who could handle this work to replace "an electrician" and Lalla. The reasons given by respondent Sierra for Lalla's discharge are unconvincing. We do not believe that it is likely that a man who had performed general machine repair work and other "odd jobs" would suddenly, after a period of 15 years regular service, "fin- ish" his work, or that the "odd jobs" in a plant as large as respondent Sierra "ran out." The record shows that the construction work had no effect on Lalla's work. This is evidenced by the fact that Lalla was employed by respondent Sierra for 10 months after the construc- tion was completed, and that Lalla's duties were that of a general repairman and were not directly related to the construction program. Lalla's long record of employment with the respondent Sierra, the incredible explanation for his discharge, Lalla's prominent connec- tion with the Union, and the respondent Sierra's opposition thereto, convince us that Lalla was discharged because of his union member- ship and activity. We find that respondent Sierra has discriminated in regard to the hire and tenure of employment of Charles Lalla, thereby discourag- ing membership in the Union, and interfering with, restraining, and coercing its employees in the exercise of rights guaranteed in Section 7 of the Act. At the time of his discharge on October 3, 1937, Lalla was earn- ing 55 cents an hour and worked 9 hours a day. He desires to be reinstated. 283034-41-vol. 23-12 166 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2. The contracts between the respondents For a number of years prior to 1937, respondent Betz had at- tempted without success to obtain from respondent Sierra a contract for the packing of oranges. In 1937 the crop of Valencia oranges, which are packed from May until September, was greatly diminished because of a severe "freeze," and as a result respondent Sierra's packing house was able to operate only 1 or 2 days a week. Because of this situation, Philip Damon, "contact man" for respondent Betz, approached Webber and suggested that respondent Sierra's orange- department crew and a crew of respondent Betz which was packing oranges in a nearby packing house be consolidated so that the same crew could operate both houses, thereby reducing expenses and increas- ing efficiency. Thereafter, on Julie 11, 1937, the respondents entered into their first contract. By its terms, respondent Betz received a stipulated price for each box of oranges packed, and, although the salaries of the employees were paid by respondent Betz, respondent Sierra retained full supervision and control over employment in its packing house. Respondent Betz assigned Elmer Lusk to supervise its part of the work in the packing house and sent about 18 of its employees to join respondent Sierra's crew. Thereafter, the orange houses of respondent Sierra and its neighbor were operated with the one crew. On August 31, 1937, when all the Valencia oranges were packed, the orange house closed and the contract expired. The lemon season ended and the lemon department closed on September 15, 1937. During September 1937 respondent Sierra was considering not rein- stating employees, upon the reopening of the plant, because of their union membership and activity. This appears from the following testimony of Manager Webber : Q. Did you not say at that time [September 23, 1937, at, a Board hearing] that you would probably not take about ten of your old employees back at the beginning of the next season? A. I said there might be that many.23 Q. Did you expect to take back all of the employees regardless of the fact that they belonged to the Union or did not belong to the Union at that time? A. I was going to make no reference to the Union at that time. Q. Didn't you state that "we haven't made up our minds about that yet"? A. Yes. 2, Webber testified at the hearing in the present proceeding that upon the reopening of the plant following a seasonal shut-down respondent Sierra customarily failed to reinstate 10 or 12 of the "less desirable" employees and the "poorest workers," and that his testi- mony at the prior hearing referred to this custom Webber's testimony quoted in the text above, and the other evidence in the present proceeding, show that in September 1937 respondent Sierra considered that union membership or activity made an employee "less desirable." SIERRA MADRE -LAMANDA CITRUS ASSOCIATION 167 Q. You hadn't made up your mind at that time about the Union activities, what you were going to do? A. No, we hadn't made up our mind. Q. You said the reason you hadn't made up your mind is you didn't know what the outcome of the hearings before the National Labor Relations Board would be? A. Yes. Q. You were resting your judgment about what you were going to do on account of these union activities on the ground that you had been informed by various persons in authority that your particular industry did not come within the National Labor Relations Act, was exempt, is that correct? You thought you were agriculture? A. Yes. Still think so. Q. You feel that since you are agriculture, if any employees want to belong to the Union they do so at their own risk? A. If we are agricultural, naturally. Q. You can get rid of any employees if they belong to a union since you are agricultural; is that correct? A. If we are agricultural, we could. On October 13, 1937, immediately before the lemon house reopened and some 2 or 3 months before the orange house resumed operations, the respondents executed contracts for the packing of lemons and oranges. These contracts were different from the June contract in that they purported to vest full supervision and control over em- ployment in respondent Betz as "independent contractor" and "not the agent of" respondent Sierra. By the terms of the October- con- tracts, respondent Betz was to be paid on a "straight" basis for pack- ing oranges and a "cost-plus" basis for packing lemons.24 Webber testified that respondent Sierra entered into the contract for the lemon department in order to have available respondent Betz's lemon packers when "hot spells in the East" increased the demand for lemons and made necessary an increase in the lemon-department crew on short notice, and denied that the contract was entered into for the purpose of eliminating any