Edinburg Citrus Association

National Labor Relations Board - Board Decisions

Aug 8, 1944

57 N.L.R.B. 1145 (N.L.R.B. 1944)

In the Matter of EDINBURG CITRUS ASSOCIATION and LOCAL 35, TEXAS
FRUIT AND VEGETABLE WORKERS UNION UCAPAWA-CIO
Case No. 16-C-10416.-Decided August 8, 1944
DECISION
AND
ORDER
On May 20, 1944, the Trial Examiner issued his Intermediate Re-
port in the above -entitled proceeding , finding that the respondent had
engaged in and was engaging in certiin unfair labor practices and
recommending that it cease and desist from such practices and take
certain affirmative action, as set forth in the copy of the Intermedi-
ate Report attached hereto. He also found that the respondent had
not forcibly removed union buttons from the clothing of employees,
as alleged in the complaint , and recommended that that allegation of
the complaint be dismissed . Thereafter the respondent filed excep-
tions to the Intermediate Report and a brief. No request for oral
argument•before the Board was made by any party, and none was held.
The Board has reviewed the rulings made by the Trial Examiner at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed . The Board has considered the Inter-
mediate Report, the exceptions and brief of the respondent , and the
entire record in the case , and hereby adopts the findings , conclusions,
and recommendations of the Trial Examiner.
The Trial Examiner found that the respondent , by the remarks of
Plant Superintendent Hyde to employees Opal Spurlock and Bernell
McElhaney on the afternoon of their discharges , made in 'the presence
of other employees , together with Hyde's inquiry of employee Glen
Bosley as to his attendance at a union meeting, violated the Act.
Like the Trial Examiner , we find ' that'by the above -mentioned state-
ments and activities , detailed in the Intermediate Report, the respond-
ent interfered with, restrained , and coerced its employees in the exer-
cise of the rights guaranteed in Section 7 of the Act , thereby violating
Section 8 ( 1) of the Act . The Trial Examiner also found, and we
agree, that the discharges of Spurlock and McElhaney were made
v; ith knowledge on the part of the respondent that the respondent's
padzers who requested the discharges were anti -union in sentiment,
57 N. L R . B, No. 174.
1145
1146 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and with the further knowledge that such packers' grievances against
Spurlock and McElhaney and their refusal to work with Spurlock and
McElhaney were based, in substantial part, upon the two employees'
unwelcome persistence in union activity and solicitation. We find
that the respondent, by acceding to the packers' request and discharg-
ing Spurlock and McElhaney under these circumstances, placed itself
in the position of ratifying,,and thus participating in, the packers'
anti-union sentiments and conduct, thereby discouraging membership,
in a labor organization,in violation of Sectioi 8 (3) of the Act.'
ORDER'
Upon the entire record in the case, and pursuant to Section 10 (c)
of the National Labor Relations Act, the National Labor Relations
Board hereby orders that the respondent, Edinburg Citrus Associa-
tion, Edinburg, Texas, and its, officers, agents, successors, and assigns,
shall : '
1. Cease and desist from :
(a) Discouraging membership in any labor organization of its em-
ployees by discharging or refusing'to reinstate any of its employees
or by discriminating in any other manner in ,regard to'the hire and
tenure of employment or any term or condition of employment of its.
employees; - -
(b) In any other manner interfering with, restraining, ol; coercing
its employees-in the exercise of the right to self-organization, to form,
join, or, assist Local 35,, Texas Fruit and Vegetable Workers Union
UCAPAWA-CIO, or any other labor organization, to bargain col-
lectively through representatives of their own choosing, Iand to engage
in conceited actin hies, for the purpose of, collective bargaining or
other mutual aid and protection, as guaranteed in Section 7 of the Act.
Take the following affirmative action which-the Board finds will
effectuate the policies of the Act: •
(a) Offer Opal Spurlock and Burnell McElhaney immediate and
'full reinstatement to their former or substantially equivalent positions
without prejudice to their seniority or other rights and privileges;
(b) Make whole Opal Spurlock and Burnell McElhaney for any
loss of pay they may have suffered by reason of the respondent's dis-
crimination against them' by payment to each of them of a sum of
money equal to the amount each normally would have earned as wages
N
'The contention of the respondent , advanced at the hearing and in its brief before the
Board , that the discharges were based upon a fear that , if' it did not discharge Spurlock
and McElhaney it would lose other employees, provides no justification for violating the
Act Cf Matter of Hudson Motor Car Company , 34 N. L. _ R B 815 enf d N L R P. V
Hudson Motor Car Co, 128 F (2d) 528 ( C. C A 6 ) ; Matter of Star PvbliRhang Co, 4
N L R B 498 enf'd N L R R v Star Publishing Co, 97 F (2d) 465 (C C A 9) ,
Matter of 9reer Steel Co, 38 N L. R B. 65; Matter of Borg Warner Coi poration, 44
N. L R. B.'105.
EDINBURG CITRUS ASSOCIATION 1147
during the period from the date, of her discharge to, the date of the
respondent's offer of reinstatement, less her net earnings during
such period.
(c) Post immediately in conspicuous places throughout its plant at
Edinburg, Texas, and maintain for a' period of at least sixty (60)
consecutive days from the date of posting, notices to the employees
stating: -(1) that the respondent will not engage in the conduct from
which it is ordered to cease and desist in paragraph 1 (a) and (b)
of this Order; (2) that the respondent will take the affirmative action
set forth in paragraph 2 (a) and (b) of this Order; and (3) that
the respondent's employees are free to become or remain members of
Local 35, Texas Fruit and Vegetable Workers Union UCAPAWA-
CIO. or any other .labor organization, and that the respondent will
not discriminate against any employee because of his or her member-
ship inor activity on behalf of any such organization ;
(d)• Notify the Regional Director for the Sixteenth Region, in writ-
ing, within ten (10)'days from the date of this Order, what steps the
respondent has taken,to comply herewith.
IT IS FURTHER ORDERED that so much of the complaint as alleges that
the respondent forcibly removed union buttons from the clothing of
employees, be, and it hereby is, dismissed.
CHAT-MAN MILLIS took no part in the, consideration of the above
Decision and Order.
INTERMEDIATE REPORT
31r Robei t-F Proctor, for the Board
Gi ccr and Co-r, by S R Gi eel, of McAllen, Texas, and Kelley and Loony/, by
R J Epochs ant, J. C Looncy, of Edinburg, Texas, for the respondent.
Otis G _latioa, of Mercedes, Texas, for the Union.
STATEMENT OF THE CASE '
Upon a charge duly filed on February 23, 1944, by Local 35, Texas Fiuit_and
Vegetable Workers Union, UCAPAWA-CIO, herein called the Union, the Na-
tional Labor Relations Board, herein called the Board, by the Regional Director
for the Sixteenth Region (Forth Worth, Texas), issued its complaint dated
March 14, 1944 against the Edinburg Citrus Association, herein called the
respondent, alleging that the respondent had engaged in and was engaging in
unfair labor practices affecting commerce within the meaning of Section 81(1)
and (3) and Section 2 (6) and (7)-of the National Labor Relations Act, 49 Stat.
