National Labor Relations Board v. Grower-Shipper Vegetable Ass'n

368 accountability court, expenses court,3 direct in the state which owed a and could present its actions. furnish any impropriety in the foundation for a to it for If, adoption equitable the receiver- on the was limitation which allowance. Such upon clearly its ship reorganization plan, it court in this felt existed a final can be case action, appellants’ and any and was effect which demonstrated that services such court, have, receivership it stated expenses order intended its regard- opinion that it in memorandum continued plan, of their formulated furtherance upon pass proper “to hear shall made a substantial con ed it have claims, reorganization facilitating recommendations tribution in making such proper question proceedings accomplishment of their deemed of an —-the result, payment reorganization rest with allowance then to ultimate re course, is, pre organization federal court”. court dealing equitably cluded from situ remaining question is whether is, question ation at that how time. The under the cir- justified, was District Court ever, one conscience and primarily for the case, refusing to make cumstances reorganization discretion of sound reorganization services allowance court, judgment we will not disturb its court, receivership expenses in obviously matter, wrong.5 unless isit reorganization there ground that no Affirmed. achieved, and, further, that, since been yet plan had been reorganization court, was no adopted in the federal contribution, any, measuring way of previous reorganization n services f t‘he expenses successful culmination proceeding. present against equitable An allowance re NATIONAL RELATIONS BOARD LABOR reorganization ought ceivership assets v. GROWER-SHIPPER VEGETABLE direct, upon grounded some sub

to be ASS’N OF CENTRAL al. CALIFORNIA et stantial, and demonstrable benefit No. 9577. Generally speaking, the debtor’s estate. specific relationship should bear a benefit Appeals, Circuit Court Ninth Circuit. purpose for the services were July 21, 1941. give court rendered. A is not bound incidental or consideration mere col have may lateral benefits that Thus, resulted. declared, previously have re we under section organization proceedings 77B Bankruptcy Act, now X Chapters Act, 11 XI of the Chandler U.S.C.A. § expenses seq., that the services or 501 et warrant from the which will an allowance reorganization estate must contributed have adopted, and that plan finally to the compensation should allow court collateral rendered matters services indirectly reorganizat affecting

ion.4 here, think the And so we Dis justified holding trict Court direct record did demonstrate reorganization ultimate benefits estate, appellants’ services debtor’s Co., Cir., Compare 3 111 F.2d Colwood the construction of a simi v. 6 provision 77B, in section U.S.C.A. 673. lar U 4 Corporation, i, Bros. 8 Cor v. Woods sub. Re Allied Owners Stark 189; Cir., Cir., poration, F.2d F.2d Cir., Co., Investors, Cir., Inc., Silver Scullin Steel York 79 F. v. re New 181; Union Guardian Trust Co. F.2d

2d tributors, vegetables and handlers of Associ- California and Both the Arizona. respond- ation are and Western Growers ents in case. The other corpora- individuals, partnerships engaged tions district, the Salinas-Watsonville five, exception of and with the during were members of the summer of 1936. district is Salinas Watsonville shipped chief of lettuce in car-lots source season, During the United States. shipments per over cent of all car-lot originate lettuce in there. States United to a There are about of lettuce 300 crates jurisdiction car-lot. Since is conceded regarding be in the further facts point need not be stated. GARRECHT, Judge, dissent- Circuit crews, usually Field which are Oriental part. ing in Philippine workers, cultivate and and eventually is cut the lettuce. The lettuce taken from the fields in field then trailers to located in towns crates usually which are packing sheds sidings to railroad next sheds, At to ice sheds. and close cleaned, trimmed, graded, and lettuce is paper by packed in crates and ice usually are Americans. The crews which crates are then loaded on refrigerator cars sheds, sidings by the standing on cars iced, thereto are sealed. and the doors required pack lettuce A different skill is Watts, Counsel, Laurence Robert Gen. B. required cultivating and cut- than that ting Counsel, Knapp, Ernest A. Associate Gen. packing wage-scale it. The for the Counsel, Gross, Mortimer B. A. Wolf, Gen. Asst. is employees or shed workers different and Edward Cres- Bertram Edises J. employees engaged from that of C., well, Washington, peti- D. for all of cutting the lettuce. cultivating and tioner. peri- is latitude in the some While Francisco, Cal., Naus, George M. of San picked, can