of the employees from the pack- ing house because of their union activities. We do not believe this testimony. The record shows that respondent Sierra was the only 24 By "straight" basis is meant payment of a stipulated sum per box By "cost-plus" basis is meant payment of the actual cost of labor "plus a little over to pay for supervision, bookkeeping, and so forth " This payment was made at the end of each week by check. The respondents state in their brief that these contracts were in the form usually used by respondent Betz ; however, although the record shows that it was usual for respondent Betz to handle oranges on a "straight basis " and lemons on a "cost-plus" basis, there is no evidence in the record which shows that it was usual for respondent Betz to insert terms in its contracts which made it an "independent ' contractor" and "not the agent of" the other contracting party 168 DECISIONS OF NATIONAL LABOR RELATIONS BOARD major citrus association with which respondent Betz had a contract for packing lemons, and respondent Betz did not even have a lemon- packing crew at the time. of the execution of the contract. Further- more, there is no showing that any of respondent Betz's employees were ever sent to respondent Sierra's packing house during "hot spells in the East"; in fact, Lusk claimed at the hearing in connec- tion with his testimony concerning his failure to reinstate certain of the charging employees that after the lemon house reopened, pro- duction never "stepped up." Moreover, respondent Sierra had oper- ated its lemon house for 15 years without any such contract. Damon testified that respondent Betz entered into the lemon contract "for the money that was in it." This cannot be credited. Benjamin Betz, owner of respondent Betz, admitted that it did not "pack enough lemons to try to make a profit out of it" and that the lemon contract probably came about "as an accommodation for" respondent Sierra. With regard to the orange contract executed on October 13, Webber claims that he entered into this contract because respondent Sierra had saved money as a result of the June contract. Although it may be true that the contract was entered into for some lawful reasons, it is significant to note that the June contract was evidently entered into because of the freeze mentioned above and that no similar emer- gency existed at the time the October contracts were executed.26 A consideration of these contracts in connection with the other circumstances in the case leads to the conclusion that the respondents discriminated in regard to the reinstatement of employees. We have already noted the opposition of respondent Sierra to the Union, its interference with, and restraint and coercion of, the em- ployees, and its unlawful discharge of two union leaders. Moreover, as Webber's testimony shows, respondent Sierra was ready to dis- criminate in regard to the reinstatement of employees identified with the Union. Webber's testimony also shows that although respondent Sierra did not consider itself bound by the provisions of the Act, it contemplated the possibility that the Board might find otherwise. Respondent Sierra -resorted, therefore, to a method by which its dis- crimination against union members could be disguised. Its plan to evade the Act is evidenced by its preparation of a defense in anticipa- tion of Somerlott's discriminatory discharge. Moreover, the record fails to show any legitimate reason for the provisions purporting to shift control over employment to respondent Betz and purporting to make respondent Betz an "independent contractor" and "not the u The record shows that the oranges which were packed under the October contract were not affected by the "freeze" and that the practice, noted above , of operating two orange houses with one crew was discontinued. SIERRA MADRE -LAMANDA CITRUS ASSOCIATION 169 <igent.of" respondent Sierra; or any lawful motive for executing the lemon-packing contract. Also the respondents' witnesses gave incred- ible testimony in an effort to support the legitimacy of this contract. We think it plain that respondent Sierra purported, by contract, to shift control over employment to respondent Betz to conceal the fact that employees were being selected for reinstatement upon the basis of their membership and activity in the Union. 3. The failure to reinstate eight charging employees to the lemon department The lemon department reopened on October 14, 1937. The com- plaint alleges that eight named employees, who last worked in this department prior to its shut-down were discriminatorily refused rein- statement. The Trial Examiner so found and the respondents take exception. In prior years the employees had been recalled to work by respond- ent Sierra's sending Robert Horn, an employee, to their homes. On the day the lemon house reopened, Elmer Lusk, supervisor for re- spondent Betz at the packing plant of respondent Sierra, one Gelker, "field man" for respondent Betz, and Webber conferred with respect to the reinstatement of employees. Lusk and Webber testified that at this conference Webber objected to the employment only of Somerlott and John Schofield and that union activity was not discussed. Gel- ker did not testify. Following this conference Lusk and Horn visited the homes of employees and notified them to return to work. Before they had reached the homes of all lemon-house employees, Lusk advised Horn that he had selected enough employees. The record shows, however, that subsequently other employees were reinstated. Horn testified that he followed his customary route. The circumstances in this case, however, negate any defense that the lemon-department employees were selected by chance. We have already set forth a number of facts which discredit this defense. Further, Webber admits that he objected to the reinstatement of Somerlott, who, we have already found, was discriminatorily dis- charged. Schofield, the other lemon-department employee whose rein- statement Webber admittedly forestalled, was financial secretary and a charter member of the Union. The eight charging employees of the lemon department also included the union recording secretary, treasurer, and trustee.26 Of the 75 employees in the lemon depart- ° The first president of the Union was Somerlott. We found above that the respondents discriminated against him. The second president of the Union, George Schaub, was a lemon-department employee, and he was reinstated when the department reopened The record does not show whether he was elected president before or after his reinstatement. The vice president Dolly Armstrong, an orange-department employee, was not reinstated. Her case is discussed below. 