449, herein called the Act. Copies of the complaint and notices of hearing
thereon were duly served upon the respondent and the Union.
With respect to the unfair labor practices the complaint alleges in substance
that: (1) on or about February 19, 1944, the respondent discharged Opal
Spudlock and Burnell McElhailey; herein referred to jointly as the complainants,
and has since refused to reinstate them to their former or substantially equiva-
lent position because they joined or assisted the Union or engaged in concerted
activities for the purpose of collective bargaining or other mutual aid or pro-
tection; and (2) the respondent through its named officers, agents, and employees
I
1148 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
from on or about February 1, 1944, to the date of the complaint, "vilified, dis-
paraged, and expressed disapproval of the Union ; interrogated its employees
concerning, their Union affiliations ; urged, persuaded, threatened, and warned
its,employees to refrain from assisting, becoming members of or remaining mem-
bers of the Union", thereby interfering with, restraining, and coercing its em-
ployees in the exercise of the rights guaranteed in Section 7 of the Act.
The respondent filed an answer dated March 27, 1944, which admits the facts
alleged as to its corporate organization and that the complainants were dis-
charged on February 19, 1944, and were not thereafter reinstated. However,
respondent denies that it is engaged in interstate commerce within the meaning
of the Act and that it has engaged in the.unfair labor practices alleged by the
complaint. As to the discharges, the answer states affirmatively that Spurlock and
McEllianey were discharged "for failure to perform their duties in the course
of their employment, as required under the rules and regulations and as directed
by this respondent, and that said two employees were discharged for cause which
in no manner related to any union or anti-union activities of said two employees."
Pursuant to notice, a hearing was held in Edinburg, Texas, on March 27, 28
and 29,,1944, before the undersigned, Charles E. Persons, the Trial Examiner
duly- designated by the Chief Trial Examiner. The Board and the respondent
were represented by counsel and the Union by one of its officials. All parties
participated in the hearing. Full opportunity to be heard, to examine and cross-
examine witnesses and to introduce evidence bearing on the issues was afforded
alrparties. At the close of the hearing, the Board moved to conform the pleadings_
to the proof in minor details not affecting matters of substance. This motion
was granted without objection. The parties were duly notified that they had the
privilege of engaging in oral argument before the undersigned. All parties waived
such argument. The parties were further advised that they might submit briefs
for the consideration of the Trial Examiner. The respondent submitted such a
brief on May 3, 1944.
Upon the entire record in the case and from his observation of the witnesses,
the undersigned makes the following : "
FINDINGS OF FACT
I: THE BUSINESS OF THE RESPONDENT 1
The respondent, Edinburg Citrus Association, was incorporated in 1932 under
the Cooperative Marketing Act of the State of Texas. In accordance with the
provisions of this statute, it has no capital stock and, is exempt from the franchise
tax. The members of the Association are growers of citrus fruits who have com-
bined for the purpose of packing, assembling, processing and distributing their
products. The packing plant and office are in Edinburg, Texas. During the sea-
son of 1942-43, the respondent's gross sales of citrus fruits amounted to approxi-
mately $500,000. Seventy percent of these sales were made to the Rio Grande
Valley Citrus Exchange, a sales and shipping organization located in Texas.
The Exchange, in turn, sells and ships about 80 percent of its goods to customers
outside the State of Texas. The remaining 30 percent of the products of the
respondent is delivered to truckers at the plant and, insofar as the respondent
has knowledge, is sold to consumers Within the State of Texas.
The raw materials used by the respondent consist principally of lumber, excel-
sior, paper, and other products used in the crating, packing,' and shipment of
citrus fruits. During the 1942-43 season, the purchases of such raw material were
3 These findings are based upon a stipulation of the parties incorporated in the record,
on allegations in the complaint admitted by the respondent in its answer, and on testi-
mony that is uncontroverted.
EDINBURG CITRUS ASSOCIATION - 1149
valued in excess of $100,000. All these raw materials are purchased by the
respondent from brokers and supply houses within the State of Texas. About
50 percent of the raw materials purchased originated outside the State of Texas.
During the season of 1942-43, the respondent employed from 125 to 130 workers.
Of this number, from 20 to 27 were packers. This proceeding is exclusively con-
cerned with the packing plant in Edinburg and the employees therein
The undersigned finds that the respondent is subject to the Act.
II. THE ORGANIZATION INVOLVED
Local 35, Texas Fruit and Vegetable Workers. Union, is 'a labor organization
affiliated with the United Cannery, Agricultural, Packing and Allied Workers of
America, which organization in turn is affiliated with the Congress of Industrial
Organizations. The Union admits to membership employees of the respondent
who work in its packing shed at Edinburg.
III. THE UNFAIR LABOR PRACTICES
A. Background
The record reflects no concerted activity in the respondent's plant before the
packing season of 1942-43: At that time the packers joined an American Federa-
tion of Labor union .2 The organization was on a craft basis and membership was
confined to packers. These employees, as is confirmed by the testimony of
several past members, had an unhappy experience with this union and were disin-
clined to further organization ' When the Union began organizational efforts
in the plant, early in January 1944, it proposed an industrial unit including floor
workers, or common laborers, as well as the graders, checkers, machine opera-
tors, and packers. This plan transcended racial lines among the various employee
groups. The common laborers were for the most part Latin Americans, while
the packers, who were women, included no Latin Americans The record discloses
that this factor was a fruitful source of ill feeling among the packers. Otis G.
Nation, representative of record for the Union in this proceeding, testified that
there were a few A. F`of L members in the plant who carne over into the C. I. O.
in December 1943. McElhaney was one of these. She testified that her member-
ship in the Union dating from December 6, 1943, "was just a transfer over from
the A. F. of L."
Respondent's plant employs a peculiar scheme of rotating workers in the
process of packing. The intent is to afford each packer, on the average, the same
opportunity to pack large and small fruit whether working 'oranges or grape
fruit. Packers are paid on piece rates per box or sack which do not vary according
to the size of the fruit handled Variations in size are considerable. The stand-
arcl one and three-fifths bushel box contains 46 of the largest size grape fruit
and 126 of the smallest. The largest oranges regularly packed require but 112 to
fill a box as contrasted with 224 of the smallest size.' Thus the labor entailed
in packing the smallest as, compared to the largest oranges is practically double.
The packers are given numbers. The head packer holds that position for a half
hour, then passes to the foot. Between the head and foot position the packers
are arranged in numerical rotation and are disposed at the bins according to, the
2 Pauline Self gave unrefuted testimony as follows : "Well, when they had the A. F of L,
. . . it was just a packers' union ; we were a hundred percent at that time
3 For example Louise Diassey, a packer, testified
We told her [Spurlock] we didn't object to joining the Union if it -was run by people
who were on the up and up, that most of the packets belonged to the A F of L last year
and they got all messed up and they just didn't want to go into it this year blindfolded
s Oranges as large as 96 to the box and as small as 260 are occasionally packed.