it can- which lettuce od in not be left Church, Salinas, Cal., Sidney for L. unpicked more than for 3 or respondent. ripening. height At the after weeks GARRECHT, HANEY, Before 3,000 approximately workers are em- season HEALY, Judges. Circuit packing ployed Salinas-Watsonville However, during season, which sheds. HANEY, Judge. Circuit April approximately 1 to De- lasts from of an order made fluc- by Enforcement the cember the amount radically, any particular sought Labor Relations Board and at shed National is tuates As from time time. a' conse- it. varies large proportion of the quence, a workers Grower-Shipper Vegetable Association move from shed to are forced to quest shed California, a California non- of Central employment, a few retain corporation, profit hereafter called the As- throughout shed with the same work sociation, grower-ship- is an association Between the time entire season. when the vege- of lettuce and other pers and handlers begins, season ends and another season Cruz, Monterey, Santa and San tables migrate Impe- many workers Counties, California, up making Benito California and Valley in southern rial known as the what is Salinas-Watsonville Arizona, enjoy a which short let- southern Growers’ district. Western sociation, tion, Protective As- time. during season tuce non-profit corpora- a California Growers, extremely perishable nature let- called Western hereafter is tuce, picked, requires shippers, growers, association of dis- after it is representative icing, with- packing, shipping proceed bargaining aof interruption. process been so of the out organized has the dis- each shed in ordinarily moving lettuce is trict. refrigerator latest out in cars at July 27, 1936, On the Association wrote picked, day it on which is evening the Union ready that it was nego- enter ordinarily not more 3 or but than tiations for agree- the conclusion new of a receipt let- the time of hours from begin ment 1, 1936. The ship- to time of packing tuce at the sheds Association and August the Union1 met on ment thereof. 6, 1936, at meeting the Union sub- respondents, great majority proposed mitted to the Associa- contract except and Western Grow- the Association tion containing which had themselves, ers, pack grown approved by lettuce been of the Union. members they purchase elsewhere. provided lettuce One for respondents pack lettuce Five of such the Union as the collective themselyes (cid:127) only, three do grown by agent all packing employees, pur- grow, pack lettuce which is provided preferential another hiring, growers. from other chased belonging workers adjourned, available. The meeting to con- Vegetables Workers’ Union of Fruit and again vene California, called No. hereafter Union, tion, organiza- labor a state-wide was day that the On reported Association 1932, affiliated with the formed in and meeting that members at a previ- held Labor. It admit- Federation of American ously by one day, rejected had pro- the engaged membership workers all ted posed contract. At the meeting of August processes packing-shed work of 1936, the various 11, the Association power received a receipt the lettuce as it was of from the attorney of signed by firms, including through loading the brought from the fields some non-members and all but two cars, freight but did packed of crates on Association, members of the empowering membership any field or not admit negotiate the Association for a new “stoop” workers. agreem'ent the agent exclusive power signers. attorney The of was irrev- Union the called In the summer year. for one It shippers agreed ocable was the at the dis- against various a strike 12, 1936, meeting August trict, Industrial Board that the an Relations Asso- and proposed ciation should a up the Union’s de- offer to arbitrate contract on set was mands. On 8, 1934, proposed August 1936. that board contract October presented by the day forth the Association setting condi- that award on issued its was similar to existing were to one but obtain in tions labor did September 1, provide for until 1935. Union packing sheds or for 1935, preferential hiring. agreed The Union negotiation in summer of After proposed agreed submit the bers, that contract to its and the Association mem- the Union meeting adjourned be and the the award should extended until Au- the terms agree- gust September year one exchanged in letters evidenced being ment date, reported On latter the Union and the Association. the Union between rejected its members had that the Associa- year there were dis- During proposal, tion’s and had directed nego- it to proposal members of on the putes tiate basis of the between first tension between them made it. The release joint- news issued employed ly by The Association the Association and the Union stat- increased. they what could preferential out about Union demanded