170 DECISIONS OF NATIONAL LABOR RELATIONS BOARD meet on August 31, 62, or more than 82 per cent, were reinstated upon and after the reopening of the lemon and orange departments.27 Of the 14 union charter members 28 employed in the lemon depart- ment on August 31, 10 or less than 72 per cent, were reinstated upon and after the reopening of the plant. The disproportion is in reality greater than the ratio of 82 per cent expectancy to 72 per cent reali- zation because three additional charter members,29 not on the August 31 pay roll, 30 were employed in the lemon department during the 1937 season, and were not reinstated when the lemon and orange de- partments reopened. Moreover, it should be noted that of the 112 persons employed in the plant from June 1 to September 4, 1937, 74, or more than 66 per cent, were reinstated upon and after its re- opening; whereas of the 24 union officers or charter members em- ployed during the same period, 10, or less than 42 per cent, were reinstated upon and after the reopening of the plant. The elimina- tion of the above-mentioned union officers and the substantial dispro- portion in the number of officers or charter members reinstated as compared with the ordinary employees reinstated indicate that the personnel upon and after the reopening of the lemon and orange departments was selected on a discriminatory basis.31 Joh,n Schofield had performed "odd jobs" for respondent Sierra between 1911 and 1919 when he was placed on its regular pay roll and worked until 1921. Between 1921 and 1928 Schofield worked elsewhere, but in 1928 he entered respondent Sierra's employment again and worked continuously until the lemon department closed down on September 15, 1937. During the course of his employment, Schofield worked in the packing room, waited on graders in the packing room, worked in the storage department, in the basement, in the lemon-washer room and on some occasions in the orange de- partment. He was working as a lemon receiver and floor helper when he was laid off. Schofield, one of the Union's leaders and charter members, is its financial secretary. He represented the Union The figure 75 is obtained from Board Exhibit No 18 which Is a list of the employees in the lemon department for the 2-week period ending August 31 , 1937; the figure 62 is obtained from Robert Horn's testimony and from Board Exhibit Nos 8, 9, 10, and 11 which are lists of the employees in the lemon department during the weeks ending October 16 and 23 , 1937, and in the orange department during the weeks ending January 15 and 22, 1938. 28 The Union had 20 charter members. 20 Philip Somerlott , LaVere Imray , and Edith Stein. 80 Somerlott was discharged discriminatorily on August 16. Imray and Stein had left Pasadena temporarily , as we have noted above , on July 20 and August 11, respectively. 81 Matter of North Whittier Heights Citrus Association and Citrus Packing House Work- ers Union, Local No. 21091, 10 N. L. R. B. 1269 , enf'd North Whittier Heights Citrus Asso- ciation v . N. L. R. B, 109 F. ( 2d) 76 ( C. C. A. 9 ) ; Matter of The Louisville Refining Company and International Association, Oil Field, Gas Well and Refinery Workers of America, 4 N. L R, B. 844, enf'd N. L R. B v . Louisville Refining Co ., 102 F. (2d) 678 (C. C. A. 6 ), cert. den. 60 S. Ct. 81; Matter of Montgomery Ward d Company and Reuben Latzenberger, et al, 9 N. L. R . B. 539, enf'd Montgomery Ward d Co ., Inc, v. N L. R B., 107 F. (2d) 555 (C. C. A. 7). SIERRA MADRE-LAMANDA CITRUS ASSOCIATION 171 in his official capacity at the hearing in Case No. R-309, which was held on September 23. When the lemon department resumed opera- tions on October 14, 1937, Schofield was not reinstated. The (respondents called several witnesses to testify concerning Schofield. Webber stated that during the conference he had with Lusk and Gelker on the day before the lemon department reopened, he objected to Schofield's reinstatement allegedly because Schofield "had gotten so he was running all over the plant and that we had complaints about his handling the fruit rough, and that he had also lost his former interest he had in his work." Lusk stated that Scho- field was not reinstated when the lemon house reopened because Webber objected to him, but he could not remember what the alleged objections were. Brown claims that for a 6 months' period prior to June 1937, Schofield had acquired the habit of "running around the place" and disturbing the other workers by talking to them, but ad- mitted that he only complained to Schofield "once or twice" for this, and that he did not regard it as sufficiently serious to warrant Schofield's dismissal. On one occasion in August 1937, Schofield handled some fruit roughly in the presence of D. W. MacDonald, truck driver for Joe Crick, a grower and president of respondent Sierra. MacDonald spoke to Schofield concerning this matter. Schofield stated to MacDonald that "a bunch of us decided to get together and get all we can and let the packing house get along the best it can." Crick and MacDonald reported the incident to Brown. Brown admitted that when he instructed Schofield to handle the fruit "easily" Schofield "obeyed" and that respondent Sierra took no action against Schofield in regard to the August incident. Schofield admitted that prior to the lay-off he had received one or two complaints about his work and, in relating the facts concerning the only complaint which he could remember, stated that in August or September 1936, after "kidding" Dewer regarding the fact that the prices respondent Sierra was asking for its lemons were below the market prices, Brown reprimanded him for making the statement. Schofield was an employee of long standing. The respondents had never thought it expedient, prior to the formation of the Union, to penalize him by discharge, lay-off, or refusal of reinstatement. Brown's own testimony indicates that the respondents