1150 DECISIONS' OF NATIONAL LABOR RELATIONS BOARD
rate at which the different sizes fall into the bins from the sizing machines. The
lines "move clear through our orange units and back and forward on the grape
-fruit unit." The proportionate amount of the various sizes in, a given lot, of•
fruit varies unpredictably according to the variety of oranges or grape fruit
handled, weather conditions during the preceeding, season and the degree of care
given the orchhrds,prochicing the fruit. I
It is essential that all bins -have sufficient packers to keep file fruit "packed
down." When bins become over full and fruit "hits the floor" the sizing machines
must be slowed down until the excess fruit is packed. Time is lost and graders
,and floor help are idle, on time wages, until this situation is remedied.
-Normally the number of packers is. ample Packers on going to the foot
:position ."stand out" for a varying period until the process of rotation calls
,them back to duty. The responsibility is imposed on each packer to call on
the packer next in line for assistance, in case the fruit falls on hei• station
in volume beyond her ability to pack it Similarly, when the volume falling in
any size bins is small,the packers are pushed back to allow those on the bills
in small supply,an opportunity to work 6 In theory lost time because of lack
of fruit is imposed only oil those temporarily in the foot positions.
Difficulty arises because of the unvarying price paid per box packed. The
process of ' rotation and the backing and filling ^ as the fruit falls in varying
volume in the bins, results in some of the packers securing the more lucrative
positions beside the bins containing the large fruit while their temporarily less
favored associates work doubly hard in the smaller fruit to secure the same
earnings This-naturally results in a temptation to retain the position in the
•la'rgest fruit for as long a period as possible by redoubling efforts to keep the
bins packed down in order that more packers need not be called and part of the
advantage of the large fruit given up Because the packers are engrossed in
their pursuit of large earnings, or because of an understandable reluctance to
move back into smaller fruit, they occasionally fail to exercise oversight over
bins of smaller fruit next following their positions. Packers are not promptly
called when these bins become, over full and work stoppage results Such
practices are in much disfavor and are termed "hogging the fruit" The con-
trary practice of "boosting" occurs when generous packers complete partly
filled boxes left by their associates who have moved in rotation or who are
temporarily absent from their posts, and thus give such packers full credit for
the boxes so. packed
Supervision of the rotation system and of the customs and procedure is left
largely in the hands of the packers 6 Foreman Wyatt Walden is in charge of
the orange machines and Foreman Harvey Maxwell' has similar authority over
the grapefruit As -the record shows, they intervene at times and rearrange
the packer line. Graham Killough, manager of the plant, testified that "the
packers more or less take care of their own duties." When asked whether it was
Maxwell's duty to straighten out squabbles in the grapefruit line, he responded:
"As such, yes, I guess, but generally the packers straighten it out themselves
As stated by one of the packers,` the foremen intervene "if they happened to be
5 Eldora Simmons, a packer who had worked each season in the plant since October, 1936,
'stated this matter clearly : "It is just like anything else, I guess, you just become used to it
and accustomed to it and you can more or'less judge by the late the fruit is going into the
,'bin whether the bins are going down or gaining on you so you can tell whether you need
another packer or can pack it out yourself " -
6 Massey, first hired at the plant in the fall of 1943, explained certain criticism which
she encountered as follows "Being a new packer I didn't know all the rules and regulations
that packers have among themselves
Marie Cline, who, at the time of the hearing; was in her second season at the plant
EDINEURG CITRUS ASSOCIAPION 1151
around and see the fruit hitting the floor" This practice of group control
over a system of rotation intended to equalize earning opportunities clashes with
individualistic seeking of advantage. As Ernest Hyde, assistant manager,'who
had general supervision under Killough of plant operation, testified "there is
always a certain amount of dissension."
Failure to exercise supervision extends to initial instruction of new employees.
Several packers newly hired at the plant testified that no attempt was made by
their supervisors to explain the intricacies of the rotation system. 'Such, instruc-
tions as they received came from their associates nearest in the packing lines.
Thus Massey testified that when Spurlock first started it was her [Massey's] duty
to explain "our system -of rotating" Melba Hancock, who was first hired at
the plant in January, 1944, was asked if instructions were,given her about the
rotation system. She replied:
Well, not especially. The day I went there to work I reported to Mr.
Walden and he went and assigned me a number-he went back and'talked
to Mr. Hyde and assigned me a packing number and then Mr. Walden taken
me back and said, "I am going to let you pack next to Opal [Spurlock]
because of the way we rotate. You follow her and in that way you will
catch on to how we rotate."
B. The discriminatory, discharges of Opal Spurlock and Burnell NeElhaney
Opal Spurlock was hired as a packer in January 1944. She had had seven
years experience elsewhere packing fruits and vegetables. Together with McEI-
haney she was 'discharged on February 19, 1944 There was no complaint on
their efficiency as packers. Assistant Manager Hyde, when asked whether the
Rork they performed was satisfactory, replied: "I believe there is no complaint
on the work they did; that covers a broad statement, the work they did. He
added: "Oh, I think they are both competent packers, experienced packers, there
is no question about that." Soon after her work began Spurlock had a quarrel
with Massey over the division of work opportunities. Spurlock appealed to
Walden and refused to,pack any longer beside Massey. Walden then moved Spur-
lock to the foot position This action met with the complete approval of Massey.'
In her new station Spurlock worked beside packer Eldora Simmons. They had
minor, squabbles over the use of stamps which the packers place on each box
indicating the size of the. fruit. Simmons, on, January 31, complained to Hyde
declaring that she would quit if Spurlock were not moved. On February 2,
Spurlock went to Hyde and told him : "I had a bawling out by one of the , packers
and I had rather not work." Hyde replied : "Well, all right, if you want to quit."
She came back on pay day, Saturday, February 5, accompanied by Hancock, who
had been riding to work in Spurlock's car. Both lived in Pharr, Texas. When
Hancock, informed Hyde that she was leaving because she no longer had means
of transportation, Hyde said, "Well, Opal [Spurlock] can come back'if she would
like to." Hyde then said to Spurlock, "Opal, I hated to see you quit the other
day but you seemed determined to do it so I didn't have much to say in the mat-
ter.... You are a good worker ; I observed that the first day you come on the
job s s Spurlock 'returned the following Monday and worked steadily until her
discharge. She estimated her average earnings at $4500 weekly.
8 Massey testified regarding the incident and her account is accepted as correct by the
undersigned, [Spurlock] said "'she refused to pack by me'; He [Walden] says, 'Well
all right, we will just move you,' and he turned around and asked me, lie says-Does that
suit you ' And I told him, 'Yes, it suits me fine
9 This is' Hancock's testimony It is corioborated by Hyde who testified "Well, I
sanctioned her [Spurlock's] hiring the first time and the last time "
1152 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Spurlock joined the Union in December, "just as soon as they organized."
About February 10 she was appointed stewardess and given an organizer's card.
