North Whittier Heights C. Ass'n v. National LR Board

• Decision Date: 07 February 1940
• Docket Number: No. 8819.,8819.
• Citation: 109 F.2d 76
• Parties: NORTH WHITTIER HEIGHTS CITRUS ASS'N v. NATIONAL LABOR RELATIONS BOARD.
• Court: U.S. Court of Appeals — Ninth Circuit

109 F.2d 76 (1940)

NORTH WHITTIER HEIGHTS CITRUS ASS'N v. NATIONAL LABOR RELATIONS BOARD.

No. 8819.

Circuit Court of Appeals, Ninth Circuit.

January 12, 1940.

Rehearing Denied February 7, 1940.

Ivan G. McDaniel, of Los Angeles, Cal., for petitioner.

Charles Fahy, Gen. Counsel, Robert B. Watts, Associate Gen. Counsel, and Ruth Weyand, Mortimer B. Wolf, Samuel Edes, and Owsley Vose, Attys., National Labor Relations Board, all of Washington, D. C., for respondent.

Before WILBUR, MATHEWS, and STEPHENS, Circuit Judges.

STEPHENS, Circuit Judge.

Charges by the Citrus Packing House Workers Union Local No. 21,091, were laid before the National Labor Relations Board, that North Whittier Heights Citrus Association was guilty of unfair practices by interfering with, restraining and coercing twenty-eight employees in the exercise of the rights guaranteed under Section 7 of the National Labor Relations Act 49 Stat. 449, 29 U.S.C.A. § 151 et seq., sometimes herein referred to as the "Act", and sometimes herein referred to as the "Wagner Act", by discouraging membership in a union and by discriminating in regard to hire and tenure of employment of such employees in closing its plant August 14, 1937 and not recalling these employees to work when the plant reopened August 24, 1937. Thereafter the Board issued its complaint in regard thereto, the Association filed its answer, and a hearing was had. At the opening of the hearing the Association filed its motion to dismiss the proceedings upon the ground that its employees were agricultural laborers and therefore exempt from the Board's jurisdiction, and that its operations do not directly burden or affect interstate or foreign commerce. The hearing proceeded and the Board made and filed findings and conclusions and its order to cease and desist certain unfair labor practices and to reinstate twenty-seven of such employees, and ordered certain additional affirmative action. The complaint was dismissed in so far as it contained allegations of unfair labor practices with respect to O. W. Rudick, one of the twenty-eight employees mentioned in the complaint. The Association petitioned this court to review the proceedings and to set aside the order, to which the Board filed its answer and affirmatively requested enforcement of the order. Hereinafter the Association will be designated as the "Petitioner", and the National Labor Relations Board as the "Board".

There is competent and substantial evidence to support the following factual account of the proceeding. Petitioner is a corporate body organized and existing under the California Agricultural Products Marketing Act Act No. 146, General Laws of California with a membership of about 200 citrus fruit growers. It is engaged in the business of receiving, handling, washing, grading, assembling, packing and shipping the citrus fruit of its members and others for marketing under a marketing contract with the Semi-Tropic Fruit Exchange, which has a marketing agreement with the California Fruit Growers Exchange. Through these agencies practically all of the fruit handled by Petitioner moves directly from its plant to vehicles for transportation under the direction of the California Fruit Growers Exchange into interstate and foreign commerce.

Employees of Petitioner are generally persons residing at no great distance from the packing house and most of them have worked in the packing house for many years. The work is seasonal and dependent upon fruit condition in orchard, and consistent with such influences it has been the practice of Petitioner to give notice of suspension of operations and notice when about to reopen.

During the latter part of July, 1937, some agitation for wage increase was going around among the employees and there was some wage increase granted, but there was no general increase. The union heretofore mentioned was formed during this same month and the activity of employees toward that end was met with disapproval by the plant manager. Early in the succeeding month the manager issued a written notice to the employees that they need not join a union under coercion and that they were not under the terms of the Wagner Act. One of the employees was warned in his home by his superintendent to quit talking union in the packing house and quit going to union meetings. On the night of August 10th, 1937, a stranger was excluded from a union meeting and he immediately joined the manager who had been waiting outside in his automobile. On July 30th the manager shook his finger in employee Joseph Matlock's face and warned him that his wife's activity in securing membership in the union must be stopped or that he would "clean house". There were other acts attributable to the packing house management which tend to the conclusion that it was attempting to prevent the formation of the union.