to find ed that the a agents programs, policies activi- hiring clause which demand was the Union’s ties. The sub- find that ject did not the Un- bargaining Negotia- arbitration. following day members knew of such any of its tions were resumed but ion or agreement Association. was reached regarding activities no espionage preferential hiring clause. throughout Association entire August treated the of 1936 Union as the On the Association summer agent pack- published an all caused advertisement collective newspaper. It stip- in the district. was a local The advertisement con- Union was the tained headlines as follows: that collective “Workers: ulated meetings only representatives respective organizations met. 1 ln such working wage Agree- work scale and Study The under Think! Read This Ad— mentioned; performed work conditions that ment Did Have A Vote You Chance To September advertisement that thereunder on or after On It?” The stated: industry for majority binding contract would constitute a of the workers August honest, home-loving, period September law-abiding, from citizens; reached shippers if the Association hard-working that that wage carefully proposal agreement had studied Union’s as to Union rejected “unfair, conditions, then the working it as un- being had scale and up American, impossible being lived ineffec- agreement former become by employers and a true reflection of a schedule there was Following tive. sane, conditions, up- the attitude law- desires of wages based working abiding element which believe consti- we proposal sub- the Association on of 18, employees”. tutes the of our had mitted op- asked had an the workers if previously assured the express portunity to read their views September would continue work after proposal Union’s As- either the agreement even if reached. was proposal. sociation’s It also stated: Union met The Association and the organization’. is a ‘democratic “Yours 1936. The Union submitted conservative, sane, up You who make proposed was contract which most- second your straight-thinking group, own proposed ly rearrangement of its first sakes, do this: Negotiations until contract. continued early morning, up your when it leadership following “Set own commit- prefer- agreed your provision a modified organization tees. Demand that fol- hiring Refuse majority. low the ential would be submitted dictates minority, organization, to be radical members each dominated whose certainly you. negotiations De- would be resumed even- ‘orders’ don’t come you re- opportunity ing. evening, Association mand that be an That the given rejected the important ported had problems most that its consider all and members important, you provision. never sub- given Union demand be modified The members. opportunity American secret ballot to its mitted modification pro- problems. when a second passing on such The Association submitted posed ex- based on the contract which was Grower-Shippers, trying are “We contract, pired the addition of certain with problem squarely, fairly meet and pro- of the Union’s One of its demands. trying honestly. earnestly areWe to recon- was that the Union should visions problems yours operation cile with our bargaining agent its members collective for employment. urged You to meet us way, your at half for own sakes as least 3, 1936, September evening for well as ours.” On rejected As- members of copy followed of the Associ- There a proposal, and voted sociation’s second proposal, which were following ation’s 4, go September on beginning on strike statements to the effect that the Union re- began that date. The The on 1936. strike ported the Association that Union negotiated on Association Union and proposal, such and would not even discuss 11, 1936, ne- subsequently September and that full discussion of the Union’s saying through parties. gotiated third Associ- proposal would be futile unless the hiring preferential agreed ation to the first Tracy-Waldron Company, here- Fruit clause. Tracy, was not called after Association, had executed 1, 1936, existing member of September On attorney thg power of Association. expired, the Association contract had September Tracy wrote the newspapers local a On published caused to be stating it was revoking Lettuce In- To In The “Notice Workers attorney, an and then entered into power of dustry”. that whereas the stated notice Tracy then ratify Union. agreement negotiate had “failed to supplies for attempted to obtain needed working agreement” wage scale lettuce, so but was unable do pre- packing the notice forth in conditions set sup- Association induced the day. because The notice also beginning on that vail furnishing Tracy pliers to refrain performed by any work stated Tracy pack was unable to supplies. would with prior September -worker 14, 1936, lettuce, September wrote and on obligate