Her notification came to her by phone in the plant. Later Union Agent Paul
Sheer came to the plant and gave her a supply of application cards, her organizer's
identification card and a receipt book. Thereafter, as the record discloses, she
wore a CIO button, and was conspicuously active as a union protagonist seek-
ing memberships among the Latin American employees. On Sunday, February
13, she gave a house party at her home Packers, graders and checkers were
invited. Nation was present "to tell them what our union was all about." Very
few of the` packers attended and only two of those present were non-union
employees. They joined the Union that night. On February 19, the day of her
discharge, Spurlock announced a union meeting at Sheer's home on Sunday to
the packers present in the ladies' lounge at 12: 45"p. in. Spurlock's announce-
ment to the packers precipitated a heated exchange of opinions regarding
unionism. The incident is treated in detail below.
Spurlock's union membership and activities were admittedly known to the
respondent's supervisors. When she applied for a 'position Spurlock talked to
both Walden and Maxwell. She testified, without refutation, that Walden knew
that she was a union member at that time Foreman Maxwcll would possess
similar -information since he was a member of the Union. Spurlock assented
to a question in cross examination reading: "Isn't it a fact that on one or more
occasions you. told them [the packers] that you were a very good friend of Mr.
Walden's and had known Mr. Maxwell for a long time?" On the day she
was hired Walden and Maxwell referred Spurlock to Hyde. They explained to
her later, "That they would rather Mr. Hyde would do the hiring, especially
because I was a union member and there was one thing about it, they wouldn't
,be involved." Hyde was asked ""when did you first find out that Opal Spurlock
was a member of the Union?" He replied: "The day she started to work."
He added, "She told me that herself."
Burnell McElhaney was hired as a packer on or about December 10, 1943.
Hyde testified that he had "promised her a job through her mother months
before she started to work" She had had seven years'previous experience as
a fruit packer. The record contains no complaints as to the quality of her work
as a packer. McElhaney presented -a statement of her weekly earnings while
in respondent's plant. Omitting the two days pay for Friday and Saturday
of her final week, her weekly checks averaged over $50.00.
McElhaney transferred her membership from the A F. of L. to the Union
about December. 6, 1943. At the time she discussed the matter with the packer
working beside her. ^ She testified further, "and of course I took up for the
CIO -but just to the persons around me, you know. the ones that were beside
me " She attended the union meeting on February 13 at Spurlock's home. A,
second meeting was held at Sheer's home about February 15, for the graders,
checkers and floor help McElhaney took a car load of employees from the
vicinity of the plant to Sheer's home for this meeting." During the last ten
days of her employment she wore a union button, prominently placed on her
clothing, while at work. Hyde learned of McElhaney's union membership as he
testified, "about a month and a half before she started to work".
The events which led up to the discharge of the complainants occurred within
the period of three weeks preceding February 19, 1944. "When it was Just
.a
10 Shortly after this meeting occurred, Hyde questioned Assistant Mechanic Glen Bosley,
during working time, regarding his attendance. Bosley's credible testimony reads • "He
asked me if I went down to the meeting and I told him yes, and he just kind of smiled
and walked off " -
-EDINBURG CITRUS ASSOCIATION 1153
rumored around that there was some union activity" as Killough testified, hey
gave instructions to his foremen as follows:
I told them that they were to keep their hands out of it one way or
another, that they had to run their business out there and whether the
people were members of the union or not they had to go along and do their
jobs and get along but that if they were a member of the union that was
all right, if they were not a member of the union that was all right too.
About a week or ten days before the discharges Killough took advantage of
the assembling of the employees on pay day to state the respondent's attitude
toward unionism. He testified that almost all of the employees were present
and gave the following account of his remarks, which are accepted as true by
the undersigned :
In a few words, it was this: That I had heard some grumblings and rumors
of organization of the Union and I wanted to tell them that in our shed, if
they wanted to join the Union that was all right ; if they didn't want to join
the Union that was all right too They could do what they pleased about it,
but I didn't want them to be taking time off and rtinning around and getting
excited and causing lots of furor ; that if they wanted a Union that was all
right but if they didn't want a Union they didn't have to have it. That was
the substance of it. I didn't say much more then when I talked to my em-
ployees than I have right now.
Hyde gave substantially the same information to the packers. He testified
that practically every packer` that testified in the hearing for the respondent
had asked him whether it would be necessary to join the Union to keep their jobs.
He finally called "all of them" together and "told them we had no objection to
them joining the union but they didn't have, to join the union to keep their job
and so far as anyone threatening them into joining the union, they didn't have to
do it to work there."
After Spurlock received her appointment as stewardess and union organizer,
she campaigned zealously for union members among the employees, speaking
to the floor worker's, who were Latin Americans for the most part, and other
employees In the course of her solicitation, as she admitted in cross-examination,
Spurlock at times talked to Latin Americans during their working time. On
one occasion she left her packer station to solicit the membership of a floor
worker. Her activities attracted the attention of Hyde who, about February 17,"
reprimanded her. His testimony as to the incident, which is accepted as true by
the undersigned, reads as follows :
I never talked to any of the employees individually regarding the union
other than when I talked to, Opal about her soliciting members, which she,
Opal, admitted she did, on my men's time, and that was what I meant when
I told her that I was on the fence about her. I never had any reason for fight-
ing the union in any way, shape or form, and I told her that merely because
she was=and I had complaints from other boys that worked with the men
that she would call them off and talk to them ; I had complaints about her
talking. to. these employees -and keeping them away from their work for a
few minutes at a time; I don't think it was for long but it was continuous
there after they made her the stewardess particularly, why, that was the
biggest thing I think that she did for most of the day, was move here and
there amongst them and try to organize. In other'words, she was organizing
v Spurlock testified that this incident occurred "a couple of days before" the discharges.
601248-45-vol 57-74
1154 DECISIONS' OF NATIONAL LABOR RELATIONS BOARD
on my'time and as far as she was concerned, that made me no difference, but
as far as,the men that I was paying by the hour-she worked by the piece
and where she didn't make anything it didn't matter, but the other people
were getting paid by the hour and they belonged on the job at all' times. If
they wasn't doing anything but just waiting fora stack of fruit to be picked
up, that was their job and their place was 'there, not off talking to her
about anything, even if it was about a ballgame.
The testimony of Hyde and Spurlock agrees in stating that she acknowledged'
her fault and promised to cease soliciting during working time In enforcing
such a rule the respondent was within its legitimate authority'as recognized by the
Board 12 Spurlock testified that she obeyed Hyde's instructions and did not there-
after solicit in working time. Hyde declared that she c ntinued the practice.
However, the matter was not repprted to Killough who was responsible for the
termination of her employment acid (lid not affect that decision.
