National Labor R. Board v. Grower-Shipper V. Ass'n

• Decision Date: 21 July 1941
• Docket Number: No. 9577.,9577.
• Citation: 122 F.2d 368
• Parties: NATIONAL LABOR RELATIONS BOARD v. GROWER-SHIPPER VEGETABLE ASS'N OF CENTRAL CALIFORNIA et al.
• Court: U.S. Court of Appeals — Ninth Circuit

122 F.2d 368 (1941)

NATIONAL LABOR RELATIONS BOARD v. GROWER-SHIPPER VEGETABLE ASS'N OF CENTRAL CALIFORNIA et al.

No. 9577.

Circuit Court of Appeals, Ninth Circuit.

July 21, 1941.

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Robert B. Watts, Gen. Counsel, Laurence A. Knapp, Associate Gen. Counsel, Ernest A. Gross, Asst. Gen. Counsel, Mortimer B. Wolf, Bertram Edises and Edward J. Creswell, all of Washington, D. C., for petitioner.

George M. Naus, of San Francisco, Cal., and Sidney L. Church, of Salinas, Cal., for respondent.

Before GARRECHT, HANEY, and HEALY, Circuit Judges.

HANEY, Circuit Judge.

Enforcement of an order made by the National Labor Relations Board is sought by it.

Grower-Shipper Vegetable Association of Central California, a California nonprofit corporation, hereafter called the Association, is an association of grower-shippers and handlers of lettuce and other vegetables in Monterey, Santa Cruz, and San Benito Counties, California, making up what is known as the Salinas-Watsonville district. Western Growers' Protective Association, a California non-profit corporation, hereafter called Western Growers, is an association of growers, shippers, distributors, and handlers of vegetables in California and Arizona. Both the Association and Western Growers are respondents in this case. The other respondents are individuals, partnerships or corporations engaged in the Salinas-Watsonville district, and with the exception of five, were members of the Association during the summer of 1936.

The Salinas Watsonville district is the chief source of lettuce shipped in car-lots in the United States. During its season, over 75 per cent of all car-lot shipments of lettuce in the United States originate there. There are about 300 crates of lettuce to a car-lot. Since jurisdiction is conceded to be in the Board, further facts regarding that point need not be stated.

Field crews, which are usually Oriental and Philippine workers, cultivate and eventually cut the lettuce. The lettuce is then taken from the fields in field crates or trailers to packing sheds which are usually located in towns next to railroad sidings and close to ice sheds. At the sheds, the lettuce is cleaned, trimmed, graded, and packed in crates with paper and ice by crews which usually are Americans. The crates are then loaded on refrigerator cars standing on sidings by the sheds, the cars are iced, and the doors thereto are sealed. A different skill is required to pack lettuce than that required in cultivating and cutting it. The wage-scale for the packing employees or shed workers is different from that of the employees engaged in cultivating and cutting the lettuce.

While there is some latitude in the period in which lettuce can be picked, it cannot be left unpicked for more than 3 or 4 weeks after ripening. At the height of the season approximately 3,000 workers are employed in the Salinas-Watsonville packing sheds. However, during the season, which lasts from approximately April 1 to December 1, the amount of employment fluctuates radically, and at any particular shed varies from time to time. As a consequence, a large proportion of the workers are forced to move from shed to shed in quest of employment, and only a few retain work with the same shed throughout the entire season. Between the time when the season ends and another season begins, many of the workers migrate to the Imperial Valley in southern California and to southern Arizona, which enjoy a short lettuce season during such time.

The extremely perishable nature of lettuce, after it is picked, requires that the packing, icing, and shipping proceed without interruption. The process has been so organized that ordinarily lettuce is moving out in refrigerator cars at latest by the evening of the day on which it is picked, but ordinarily it is not more than 3 or 4 hours from the time of receipt of the lettuce at the packing sheds to time of shipment thereof.

The great majority of the respondents, except the Association and Western Growers, pack lettuce grown by themselves, and lettuce which they purchase elsewhere. Five of such respondents pack lettuce grown by themselves only, and three do not grow, but pack lettuce which is purchased from other growers.