such worker to continue (cid:127)not attempted cancelling Cannery, affiliation Agricul- from United tural, September revocation of Packing and Allied Workers America, affiliated with the Committee for strike, September During and on Organization, Industrial July on 1936, the a central Association instituted and hereafter will be called United. system, hiring required all under which it applicants jobs apply hiring at a hall. All 2but the 10 officers of the Union As system, result 10 individuals Substantially became members of United. either were persons or were refused meetings same attended the discharged being employed. after Cards United had who before attended the meet- kept ings were re- contained information Meetings the Union. of United were garding Union members. The Association held place at the same as the times relied how active meetings to disclose cards of the Union been. The func- had Union members were in Union activities. tions of United were the same as the Union’s functions had been. 16, 1936, charges October On sixteen charge were filed with the Board. Each The Board a further hearing regard- held respondent charged named a different ing question successorship of United’s practices commission of unfair Union, labor de- September 10, fined in 8(1), (3) (5) National § Board made its decision and order on Act, (1, Labor Relations 29 U.S.C.A. September findings 193-9. 3, 5). Board will be infra in stated in con- detail particular nection with the questions raised. 2, 1936, The strike ended November summary, (1) the Board found that after the Union its mem- voted release bargain collectively refused to permit apply bers and reemploy- them to September 2, 1936, the Union on ment. submitting proposed contract restrict- January On Union filed Union; (2) re- supplementary charge pre- charge for each spondents with, interfered coerced and re- viously filed on October 1936. On strained in the exercise of February charges fifteen rights by (a) their publishing the advertise- filed with each a new naming 28, 1936; publishing (b) ment of respondent. different On March 1, 1936; posting the notice of 1937, the Board’s Amended Consoli- (c) boycott Tracy; (d) employ- Complaint alleged dated was issued. ment espionage; (e) causing dis- engaged in un- employ- crimination in reinstatement and practices 8(1), labor in (3) fair defined ment after the strike. (5) Hearings began act. April 12, May completed order, were 1937 and The Board’s which will be con- 18, 1937. more in detail infra in sidered connection questions raised, general with the in re- regular On at a meeting of June respondents quired to cease and desist from Union, it the that the was voted Union’s refusing bargain collectively to with Bulletin Committee be instructed to “ar- United, employing from espionage, and range meeting pos- a for C.I.O. as soon as any in interfering from manner with meeting The held on sible”. was June employee’s rights, affirmatively per- was attended about 500 respondents bargain collectively ordered to sons, registered of whom as about United, and to pay with reinstate with back adopted members. A union resolution was respondents Certain certain individuals. employees packing “that house seek im- excepted provisions from some of the affiliation mediate with the C.I.O.” A order, exceptions but of since the have question was taken on the ballot of af- any bearing pre- questions with filiation the Committee for Industrial sented, they need not be related. The Organization,2 the court was 238 in petition filed its for Board enforcement affiliation, 12 against. favor of At the July this court on regular meeting July of the Union on adopted ratified the resolution at the Bargaining Collective Provisions. charter meeting of 1937. The of June Union, stated, by the American issued Federa- as found that the Labor, prior July was provision proposal of revoked to in the tion Association’s a group September recognition 1937. The received restricting certificate Congress Organizations. Now the of Industrial expressly refusal” It quent that subse- a clear found the events of the Union “constituted finding, to the the strike commencement of bargain. to on that Based bargain. did not It its order. disclose a to provisions refusal Board four made respondents, any not find did that action of Paragraph 1 19 named ordered Association, was bargain, cease a refusal other than including proposal. that collec- submission of the It found bargain refusing to and desist from wages, negotiated Association Union respect pay, tively in rates to, prior at, subsequent to the submis- hours and other conditions proposal. sion of that United, Para- It find Union. did not with successor nego- Association, when act- or have could should graph 2 required the .Association that the sub- named tiated did not