Spurlock testified that, Hyde asked further "who gave me that job, him or
the union." Thereafter he walked away but came back to say. "I am sorry., I
didn't mean to discriminate 'against your union." Hyde was asked in direct-
examination as a witness for the respondent whether he used language, as alleged
in the complaint as follows • "Who in the hell give you this job-the Union or
me? - - - Ethel [Opal], I didn't mean to be discriminating against your
Union - - I want you to know that I am on the fence. I don't want you cornering
off any of my boys workiing by the hour, whispering about the Union, this thing,
that thing and the other " Hyde replied, "the substance of the conversation was
as you put in there. I did use that term, I-asked her who hired her, me or the
union, because she was putting in. at that time, more time with my men talking
to them about something-I presumed it was the union" because I knew at that
time, she was the organizer and she had been notified by Mr. Nation at that time
that she would become the organizer. She had had a letter from the Union stating
that.she had been made stewardess . . .'and she apologized and admitted that
she had been taking up some of these men 's time and said she would not do it
again
About 12: 45 on February 10, the date of the discharge, Spurlock came to the
ladies' lounge and announced a union meeting for the following Sunday. Her
testimony is that she merely asked them if they would "like to join our union."
Whereupon, "they hit the ceiling. They said an awful lot'of things; they finally -
worked up such a good mad that they- wanted to beat me up and run me out
and have me fired."
Several of the women packers testified and the undersigned finds, that in sub-
stance Spurlock on coming to them said: "Well, girls, I just want to tell you that
we are having a union meeting tomorrow, Sunday, at Paul Sheer's at 10: 00
o'clock and I want all you, girls to come because you are going to have to join
this union before Monday They are bringing a contract up here Monday for
the Company to sign and if they sign the contract and you haven't already joined
the Union, you will be out of a job 1114
Self described the' packers', discussion following this announcement. Her testi-
mony reads :
11 See Matter of Peyton Packing Company, Inc., and 'Ainalgantated Meat Cutters 'and
Butchers Workmen of N. A. , A F. of L, Local #600, 49 N L R. B 828
11 Spurlock testified that Hyde asked at the time whether she was talking about the
Union and that she'told him that she was
14 This quotation is from the testimony of packer Pauline Self . Several of respondent's
Witnesses corroborated her statements that Spurlock warned that union, membership would
be essential to continuance as employees. -
l
EDINBURG CITRUS ASSOCIATION 1155
So I spoke up and told her that I didn't think we would be out of a job if,
we didn't join the Union before 'Monday and that we didn't have to go to the
meeting ,the next day to find that out.' Well, several of us had our say, that
we didn't have any particular objections to the Union but we didn't w=ant to
join the Union until we saw what the Union was going to turn out to be and
not be like the one we had before where they were all rats and scabs and so
forth and so on, and everything else dirty you could think of; that after the
Union proved that it could be what they wanted it to be ,nd what it should
be if it was going to be a packers' union, that then we would join it, and
that we were not going to be forced into it because they^got a bunch of
Mexicans or anybody else to join it and try to force its into it Well, we all
had our little say and we went on out to work-which she should have done a
few inintites before she did because she, should have been one there in her
place then.
Self then proposed that a committee consult with Killough and ask hiin whether
he would discharge both Spurlock and McElhaney if a petition were presented to
him signed by a uiajority,of'the packers asking such action. The packers present
authorized Self and Helen Messenger to consult Killough What happened at
the interview was freely stated by Self who testified as follows:
A 1 went in, another packer and I, and I said, "Mr. Killough, could you
give us a little of your time?" He said, "Yes."
I said, "Well, we have come in to talk about a couple of packers out there
on the slued who have been causing such a disturbance and 'unpleasantness
among its packers that they are all in such a nervous state that they couldn't
work " After the time when one of these arguments would come up over the
big fruit, we would all get to talking about it and get mad about it. And I
told him about her coming in there at 1: 00 o'clock and telling us about
this-
Q Tell us just what you told him about that.
A I told hun she came in at 1 :00 o'clock and told us they were having a
Union meeting the next day at Paul Sheer's home at 1 :00 o'clock and we
should be there and see what was doing on and listen to Mr Nation's talk;
that she told its we should join that Union-we would have to join it-if
we wanted to keep the job, that they were bringing up a contract on Monday
for the employers to sign and after it.was signed we would be without a
job if we weren't in the Union.
Q What did Mr Killough say?
A He said we never had had to belong to the Union yet to work in that
shed I asked him if we got up a petition and the packers signed it-that
we would not work with these girls any longer the way they had been
doing us-it it would have any effect, and he said, yes, it would ; that if
we intended to quit because we couldn't get along with two packets that
he wasn't going to let eighteen, packers quit just because they couldn't
work with i wo,others.
Messenger's testimony was both less complete and less frank. She professed
not to remember that they had told Killough about the happenings in the ladies'
lounge just preceding the interview Her testimony as to this interview with
Iiillough was ei iifined to the single question whether Killougli would discharge
Spurlock and McElhaney if a petition were presented, and his answer.
1156 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Killough, hoi ever, definitely corroborated Self's version. His testimony re-
garding the interview reads : _
A. .1 am not quite sure of what was said. Those girls came in there
and they were all excited and both'of them were talking at once and you
know how that would be. 'They quieted down a little bit and during that
time I thinl, they, had mentioned the Union more or less but the upshot
of the convi rsation was that I wanted to know. wanted them to give me
some concrete evidence of what they were going to do. if they were asking
me to fire some of my employees or what.
In cross-examination Killough was asked what was said about the Union.
He replied :
f am not sure but I think the little girl, Miss Helen [Messenger], said:
"One of these girls keeps questioning me about going into the Union and, by
God, I don't want to join any Union " I do remember these words because
she made it very forcible, and I said, "That is your own privilege, to do
what you want to about it."
Self and Messenger returned to the ladies lounge and reported to the packers
present that Kiliough would discharge Spurlock and McElhaney if a majority
signed the proposed petition. Self then wrote, with suggestions as to wording
from the other packers, the following document: -
Feb. 19, 1944.
We, the undersigned, packers of the Edinburg Citrus Ass'n, do hereby
declare that the following packers, Opal Spurlock and Burnell McElhaney
are and have been, since their period of employment ion this shed, creating
such a state of disturbance & unpleasantness that we no refuse to work
with them.
Eighteen packers signed during the afternoon. About 4: 30 one of them,
Werlihe Couch,1i carried it to Killough in his ,ofhce. Nothing of significance was
then said. Seven packers did not sign the petition: the two complainants,
two who were newly hired, two others were known to be particular friends and
neighbors of McElhaney, and Mary Meliza who was ill and absent . Meliza,
Spurlock and AleElhaney were the only union members among the packers.
About 4 o'clock that afternoon operations were temporarily discontinued
while a change over to a new lot of fruit was made. At this time Hyde spoke
to the packers assuring them that it was not necessary to join the Union to
hold their jobs. Spurlock joined the group whereupon Hyde accused her of
putting pressure on the packers to join the Union. She assured Hyde that the
Union did not want forced membership. In the course of the discussion Spurlock
claimed that the Union had over 51 percent of the employees organized. When
Hyde expressed doubt, Spurlock promised to show him and proposed a wager
of beer to be paid by the one proven mistaken Hyde was asked, in direct-
examination, as a witness for the respondent, whether at this time he had said
to Spurlock, as alleged in, the complaint :
I want you to quit insisting on my packers joining that union. You've got
no right to talk to them on this shed. -they were let down once by the
union and what's more before you know it these Mexicans will have your
jobs-just what can a union do to help the workers here?-My packers
around here can borrow money at any time. The CIO wouldn't do that
for you. If the CIO comes in the Mexicans will soon have your job
15 This name is freugently erroneously spelled Werelene Couch in the transcript of
testimony.