do not consider the reasons which they advance now for failing to reinstate him as sufficient cause for depriving a, person of his livelihood. Upon the whole record we find that these purported reasons are mere pretexts. We find that the respondents, by failing to reinstate Schofield on and after October 14, 1937, have discriminated with respect to his hire and tenure of employment, thereby discouraging membership in the 172 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Union, and interfering with, restraining, and coercing their employees in the exercise of rights guaranteed in Section 7 of the Act. When the lemon house closed down, Schofield was earning 45 cents an hour. He desires reinstatement. Harold Siebold, the Union's recording secretary, entered respond- ent Sierra's employment in December 1936 and worked in the groves until February 1937 when he began working in the lemon department. Later, Siebold was transferred to the fluoroscope and precooler departments and worked there until the orange house closed down, at which time he was transferred to the lemon department where he worked until it closed down on September 15, 1937. Siebold was laid off with the other employees. At that time, Earl Sahm, his foreman, advised him that he would be recalled. He was not called back to work when the lemon house resumed operations, and soon thereafter talked to Brown about being rein- stated. Brown referred him to respondent Betz. Later, Siebold saw Gelker and Damon who told him he would be called as soon as there was an opening, but Siebold was never called. Intermittently between October 1937 and January 1938, Siebold was able to secure employment in groves being fumigated by respondent Sierra, through respondent Sierra's fumigating foreman, but found that this work was unsatisfactory. On January 6, 1938, before the orange house reopened, Siebold asked Lusk for a job in the precooler and was told to report for work January 10. On January 7, however, Webber ob- jected to Lusk's employing Siebold.32 Accordingly, Brown and Lusk went to Siebold's home, and, in his absence, told his wife to ' inform him not to report for work. Siebold went to the packing house on January 10, but Lusk told him that he had a full crew and was unable to use his services. Shortly thereafter, representatives of the Union, including Siebold, and a representative of the Board called upon Webber and asked him to explain why he had prevented Siebold's reinstatement. Webber claimed that he had done so because Siebold's work in the precooler had been unsatisfactory. This was the first time Siebold had been informed that his work had been unsatisfactory. At the hearing Webber admitted that Siebold was a "good worker." Webber testified that upon learning that Lusk was about to reinstate Siebold, he "checked up," found that during the last season certain fruit had been stored improperly in the precooler, thought that Sie- bold had been in charge of the precooler at the time, and objected therefore to his reinstatement. In fact Siebold had not been in charge 32 Webber testified that he objected only to Siebold 's employment in the precooler. Lusk appears to have understood Webber's veto to apply to any reinstatement of Siebold. In any event , Siebold received no further employment in respondent Sierra's packing houses. When respondent Betz did give him employment , it was at another packing house. SIERRA MADRE-LAMANDA CITRUS ASSOCIATION 173 of the precooler. 39 Webber claims that he learned this only after he prevented Siebold's reinstatement. Webber does not explain satisfactorily why he "checked up" before permitting the reinstatement of Siebold. He does not explain what check he made. We cannot believe that a plant manager making a bona fide inquiry would not discover promptly who was in charge of the precooler. We conclude that Siebold, the Union's recording sec- retary, was another victim of respondent Sierra's campaign to freeze the Union out of its packing houses. We find that the respondents by not reinstating Siebold on and after October 14, 1937, discriminated with respect to his hire and tenure of employment, thereby discouraging membership in the Union and interfering with, restraining, and coercing their employees in the exercise of rights guaranteed in Section 7 of the Act. At the time the lemon department closed down Siebold was earning 45 cents an hour. In February 1938 Siebold was employed in another packing house by respondent Betz, but this work is not substantially equivalent to Siebold's former position in respondent Sierra's packing house and he desires reinstatement. Florence Tennery 34 had been employed by respondent Sierra for about 14 years prior to the lay-off, at which time she was working in the lemon house as a cull picker. She joined the Union on June 3, 1937, and was trustee of the Union. When the lemon house reopened, Tennery did not receive reinstate- ment. Horn testified that he stopped twice at Tennery's home in order to summon her to return to work and that she did not answer .35 11-1 former years when Tennery was not at home, he had left a note for her to return to work. This he did not do on this occasion. He claimed that he did not do so on this occasion because Lusk wanted to meet all the people. No satisfactory reason appears why Lusk 88 Gordon Brooks, who was inexperienced , had been in charge then. At the bearing Brooks claimed that in August 1937, Siebold had stored some fruit in the precooler improp- erly, and as a result Brooks had packed half a car with the wrong fruit and later had to repack it. This matter was not called to Siebold's attention at the time Webber did not rely upon this as a reason for precluding Siebold's recall, but upon the fact that he believed Siebold was in charge of the precooler at the time. Prior to his employment with respondent Sierra, Brooks had worked elsewhere as an in- vestigator. Although he had had no previous experience, he was placed in charge of the fluoroscope and precooler departments upon entering respondent Sierra's employment early in 1937. He was opposed to the Union and, as noted above, made anti-union statements to Imray. While he was employed by respondent Sierra he filed a daily report concerning the activities of each employee under him Brooks testified that the reports merely con- tained statements as to the operation performed during the day by each employee under him. None of these reports was submitted in evidence. Brooks left respondent Sierra's employment when the lemon department closed down and is now engaged in the business of "commercial collections." 