find itself, more. for else, members, proposal, anything mission of the any of its paragraph for good negotiating a lack faith in to showed bargaining, purpose of collective for short, the Association. bargain refusing toso cease desist effect found did United, Union. Para- to the with successor negotiate very when in fact and at respond- affirmatively requires graph proposal submitted, time the the As- bargain col- ents named sociation was negotiating good faith. United, lectively with successor Union, request. Paragraph 9 affirma- upon The Board’s does not meet contention acting tively when required precise question raised here. respondents named any of the agent employer’s Board contends that action members, any of its in paragraph in recognizing union bargaining, purpose collective representative only its members consti- United, successor collectively bargain question a bargain. tutes refusal to Such a to the Union. presented. pre- question not here sented here is whether sub- there is four Respondents these contend stantial employer evidence show that the because: cannot enforced recognized bargaining agent union as proposal could the submission of (1) of its members The Board found bargain; a refusal alone constitute “Throughout the entire summer of refusal, was such (2) if such submission * * * up As- cannot faith- that one the rule law then Union, ques- sociation treated the without legalize the fully masters would serve two representative tion, as of all shed proposal, since submission district”, only thing workers of the and the non- union and interest between conflict of suggested the Board as evidence to show repre- actually would men, union lack of such is the submission finding that only; (3) itself sent proposal. Union, is successor United was the order, support the not sufficient to Findings of the Board con finding absence of supported by clusive “substantial United designated which means “such evi evidence” relevant Board con- agent. The their accept might dence as a reasonable mind (1) union where a is a tends that adequate support as to a Edi conclusion”. exclusive it entitled to representative, is Board, 197, 229, son Co. v. Labor 305 U.S. employer’s ac- “that recognition, and 59 83 L.Ed. Evidence S.Ct. 126. bargain- recognizing union as tion jury unsubstantial in a case is representative members ing of its court, merely does not become substantial bargain collective- a refusal to constitutes because it is before the for the evi membership from ly”; shift of (2) required support dence to the Board’s the or- United affect to does enough findings justify, “must be to der. jury, a trial were to a refusal a to direct case, sought facts that under the of We hold when the conclusion be verdict support evidence to jury”. substantial is one of fact there no for the drawn from proposal Co., constituted a finding that v. Columbian 306 Board U.S. Labor 501, 1, 505, bargain, and that 59 83 L.Ed. 660. S.Ct. refusal to upon any based 2, thereon, and 9 of order evidence issue is all “Where overwhelmingly be enforced. The Board cannot on one side or so on one no room to doubt find whether the advertisement as to leave what the refused to side Sep- is, give peremptory should a or the notice of fact the court of jury”. Gunning bargain. refusals Coo- instruction v. tember ley, Co., U.S. S.Ct. lations Board v. National Motor B. Cir., L.Ed. point. F.2d is not in That case finding no disclosed Here we think that is so the evidence surveillance with, did interfere restrain or overwhelmingly respond- to the effect that employees coerce the of in the exercise ents bargain, did not refuse as to leave rights, their a whereas here there was fact, no room to doubt that rea- finding. accept sonable mind would the evi- submitting dence of the mere fact of interference, Can there be restraint or proposal adequate support as a conclu- coercion in the of knowledge absence there- respondents sion bargain. refused to by of employees? In the absence of anything indicating contrary meaning, by None of the cases relied Board we think the dictionary meanings “in- point. employer are in them, all of terfere”, “restrain” and “coerce” be must negotiating, negotiated in as union accepted. Casual examination of dic- representative of its members tionary person discloses may that a in- Such is not the case here. with, terfered restrained or with- coerced Rights Employees. knowing out it. Interference We therefore hold that respondents pre- contention of does not Espionage. found that The Board vent paragraph enforcement of “by upon espionage activities union employed by the shed workers Associa Generally. Interference members, its tion’s the Association and Board found that interfered members named with, interfered with, employees restrained and coerced the restrained, and coerced such em