On August 13th, 1937, Petitioner through its manager issued the following signed notice:

"To All Employees:

"Due to conditions beyond our control, orange packing will be discontinued indefinitely at 12:00 o'clock noon, Sunday, August 14, 1937. The lemon house will also shut down for an indefinite period beginning at the same time. Therefore it will be necessary that all employees in all departments of both the orange and lemon division be laid off until work is resumed, and are notified to return.

"Upon your request, your pay in full may be obtained at the office Monday afternoon."

The plant was closed at noon of the next day, at which time there were 118 employees working in the plant. Work was resumed August 23rd, but not all of the employees were notified to return. No grader had joined the union and no grader among the laid off employees failed to be recalled to work. Twenty packers had joined the union, and while all of the nonunion packers had been recalled but three of the union employees were recalled to work. There were twenty lemon packers, of whom six had joined the union. No union employee in the lemon division of the packing house was recalled, while thirteen of the fourteen non-union employees were recalled. No other union employees were recalled to work in the packing house. Thus twenty-seven of the thirty-two union employees were not recalled, while only eight of the eighty-two non-union employees were not recalled, and some of the eight were later recalled to work. At the reopening of the plant seventeen, and shortly thereafter seventeen more nonunion new employees were put to work. No additional union men were put to work.

Mrs. Shermer, head of the orange packing department, testified that there were good workers in the union who were not recalled. Additional detailed facts may be related under the different points raised in the case.

The Board's order was that the petitioner

"1. Cease and desist:

"(a) From interfering with, restraining, or coercing its employees in the exercise of the rights to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, or to engage in concerted activities for the purpose of collective bargaining or other mutual aid and protection, guaranteed in Section 7 of the Act.

"(b) From spying, maintaining surveillance, or employing any other manner of espionage over the meetings or meeting places and activities of the Citrus Packing House Workers Union, Local No. 21091, or any other labor organization of its employees.

"(c) From discouraging membership in Citrus Packing House Workers Union, Local No. 21091, or any other labor organization of its employees, by discharging or refusing to reinstate any of its employees or in any other manner discriminating in regard to their hire or tenure of employment or any term or condition of their employment, or by threats of such discrimination."

Petitioner was also ordered to take affirmative action by reinstatement without prejudice to former seniority rights and privileges of all of the employees named in the complaint except O. W. Rudick, and to make them whole as to loss of wages; to post notices as to the cease and desist order; and to notify the Regional Director as to steps taken in compliance with the order.

Petitioner presents its plea for relief under six designated points, and we shall consider them in the order of their presentation in its brief.

Are the Packing House Workers Agricultural Laborers?

The production and marketing of citrus fruits in California have undergone changes as have various other activities in their transition from "one man" affairs to "big business". The public regard for the product itself has changed from that of a pretty and tasty tidbit to that of a standard widely used fruit food. Large acreages, in fact large sections of the State of California, are devoted almost wholly to this horticultural product. In the early day everything connected with the product was done "on the farm". Experience produced better fruit, better fruit created greater demand, greater demand impelled system in handling. Possibly the most marked change in this transition was that of systematic marketing and uniformity in preparation for marketing, and these changes brought about the desirability of separating certain processes from the service of the "farmer" to specialists. The farmer also learned through bitter experience that individual grove product sale to middlemen or through consignment to independent fruit marketers resulted too often in ruin. The vast and comprehensive system which has been hereinbefore briefly alluded to was built up to adequately handle this large industry and to eliminate the practices which were so costly to the growers. Thus the growers themselves have separated from the farm, the work now done in the packing house and with which we are here concerned, and have assigned it to an incorporated organization brought into being by the growers for such particular purpose.

We shall proceed to consider whether or not those employed...