84 Named R E. Tennery in the complaint. 88 Tennery asked Horn why he had not recalled her. Tennery and Horn gave conflicting testimony as to his reply. We need not resolve this conflict. 174 DECISIONS OF NATIONAL LABOR RELATIONS BOARD would not have been satisfied to meet them at the plant before they commenced work. About a week after the lemon department reopened, Tennery went to the packing house to ascertain whether she could get her job back and why she had not been called. Lusk told her that he had all the employees he needed, but that he might be able to use her later. She has never been reinstated. As noted above, Lusk hired some "new help" after the lemon house reopened. In view of the respondents' hostility to the Union, the facts men- tioned above showing discrimination against persons identified with the Union, Tennery's activity therein, her long-standing employment with respondent Sierra, the practice of giving her written notice to resume work when she could not be given oral notice, the failure of the record to show why Lusk would not have been satisfied with a personal meeting at the plant, and the employment of "new help" after the lemon house reopened, we find that the respondents by failing to reinstate Tennery on and after October 14, 1937, discriminated with respect to her hire and tenure of employment, thereby discouraging membership in the Union and interfering with, restraining, and co- ercing their employees in the exercise of rights guaranteed in Section 7 of the Act. At the time of the lay-off in the lemon department, Temlery was earning 38 cents an hour. She desires reinstatement. May Mutza was employed in the lemon department for 14 years prior to the lay-off on September 15, 1937. She is a charter member of the Union. Mutza was admittedly a "good" lemon packer and in prior years had always been recalled after the slack season lay-offs. She was not recalled by Lusk and Horn when the lemon department re- opened. Mutza lived two blocks west of the packing houses. Horn and Lusk claim that Mutza was not recalled because Lusk decided he had enough packers before they reached her home. Horn stated at the hearing that he and Lusk traveled over 10 miles while they were recalling employees and claims that he started south and had "worked" the north and west ends of town and was near Mutza's home when Lusk decided he had hired enough employees. On October 15, 1937, upon learning that the lemon department had resumed operations, Mutza telephoned Dewer and was instructed to see Lusk. The next day she went to the plant and saw Lusk who stated that the reason she had not been recalled was because he had secured all the employees he needed before reaching her home. Inas- much as Mutza lived only two blocks from the packing house, she'ex- pressed doubt that her name was on the list which Lusk and Horn had used in recalling the employees; and asked Lusk to permit her to in- spect it, but Lusk stated that he did not have it. Although Lusk SIERRA MADRE-LAMANDA CITRUS ASSOCIATION 175 promised to call Mutza when he needed her services , she was never recalled . The record shows that all except 5 of the 26 employees working in the lemon department on August 31, 1937 , who are classi- fied as "packers" were recalled by Horn and Lusk; that 3 of the 21 thus recalled were "learners"; 3' and that at least 3 of the 5 not recalled by Lusk and Horn were later reinstated.37 In view of the respondents' hostility to the Union, the facts men- tioned above showing discrimination against persons identified with the Union , Mutza's activity therein, her long-standing and satisfac- tory employment with respondent Sierra, the reinstatement of three inexperienced packers in preference to her, the employment of "new help" after the lemon house reopened , and the reinstatement of three more lemon packers to the orange house when it reopened, we find that the respondents by failing to reinstate Mutza on and after Octo- ber 14, 1937, discriminated with respect to her hire and tenure of employment, thereby discouraging membership in the Union and in- terfering with, restraining, and coercing their employees in the ex- ercise of rights guaranteed in Section 7 of the Act. Edith Stein entered respondent Sierra's employment in June 1935. Stein is one of the Union's charter members and its treasurer. On August 11, 1937, when work was slack in the packing house, Stein and another employee, Elizabeth Horn, mother of Robert Horn, went north to work "on grapes." They returned in September after the lemon house had closed down. When the lemon house reopened on October 14 Elizabeth Horn, a non-union member, was recalled , but Stein was not. Stein lived about 10 blocks from the packing houses. On May 6, 1938, Stein went to the packing house and asked for a job . Lusk told her he had all the help he needed , and although he made a note of her telephone number and address, Stein was never recalled. In view of the respondent Sierra's hostility to the Union, the facts mentioned above showing discrimination against persons identified with the Union, Stein's prominent identification therewith, the fact that Elizabeth Horn, a non -union employee, who went north with her, was recalled and Stein was not, and the employment of "new help" after the lemon house reopened , we find that the respondents by fail- ing to reinstate Stein on and after October 14, 1937, discriminated with respect to her hire and tenure of employment , thereby discourag- ing membership in the Union, and interfering with, restraining, and 88 "Learners" are inexperienced packers who are learning the trade They receive a minimum wage of 25 cents an hour for 3 months after their employment, after which period they receive a regular packer's wage 87 These three were reinstated in the orange department when it reopened in January 1938. 