EDINBURG CITRUS ASSOCIATION 1157
Hyde's reply was:'
I don ' t remember just what I said but we had quite a little discussion
at that time about-it was something pertaining to that. That was after
this big hullabaloo they had the day they were fired in the ladies i rest
room, and a fter she ha' told me she wouldn't use tactics or methods she
was using in telling her people that they had to do a thing but would
call them if they saw fit. I told her that or something similar to that.
(Italics added.)
Respondent 's witness Self testified regarding Hyde 's controversy with Spurlock
that afternoon . Self had joined the group just in time to hear Spurlock chal-
lenge Hyde relative to the wager of beer. Hyde thereafter questioned Spurlock
about procedure in hiring employees under collective bargaining relations.
Hyde assumed that hiring would be subject to a Union veto. Self testified that
Hyde further said:
You are going to get so many Mexican boys In this- Union, Mexican
laborers in this Union that you are going to have so many in there that
they will have a majority . . . When they vote for something, what ever
one of the Mexican boys votes for, the rest of them is going to vote for that,
and the first thing you know they will be ruling the Union and will be
trying to take your job
Unrefuted testimony by McElhaney , accepted by, the undersigned as true
and correct regarding statements made to her by Hyde that afternoon, supports
this allegation of the complaint . Excerpts from her testimony read as follows:
He merely stated the fact that if a union came in we would soon have
Mexican packers in our place , and I told him-I pointed out to him that
there were Mexicans working in the Court House here and also that some
time or am- ther we had gone to school with Mexicans.
0
He made the remark-Fle,was throwing it against the Union the CIO.
* * * * * * *
He said that if we ever wanted to borrow any money that they just sort
of ignore you, but he let me know ' that the packers there had borrowed as
high as $500100 from the Company.
Well, he just made that point , the fact that if we wanted to borrow any -
money from the C . I. O., we just the same as couldn't.
In cross-examination Hyde gave testimony which in effect corroborated both
McElhaney and Spurlock. He admitted that on the afternoon of the discharges
about ' 4 00 or 4: 15 he had talked with McElhaney about the Union. His testi-
mony reads as follows
c - ^
Q. Was that the time that you had reference to that it is claimed a state-
ment similar to this was made : "If the CIO comes in, the Mexicans will soon
have your job?"
A. I was talking to Mrs. McElhaney at the time I said something similar
to that, I don't know just what I did say. I was more or less aggravated
about the thing for the simple reason that Miss Spurlock did continually
threaten the employees , the packers , when she knew their attitude , she knew
that they were not interested in a union . I think practically every one of
them told her that, and I didn't like the attitude she had taken towards them
or the way she worked with them in regard to the methods she used or any-
thing else . I didn't like the way she approached them and forced the mat-
1158 DECISIONS OF, NATIONAL LABOR , RELATIONS BOARD
ter; she would tell them if they didn't do so and so they couldn't work there;
because some of these employees have worked'there for seven of eight years
and at one time they were all union Members that we have there and nobody
ever molested them for any reason. ,If they wanted to belong to the union,
that was all right, but nobody ever told them to or not to, and that has always
been my understanding with the management, that we would endeavor to
try to not intimidate anybody out there from having their own way as far
as union activity was concerned.
After receiving the petition from Couch, Killough examined the signatures
to some extent and satisfied himself of their validity. He was familiar with the
signatures of the packers since it was the respondent's practice to have pay rolls
signed'weekly. Thereafter Killough told Maxwell "to tell these two girls [Spur-,
lock and McElhaney] that the end of that day would terminate their work at
.the Edinburg Association " At about this time Spurlock and McElhaney first
heard of the petition. Maxwell told each of the complainants that lie "hated
to tell them this-but they were fired." On their inquiring, he informed them that'
it was 'on, Killough's instruction. When they asked for explanation as to the
reason Maxwell responded, "I don't know." The complainants then went to
Killough. On entering his office Spurlock asked, "Is it true we are fired 9"
Killough answered affirmatively. On their further inquiry as to the reason
Killough responded : "I imagine you know what for." Spurlock then showed
Killough her union organizer's card and McElhaney called attention to her
C. I. O. button: Killough asked, "Well, what does these have to do with what
you asked of me?" and assured them that their membership in the Union "cer-
tainly wouldn't make any difference one way or another."
At the union meeting the next day the complainants reported their discharges
to Nation. He called Killough on Monday, asked the reason for the discharges.
Killough refused to give Nation any reason When Nation suggested that charges
would be filed with the Board unless the complainants were replaced on the pay
roll by Tuesday, Killough retorted that, "They were fired and were still fired." is
On Monday also the complainants came to the plant for their final pay and for
their release slips. On this occasion Spurlock asked Hyde to state the reason for
the discharge on the availability slip "so that our next employer would know
* _* * why we wasn't working there and that we were union members." 'Hyde
said: "That won't be necessary, just let them call me."
The foregoing account clearly demonstrates that Self and Messenger made
clear to Killough that the packers' grievances against Spurlock and McElhaney
were based, in part, upon their unwelcome persistence in union activity and
solicitation. With this knowledge Killough agreed to discharge' the complainants
in case a petition so requesting, signed by a majority of the packers, should be
presented to him The packers who signed did so with full knowledge that Kil-
lough had made this promise to their committee women Under these circum-
stances the undersigned does not find it necessary to set forth at length the further
grievances voiced as witnesses by the packers, growing out of work incidents
which for the most part arose out of the plant's unique rotation system Fifteen
of the eighteen packers, who signed the petition, testified at the hearing. The
three remaining had moved from Edinburg, and were not available.17 Of the 10
who testified, seven 18 evinced no personal knowledge of untoward actions as pack-
10 This account is from Nation's testimony Killough confirmed his version stating
"I don't remember anything that was especially wroing with what he testified."
17 Werline Couch, Nora Thompson and Nora Smith.
18 Juanita Beck, Polly Longshore, Alice Cowenberg, Clara Hunt, Gladys Mae Sauer, Melia
Schwappach and Irene Jetton.
EDINBURG' CITRUS ASSOCIATION / 1159
ers committed by either Spurlock or McElhaney. Rosie Slovacek's only criticism.
was in regard to an almost completely packed box from which McElhaney removed
Slovacek's ticket and substituted her own on completing it. Spurlock was accused
by Cline of taking a packing stand which Cline had procured at considerable pains.