Fruit and Vegetables Workers' Union of California, No. 18211, hereafter called the Union, was a state-wide labor organization, formed in 1932, and affiliated with the American Federation of Labor. It admitted to membership all workers engaged in the various processes of packing-shed work from the receipt of the lettuce as it was brought from the fields through the loading of packed crates on freight cars, but did not admit to membership any field or "stoop" workers.

In the summer of 1934, the Union called a strike against various shippers in the district, and an Industrial Relations Board was set up to arbitrate the Union's demands. On October 8, 1934, that board issued its award setting forth the conditions of labor which were to obtain in the packing sheds until September 1, 1935. After negotiation in the summer of 1935, the Union and the Association agreed that the terms of the award should be extended one year to September 1, 1936, the agreement being evidenced in letters exchanged between the Union and the Association.

During the year 1936, there were disputes between the Union and members of the Association, and tension between them increased. The Association employed agents to find out what they could about the Union's programs, policies and activities. The Board did not find that the Union or any of its members knew of such espionage activities of the Association.

The Association throughout the entire summer of 1936 treated the Union as the collective bargaining agent of all the packing employees in the district. It was stipulated that the Union was the collective bargaining representative of a majority of the employees in each shed in the district.

On July 27, 1936, the Association wrote the Union that it was ready to enter negotiations for the conclusion of a new agreement to begin on September 1, 1936. The Association and the Union¹ met on August 6, 1936, at which meeting the Union submitted a proposed contract to the Association containing 52 paragraphs which had been approved by members of the Union. One paragraph provided for recognition of the Union as the collective bargaining agent for all the packing employees, and another provided for preferential hiring, when workers belonging to the Union were available. The meeting adjourned, to convene again on August 12, 1936.

On that day the Association reported that its members at a meeting held previously by one day, had rejected the proposed contract. At the meeting of August 11, 1936, the Association received a power of attorney signed by 72 firms, including some non-members and all but two of the members of the Association, empowering the Association to negotiate for a new agreement as the exclusive agent of the signers. The power of attorney was irrevocable for one year. It was agreed at the meeting of August 12, 1936, that the Association should offer a proposed contract on August 18, 1936. The proposed contract presented by the Association on that day was similar to the existing one but did not provide for recognition of the Union or for preferential hiring. The Union agreed to submit the proposed contract to its members, and the meeting adjourned until August 25, 1936.

On the latter date, the Union reported that its members had rejected the Association's proposal, and had directed it to negotiate only on the basis of the proposal first made by it. The news release issued jointly by the Association and the Union stated that the Union demanded a preferential hiring clause which demand was not subject to bargaining or arbitration. Negotiations were resumed the following day but no agreement was reached regarding the preferential hiring clause.

On August 28, 1936, the Association caused an advertisement to be published in a local newspaper. The advertisement contained headlines as follows: "Workers: Think! Read This Ad — Study The Agreement Did You Have A Chance To Vote On It?" The advertisement stated: that the majority of the workers in the industry were honest, law-abiding, home-loving, hard-working citizens; that the shippers had carefully studied the Union's proposal and had rejected it as being "unfair, un-American, impossible of being lived up to by employers and not a true reflection of the attitude or the desires of the sane, law-abiding element which we believe constitutes the majority of our employees". It asked the workers if they had had an opportunity to read and express their views on either the Union's proposal or the Association's proposal. It also stated:

"Yours is a `democratic organization'. You who make up the sane, conservative, straight-thinking group, for your own sakes, do this:

"Set up your own leadership and committees. Demand that your organization follow the dictates of the majority. Refuse to be dominated by a radical minority, whose `orders' certainly don't come from you. Demand that you be given an opportunity to consider all important problems and most important, demand that you be given the American opportunity of the secret ballot when passing on such problems.

"We the Grower-Shippers, are trying to meet this problem squarely, fairly and honestly. We are earnestly trying to reconcile our problems of operation with yours of employment. You are urged to meet us at least half way, for your own sakes as well as for ours."

There followed a copy of the Association's proposal, following which were statements to the effect that the Union reported to the Association that the Union would not even discuss such proposal, and saying that full discussion of the Union's proposal would be futile unless the Association first agreed to the preferential hiring clause.

On September 1, 1936, when the existing contract...