176 DECISIONS OF NATIONAL LABOR RELATIONS BOARD coercing their employees in the exercise of rights guaranteed in Sec- tion 7 of the Act. Stein was earning 50 cents an hour and working 8 hours a day when she was last employed in the lemon department. She desires reinstatement. LaVere Imray, Dorothy Lewis, and Harold Imray. LaVere Im- ray entered respondent Sierra's employment in 1929. She was one of the Union's original organizers and a charter member. Dorothy Lewis was employed by respondent Sierra about 9 years, was one of the first employees to join the Union, and was active in soliciting members for it. Harold Imray, a charter member of the Union, was employed at respondent Sierra's packing houses for about 8 years and was active in the Union. Soon after Harold Imray joined the Union, and while he was working in the fluoroscope department, Brooks, his supervisor, commented to Imray that he had heard that some of the employees had joined the Union and that he thought they were "crazy" and "a bunch of damn fools" because the Union "wouldn't work." In the latter part of June Brooks informed Har- old Imray that Webber would place him and 10 of the other em- ployees who had been employed by respondent Sierra "for quite a while" on a salary basis, if they would relinquish their membership in the Union. Harold Imray did not relinquish his membership. About July 20 LaVere Imray and Lewis went "north" to obtain work there. Harold Imray worked until the lemon department closed down on September 15. Upon his lay-off with the other em- ployees in that department, he too went "north" to obtain employ- ment. Brown stated at the hearing that Harold Imray did "good work" and that he had received no complaints concerning his work prior to the lay-off. The lemon department reopened on October 14, 1937. Harold and LaVere Imray and Lewis returned to Pasadena in December 1937. On or about December 14, 1937, Harold Imray, learning about the contract between the respondents, applied for reinstatement at respondent Betz's office in Monrovia. On December 17 LaVere Imray and Lewis went to the packing house and applied to Brown for reinstatement. Lewis testified that Brown "sort of laughed" and stated there was no work for them, adding that if they wanted to see Lusk "it was okay, but he was positive there would be no work for" them. A few minutes later while LaVere Imray and Lewis were talking to some of the other employees in the packing house, Brown approached them and warned them not to talk to employees and, according to LaVere Imray and Lewis, he also stated the respondents had the plant "pretty well cleaned out" and intended to "keep it that way." Imray testified SIERRA MADRE-LAMANDA CITRUS ASSOCIATION 177 that she then asked Brown if he meant that their work had not been satisfactory and that he replied, "Oh, your work is all right." At the hearing Brown admitted conversing with Imray and Lewis, but denied making the above statements. However, in view of both Imray's and Lewis' testimony and the record as a whole, we find that he made the statements attributed to him. On December 18 Harold Imray went to the packing house and asked Foreman Dewer what the possibilities were of his being rein- stated. Dewer stated that Imray had not had his mind on his work lately and that, if Imray were- reinstated, his status would be that of a "new man" and he would be one of the first to be laid off. On January 14, 1938, Harold Imray asked Brown for a job and Brown referred him to respondent Betz. He told Brown that he had al- ready filed an application with respondent Betz. Brown stated then that "he had a stack of evidence a foot high" against the employees in the, "precooler" and that Imray "was through." Prior to the lay-off Imray had never received any complaints concerning his work. In view of LaVere Imray's, Lewis', and Harold Imray's long- standing employment with respondent Sierra, the respondents' hos- tility to the Union, the facts mentioned above showing discrimination against persons identified with the Union, the Imrays' and Lewis' activity therein, Brown's remark that the respondents had the pack- ing house "pretty well cleaned out" and hoped to "keep it that way," we find that the respondents by failing to reinstate LaVere Imray and Lewis on and after December 17, 1937, and Harold Imray on and after December 18, 1937, have discriminated with respect to the hire and tenure of their employment thereby discouraging member- ship in the Union and interfering with, restraining, and coercing their employees in the exercise of rights guaranteed in Section 7 of the Act. When LaVere Imray, Lewis, and Harold Imray last worked in the lemon department they were earning 45, 50, and 471/2 cents an hour, respectively. They desire to be reinstated. 4. The failure to reinstate the three charging employees in the orange department The orange department reopened on January 10, 1938. The com- plaint alleges that three employees, who worked in this department, were discriminatorily refused reinstatement. The Trial Examiner so found and the respondents take exception. Respondent Sierra had customarily reinstated employees without prior application. Lusk testified that respondent Betz's practice was to require an application, that the Betz practice was followed 178 DECISIONS OF NATIONAL LABOR RELATIONS BOARD as to the orange department; that only orange department employees who applied prior to January 10 were reinstated on January 10, and that the remaining positions, available on January 10, were given to regular employees of respondent Betz. Lusk testified fur- ther that the Betz practice of requiring applications was not followed as to the lemon department because respondent Betz did not have regular lemon packers of its own available at that time. Dolly Armstrong and Meretta Miller were employed by respond- ent Sierra for about 10 and 15 years, respectively. Armstrong is the Union's vice president and Miller is one of its charter members. They were laid off with the other employees when the orange de- partment closed down on August 31, and expected to be recalled when it reopened. Prior to the reopening of the orange department, Armstrong and Miller were not notified that it was necessary to apply to Lusk in order to secure reinstatement and accordingly did not do so. On January 10, 1938, when they learned that the depart- ment had reopened they went to the packing house and applied to Lusk for reinstatement, but