Simmons testified that Spurlock was selfish in handling the size stamps, which,
packers place on the filled boxes, and did not so place them that they were equally
available to Simmons Both Spurlock and McElhaney had failed on occasion to,
call additional packers because they'were engrossed in the packing of large sized
fruit. Qn one of these occasions Spurlock was talking to a checker and "didn't
have her mind on her business " Spurlock was also accused of illegitimate "jump-
ing of the belt" in an over ambitious desire to get a favorable position to pack.
Competent evidence in the record establishes that similar actions, of which other
packers were guilty, occurred both before and after the period of employment
of the complainants Jealousies and heartburnings resulting aie inevitable and
chargeable in part, to the rotation system used- and to the failure of the piece
rate system to adjust compensation to the effort and time required to pack the,
different sizes of fruit. Further, difficulties arise because of the failure of Fore-
men Walden and Maxwell and of Assistant Manager Hyde to exercise close super-
,vision over the packing process. They do not, in general, intervene to see that
packers promptly find their proper places as the volume of fruit falling in bins
,for the different sizes requires. Instead such regulation is left to the initiative
of individual packers. Solution of resulting "disturbances and unpleasantness"
is also entrusted to the packer's group. As stated by Self, "We usually try to settle
that among ourselves if it is possible ".
A criticism frequently expressed by the packers in their testimony was their
strong disapproval of the fact that Spurlock in prosecuting her duties as union
organizer frequently talked with Latin American employees. Thus Messenger
when asked, in cross-examination, "Now what acts of unpleasantness down there
did you packers complain of?" answered: "Well, what I didn't like about it, why
they were always talking to the Mexicans and the rest of us girls don't do,
that; Opal Spurlock did X19 In general the packers testifying denied knowledge
of the subject discussed by Spurlock and the Latin American employees. Sim-
mons, however, who testified that Spurlock "always 'caused so much talk and up-
roar . . . that everybody was discussing her all the time," and that she was-
"here and yonder and back somewhere talking to some Mexicans or someone
else", admitted that the talk Spurlock was doing was "mostly" about the Union.
Spurlock's position as stewardess and union organizer was generally known.
Hyde, as indicated above,-was in no uncertainty as to the subject matter of her-
discussions The'undersngned finds, as a fair inference, that the packers criti--
cism of Spurlock and McElhaney and desire to oust them from' the, plant was,
motivated in part by knowledge of their successful solicitation of the adher-
ence of the Latin American employees to the Union and by apprehension lest
a union including them as members should be established in the plant2° ,
1D Similarly Cline testified : -
Well we have always had a pretty good bunch of packers and we never do associate-
with Mexicans.
# k • 0 4 f t
There are,some Mexican working there and we don't usually stand around and have-
conversations with them
"Packer Melva Sch«appach testified that she observed both Spurlock, and McElhaney
wearing CIO buttons and that Spurlock asked her to loin the Union She stated "I didn't
know which one was the omganizer." Sehwappach was.dne of the signers of the petition.
I
1160 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Concluding Findings
I
The record shows that the action of the packers in petitioning for the dis-
charge of Spurlock and McElhaney was taken immediately after "heated" union
discussion was aroused by Spurlock's invitation to the Union meeting It is
clear that the packers' grievances against the complainants were based in
part on'their union activities:' Self and Messenger so stated to Killough. With
this knowledge in mind he pi;omised that he would take the desired action if
presented a petition signed by a majority of the packers. The signers knew of
this promise when they afflxgd their signatures. Hyde's anti-union utterances
on the afternoon of February 19, ,1944,` narrowly preceding the discharge of
the complainants, were made within the hearing of the employees generally as
well as to Spurlock and McElhaney individually. Hyde was assistant man-
ager of the plant and the respondent is responsible for his acts and utterances.
After considering the record and the demeanor of the witnesses the under-
signed concludes and finds that the respondent has discouraged membership in
a labor organization by discriminating in regard to the hire and tenure of employ-
ment of Opal Spurlock and Burnell McElhaney.22 By such action, by the anti-
union statements of Assistant Manager Hyde on the afternoon of February 19
and by Hyde's questioning of Bosley as to his attendance at a Union meeting,
the respondent has interfered with, restrained and coerced its employees in
the,exercise of the rights guaranteed in Section 7 of the Act.
C. Other alleged acts of interference, restraint, and coercion
On the day • following the Union meeting at Spurlock's home- Foreman Max-
well questioned her regarding the success of the meeting She told him that
results were "fine" and they had gotten 38 members. On cross-examination
Spurlock admitted that Maxwell was a member of the Union at the time he
asked the question. Under these circumstances and absent a showing that the
information acquired was passed on' to other respondent officials the undersigned
attaches no significance to this incident.
21 Self was asked : _
What incident was it that happened the last time that caused you to draft this
petition ? -
She answered :
That was the day that I told you about her coming into the ladies' lounge and tell-
ing us about the Union meeting the next day and that we would all have to go.
Later after testifying that she had only complained to Killough about Spurlock and Me-
Elhaney on the one occasion, Self gave the following testimony :
Q. And that complaint was regarding what was said in there in the ladies' lounge?
A No , that wasn't all that brought it up Like I said ...
Q. Well, was that part of it's
A.' That was some of it, of course.
12 Respondent's brief argues that the discharges were not motivated by the complainant's
Union membership and activity since "there were other union people working for the
respondent not discharged " The undersigned, in accordance ,ith a recent Board decision,
finds this contention without merit The Board, under similar circumstances, said: "The
respondent contends that any discriminatory motive is 'rebutted by the fact that the
Union's temporary president and some of its other members were retained after the March
discharges and by the fact that many employees . . were hired with knowledge that they
were members of one union or another We find no merit in these assertions. Clearly, a
complete house clearing of union members and supporters is not essential to a finding that
some employees have been discriminated against." See Matter of Stewart Warner Cor-
poration and United Steelworkers of Amerioa,'Local 2937, C 1 0., 55 N. L. R. B. 108.
EDINBURG CITRUS ASSOCIATION .1161
,Sometime in :February the laborers in the receiving department came to work
one morning displaying CIO, buttons on their hats or garments. W. H. Jones,
foreman of the department and in charge of perhaps a dozen workers, inquired
where the buttons were procured and what authority the employees had to wear
them. The workers answered that they were received from the Union which
had authorized their wearing. Jones took his hat from a Latin American worker,
known as Willie, with intent to examine the button Willie jerked the hat from
Jones', hand and replaced it on his head. In the scuffle the button fell in a fruit
box. Later Willie retrieved it and replaced it on his hat. Willie„ although
working in the plant, was not called by the Board as a witness. Jones testified
that he and Willie were good friends and that the incident had not disturbed
their relationship. He stated that the occurence happened more in "a playful
mood than anything else" It is further in evidence.that Jones told employee
Albert H. Woodruff, "You boys better pull your pins off."