were told that they had applied too late and that all the jobs were filled. Although Lusk promised to call them when he had openings, and "new" employees were admittedly hired during the season, Armstrong and Miller were never reinstated. In view of the respondents' hostility to the Union, the facts men- tioned above showing discrimination against persons identified with the Union, Armstrong's and Miller's activity therein, their long- standing employment with respondent Sierra, the change in the usual method of reinstating employees without notifying them, Armstrong's and Miller's application on January 10, 1938, and the employment of "new" help thereafter, we find that the respondents by failing to reinstate Armstrong and Lewis on and after January 10, 1938, discriminated with respect to their hire and tenure of em- ployment, thereby discouraging membership in the Union and inter- fering with, restraining, and coercing their employees in the exer- cise of rights guaranteed in Section 7 of the Act. Both Armstrong and Miller desire to be reinstated. Anna Jessemarn was employed in the orange department about 7 years and had always been recalled after the lay-offs. When the orange house closed down, in August 1937, she was in charge of the orange graders. Jesseman was one of the first employees to join the Union, and was active in soliciting the employees in her department to join it. Jesseman learned, through rumor, that respondent Betz was going to supervise the work in the orange department when it reopened. On December 20, therefore, she sent a letter to Lusk applying for a job, ' and received a reply on December 27 advising her to see Lusk SIERRA MADRE-LAMANDA CITRUS ASSOCIATION 179 in January at the orange house. On January 6 Jesseman saw Lusk, who told her to report for work on January 10. On January 7, however, Lusk and Brown went to Jesseman's home and told her not to report. It will be recalled that the reinstatement of Siebold, a charging employee, was rescinded in the same manner and on the same day. Jesseman asked Lusk whether her union activity was the cause of her loss of employment. Lusk denied that it was. Lusk informed her also that she was a good worker. The respondents have not reinstated Jesseman although they have hired new help. Lusk testified that Gelker informed him that Gelker was sending four or five of respondent Betz's orange graders to the orange depart- ment "as he thought starting this new job we should make a good impression." Gelker did not testify. This was not a "new job" since, as noted, respondent Betz had an orange-packing' contract with respondent Sierra for the 1937 season. Indeed Webber testified that respondent Sierra renewed this contract in part because of the favor- able impression which respondent Betz had already made. In view of the respondents' hostility to the Union and their prior elimination of other active union members from respondent Sierra's packing houses, Jesseman's activity in the Union, her long-standing employment with respondent Sierra, the incredible explanation for revoking her reinstatement, and the employment of new help after the orange department reopened, we find that the respondents by failing to reinstate Jesseman on and after January 10, 1938, have discrimi- nated with respect to her hire and tenure of employment, thereby discouraging membership in the Union and interfering with, restrain- ing, and coercing their employees in the exercise of rights guaranteed in Section 7 of the Act. V. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the respondents set forth in Section IV above, occurring in connection with the operations of the respondents de- scribed 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 respondents have engaged in unfair labor practices, we will order them to cease and desist therefrom and to take certain affirmative action designed to effectuate the policies of the Act. We have found that respondent Sierra discriminated in regard to the hire and tenure of employment of Charles Lalla; and that 180 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the respondents discriminated in regard to the hire and tenure of employment of Philip Somerlott, John Schofield, Florence Tennery, Harold Imray, Harold Siebold, May Mutza, Edith Stein, LaVere Imray, Dorothy Lewis, Dolly Armstrong, Meretta Miller, and Anna Jesseman. Accordingly, we will order respondent Sierra to offer Charles Lalla reinstatement to his former or substantially equiva- lent position, and to make him whole for any loss suffered by reason of the discrimination by payment to him of a sum of money equal to that which he would normally have earned as wages from the date of discharge to the date of such offer of reinstatement, less his net earnings,38 if any, during such period, and we will order the respondents to offer Philip Somerlott, John Schofield, Florence Tennery, Harold Imray, Harold Siebold, May Mutza, Edith Stein, LaVere Imray, Dorothy Lewis, Dolly Armstrong, Meretta Miller, and Anna Jesseman reinstatement to their former or substantially equivalent positions, and to make them whole for any loss suffered by reason of the discrimination by payment to them of a sum of money equal to that which each would normally have earned as wages from the date of discharge or failure of reinstatement to the date of the offer of reinstatement, less his net earnings,39 if any, during such period. The offer of reinstatement shall be effected in the following manner : All employees hired during or after the discharges or failures of reinstatement here in question, shall, if necessary to provide employment for those to be offered reinstatement, be dis- missed. If, thereupon; by reason of a reduction in force there is not sufficient employment immediately available for the remaining employees, including those to be offered reinstatement, all available positions shall be distributed among such remaining employees in accordance with the respondents' usual method of reducing their force, without discrimination against any employee because of his union affiliation or activities, following a system of seniority to such extent as has heretofore been applied in the conduct of the respond- ents' business. Those employees remaining after such distribution, 33 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 termination of employment and the consequent necessity of his seeking employment else- where 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, municipal, or other work- relief projects are not considered 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. See Republic Steel Corp. v. N. L R. B., 107 F. (2d) 472 (C. C. A 3), enf'g Matter of Republic Steel Corpora- tion and Steel Workers Organizing Committee, 9 N. L. R B. 219. 