Killough investigated the incident at the time and warned Jones, saying : "You
meant this only in playfulness but' you will have to be careful." He further
instructed Jones that "it was perfectly all right to wear them, if they wanted to
wear buttons, it was all right, that is their privilege." Woodruff, a Board witness,
testified and the undersigned finds, that the 'employees ceased to wear Union
'buttons about three` days later because, as he testified :
Us boys just agreed to one another, in case that it might be contrary to
the other boys that might be in the plant that didn't belong to the union,
maybe it would be hard to get along with them or something of that kind.
In view of the prompt action by Killough and since nothing in the record shows
that his instruction to Jones was not effective, the undersigned, after ,considera-
tion of the complete record and the demeanor of these witnesses will recommend
that so much of the complaint as alleges that the respondent forcibly removed
union buttons from the clothing of members of the union he dismissed.
IV. THE EFFECT OF IHE UNFAIR LABOR PRACTICES UPON COMMERCE
L
It is found that the activities of the respondent set forth in Section III, above,
occurring in connection with the operati,ons,of the respondent described in Sec-
tion 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
land obstructing commerce and the free flow of commerce.
V. THE REMEDY
Having found that respondent has engaged in certain unfair labor practices the
undersigned will recommend that it cease and desist therefrom and take certain
affirmative action in order to effectuate the policies of the Act.
It has been found that the respondent discharged Opal Spurlock and Burnell
McElhaney for the reason that they engaged in concerted activities or joined and
assisted a labor organization for the purposes of collective bargaining or other
mutual aid and' protection. It will be recommended that the respondent offer
Spurlock and McElhaney immediate and full reinstatement to their former or
substantially equivalent positions without prejudice to their seniority or other
rights and privileges they may have. It will be further recommended that
the respondent make Spurlock and McElhaney whole for any loss of pay they,may
have suffered by reason of their discriminatory discharge by payment to them of
a sum of money equal to the amount they normally would have earned as wages
1162 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
from the date of the discharge to'the date of the respondent's offer of reinstate-
ment, less their net earnings 23, during said period.
CONCLUSIONS' OF LAw
1. Local 35, Texas Fruit and Vegetable Workers Union, UCAPAWA-CIO, is
a labor organization within the -meaning of Section 2 (5) of the Act.
2. By discriminating in regard to the hire and tenure of employment of Opal
'Spurlock and Burnell McElhaney, thereby discouraging membership in a labor
',organization, the respondent has engaged in and is engaging in unfair labor
:practices within the meaning of Section 8 (3) of the Act.
3 By interfering with, restraining 'and coercing its employees ,in the exercise
of the rights guaranteed in Section 7 of the Act, the respondent has engaged
in and is engaging in unfair labor practices within the meaning of Section 8 (1)
-of Ithe Act.
4. The aforesaid unfair labor- practices are unfair labor practices affecting
commerce within the meaning of Section 2 (6) and (7) of the Act.
- RECOMMENDATIONS
Upon the basis of the above findings of-fact and conclusions of law the tinder-
signed recommends that the respondent, Edinburg Citrus Association, Edinburg,
'Texas, and its officers, agents, successors, and assigns shall :
1. Cease and desist from :
(a) Discouraging membership in any labor organization of its employees by
discharging or refusing to reinstate any of its employees or by discriminating in
any other manner in regard to the hire and tenure of employment or any term or
,,-condition of employment of its employees ;
(b) In any other manner interfering with, restraining, or coercing its
employees in the exercise of the right to self-organization, to form, join or assist
labor organizations, to bargain collectively through 'representatives of their own
-choosing, and to engage in concerted activities for' the purposes' 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 undersigned finds will
•effectuate the policies of the Act:
(a) Offer Opal Spurlock and Burnell McElhaney immediate and full reinstate-
ment to their former or, substantially equivalent positions without' prejudice to
their seniority or other rights and privileges ;
(b) Make whole Opal Spurlock- and Burnell McElhaney for any loss of pay
'they may have suffered by reason of the respondent's discrimination against them
by payment to them of a sum of money equal to the amount they normally
would have earned as wages during the period from the date of their discharge
-to the date of the respondent's offer of reinstatement less their net earnings"
during such period.
23 By "net earnings" ' is meant earnings less expenses , such as for transportation, room,
,and board, incurred by an employee in connection with obtaining, work and working else-
where than for the respondent, which would not have been incurred but for his unlawful
discharge and the consequent necessity of his seeking employment elsewhere See Matter
of Crossett Lumber Company and United Brotherhood of Carpenters and Joiners of Amer-
ica, Lumber and Sawmill Worke,s Union, Local 2590, 8 N. L R B 440 Monies received
for work performed upon Federal, State, county, municipal, or other work-relief projects
shall be considered as earnings See Republic Steel Corporation v. N. L. R. B, 311 U. S. 7.
24 See footnote 23, supra.
EDINBURG CITRUS ASSOCIATION 1163
(c) Post immediately in conspicuous places throughout its plant at Edinburg,
Texas, and' maintain for a,period of at least sixty (60) consecutive days from
the date of posting, notices to the employees stating (1) that the respondent
will not engage in the conduct from' which it is recommended that it cease
and desist in paragraph 1 (a)' and •(b) of these recommendations; (2) that
the respondent will take the affirmative action set forth in paragraph 2 (a) and
(b) of these recommendations; and (3) that the respondent's employees are-free
to .become or remain members of Local 35, Texas Fruit and Vegetable Workers
Union, UCAPAWA-CIO or any other labor organization, and that the respondent
will not discriminate against any employee because of his or her membership
in any such organization ;
(d) File with the Regional Director for the Sixteeilth Region on or before
ten (10) days from the receipt of this Intermediate Report, a report in writing
setting forth in detail the manner and form in which the respondent has com-
plied with the foregoii g recommendations
It is-further recommended that, unless on or before ten (10) days from the
receipt of this Intermediate Report the respondent notifies said Regional
Director in writing that it will comply with the foregoing recommendations
the National Labor Relations Board issue an order requiring the respondent to
take the action aforesaid
It is recommended that so much of the complaint as alleges that the re-
spondent forcibly remove union buttons from the clothing of the employees,
be dismissed. --
As provided -in' Section 32 of Article II of the Rules and Regulations of the
National Labor Relations Board, Series 3, effective November 26, 1943, any
party or counsel for the Board may within fifteen (15) days from the date of
the entry of the order transferring the-case to the Board, pursuant to Section
32 of Article II of the said Rules and Regulations, file ivith the Board,
Rochambeau Building, Washington, D. C., an original and four copies of a
statement in writing setting forth such exceptions to the Intermediate Report
or to any other part of the record or proceeding (including rulings upon all
motions or objections) as he relies upon, together with the 'original and four
copies of a brief in support thereof. Immediately upon the filing of such state-
ment of exceptions and/or brief, the party or counsel for the Board filing the
same shall serve a copy thereof upon each of the other parties and shall file a
copy with the Regional Director. As further provided in said Section 33,
should any party. desire 'permission to argue orally before the Board request
therefor must be made in writing to the Board within ten (10) days from the
date of the order transferring the case to the Board.
CHARLES E. PERSONS
Trial Examiner
Dated May 20, 1944.