39 See footnote 38, supra. SIERRA MADRE-LAMANDA CITRUS ASSOCIATION 181 for whom no employment is immediately available, 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 substan- tially equivalent positions , as such employment becomes available and before other persons are hired for such work. Upon the basis of the foregoing findings of fact and upon the entire record in the proceeding, the Board makes the following: CONCLUSIONS OF LAW 1. Respondent Sierra and respondent Betz are employers of the employees here involved within the meaning of Section 2 (2) of the Act. 2. Citrus Packing House Workers Union , Local No. 20766, is a labor organization, within the meaning of Section 2 (5) of the Act. 3. The individuals employed in respondent Sierra's packing houses at Pasadena , California, are employees, within the meaning of Sec- tion 2 (3) of the Act. 4. Respondent Sierra, by discriminating in regard to the hire and tenure of employment of Charles Lalla, thereby discouraging mem- bership in a labor organization, has engaged in and is engaging in unfair labor practices , within the meaning of Section 8 (3) of the Act. 5. Respondent Sierra and respondent Betz, by discriminating in regard to the hire and tenure of employment of Philip Somerlott, John Schofield , Florence Tennery, Harold Imray, Harold Siebold, May Mutza, Edith Stein , LaVere Imray, Dorothy Lewis, Dolly Arm- strong, Meretta Miller, and Anna Jesseman, thereby discouraging membership iii•a labor organization , have engaged in and are engag- ing in unfair labor practices , within the meaning of Section 8 (3) of the Act. 6. The respondents , by interfering with, restraining, and coercing their employees in the exercise of rights guaranteed in Section 7 of the Act, have engaged in and are engaging in unfair labor practices, within the meaning of Section 8 (1) of the Act. 7. The aforesaid unfair labor practices are unfair labor-practices affecting commerce, within the meaning of Section 2 (6) and (7) of the Act. ORDER Upon the basis of the foregoing findings of fact and conclusions of law, and pursuant to Section 10 (c) of the National Labor Relations Act, the National Labor Relations Board hereby orders that the re- spondents Sierra Madre -Lamanda Citrus Association, and Benjamin 283034-41-vol 23-i 3 182 DECISIONS OF NATIONAL LABOR RELATIONS BOARD H. Betz, an individual, doing business as Betz Packing Company, and their officers, agents, successors, and assigns, shall : 1. Cease and desist from : (a) Discouraging membership in Citrus Packing House Workers Union, Local No. 20766, or any other labor organization of their employees, by discharging or refusing to reinstate any of their em- ployees, or in any other manner discriminating in regard to their hire and tenure of employment or any term or condition of employment ; (b) In any other manner interfering with, restraining, or coercing their 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 concerted activities for the purpose of collective bargaining or other mutual aid or protection, as guaranteed in Section 7 of the Act. 2.- Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Respondent Sierra, its officers, agents, successors, and assigns, shall offer to Charles Lalla, and either or both respondents, their offi- cers, agents, successors, and assigns, shall offer to Philip Somerlott, John Schofield, Florence Tennery, Harold Luray, Harold Siebold, May Mutza, Edith Stein, LaVere Imray, Dorothy Lewis, Dolly Arm- strong, Meretta Miller, and Anna Jesseman, ininiediate and full rein- statement to their former or substantially equivalent positions without prejudice to their seniority and other rights and privileges, in the manner set forth in the section entitled "The remedy" above, placing those employees for whom employment is not immediately available upon a preferential list in the manner set forth in said section and thereafter in said manner offer them employment as it becomes available; (b) Respondent Sierra, its officers, agents, successors, and assigns, shall make whole Charles Lalla, and either or both respondents, their officers, agents, successors, and assigns, shall make whole Philip Somerlott, John Schofield, Florence Tennery, Harold Imray, Harold Siebold, May Mutza, Edith Stein, LaVere Imray, Dolly Armstrong, Meretta Miller, Dorothy Lewis, and Anna Jesseman, for any loss of pay they may have suffered by reason of the respondents' discrim- ination in regard to their hire and tenure of employment, by pay- ment to each of them, respectively, a sum of money equal to that which each would have earned as wages during the period from the date of such discrimination to the date of the offer of reinstatement, less his net earnings during such period; deducting, however, from the amount otherwise due to said employee, monies received by said employee during said period for work performed upon Federal, SIERRA MADRE -LAMANDA CITRUS ASSOCIATION 183 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 government or govern- ments which supplied the funds for said work-relief projects; (c) Post immediately notices in conspicuous places in respondent Sierra's packing houses at Pasadena , California, and maintain such notices for a period of at least sixty (60) consecutive days from the date of posting, stating : (1) that the respondents will not engage in the conduct from which they are ordered to cease and desist in paragraphs 1 (a) and (b) of this Order; (2) that they will take the affirmative action set forth in paragraphs 2 (a) and (b) of this Order; and (3) that their employees are free to remain or become members of Citrus Packing House Workers Union, Local No. 20766, and that the respondents will not discriminate against any employee because of such membership ; (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 respondents have taken to comply herewith.