in the rights guaranteed exercise of the ployees rights guar in the exercise of the by (a) publishing them 7 of the act anteed Section 7 the Act U.S.C. [29 1936; August 28, the publishing (b) advertisement of A. finding, Based on that § 157]”. posting Sep notice order, required paragraph 4 of its 1, 1936; boycott (c) Tracy; tember and acting when for itself or (d) causing discrimination in rein agent any or interest of statement and after the strike. members, respondents, and their findings, Board, by- Based on these respective officers, agents, successors and order, required 5 of its the As assigns, to cease and maintain desist from itself, sociation acting or ing any surveillance employing or manner agent or any in the interest of of its mem espionage purpose ascertain bers, respondents, each of the other investigating or the activities of United respective successors, officers, agents, their and any employees. assigns from in “cease desist any with, interfering other manner re Respondent paragraph 4 contends that straining, employees or coercing their cannot be because order enforced * * * employees of members of the evidence that no * * * in' the exercise of surveillance, knew and unless right self-organization, la to form knowledge, did surveillance have such organizations, join bor assist United not have effect the exer- could * * * * * * * * * successor by employees. rights cise of The Board * * * Union ganization, other labor or reply makes to this contention other collectively bargain through generally espionage than to stitutes con- assert representatives own choosing, their interference, restraint, and coer- engage in concerted for the activities cion. n purposes bargaining collective said, generally, has been itWhile protection, guaranteed mutual aid or in employer by the is espionage a violation of 7 of the Section Act”. (Ohio Power the statute Co. v. National Board, Cir., 115 designated (a), (b), (c) 6 F.2d Labor Relations The acts 839; Underwear Co. v. National were all Atlas above found Board to con- Board, Cir., Labor 116 F.2d Relations stitute an interference the union’s collectively. only bargain case has 1020), been called our efforts to one is there- particular discusses unnecessary attention which fore consider all three by respondents, question raised and in that sustained, them since if them is one of it one, Montgomery support it was decided. would gether order that same all to- v. Ward & Co. National Labor R. would. We therefore will state Cir., Labor Re- opposing arguments F.2d 700. National regarding (b) 1, 1936, Superior Co., seems Tanning notice of tions Board v. However, Cir., in and inoffensive of itself. F.2d “attempt Board found to obtain No respondents’ contention is made that security attempt provoke a an either to an ex- publishing action the notice was impair prestige strike or to and bar- speech. ercise right of free On that position gaining It reached Union”. question, express opinion. we no following that conclusion on the reason- Since the interference was in an ing: there was no the Associa- need for terference with the efforts of the Union to contracts, tion or its members to be- obtain bargain collectively only, as the Board cause had assured the Associa- found, paragraph modification of is re Sep- tion that work would continue after quired by National Labor Relations agreement tember even had Express Company, v. Publishing March reached; easily been the Association could 61 S.Ct. 85 L.Ed. That anticipate objec- the terms would be exactly point precise case is and the lan tionable to the Union because it had al- guage there, may of the modification be ready rejected terms; such the conclusion used here. naturally individual contracts would position any weaken the of the Union in other act of further agree- a collective interference, the Board found to be re ment, because the Association al- employees, straint and coercion of the ready security have afforded exist- above, designated (d) which is ing agreements; and the Association could causing act of discrimination hire and reasonably therefore anticipate that employment employees tenure of on ac provoke notice would either "a strike or count union of their activities. Since the make the Union “lose face” with its mem- question finding challenged, is bers. remaining for consideration kind power order which the Board has to make conclusion the Board is un- finding. reasonable. based on such We think reasonable men might differ as to publica- the effect of the Express In Labor Board v. Pub tion position notice, there- supra, Company, the court said that lishing fore the Board’s finding is conclusive. not'give “does the Board an au act Gunning Cooley, supra, v. page U.S. at thority, rightly exer courts cannot 50 S.Ct. 74 L.Ed. 720. cise, provi enjoin violations of all the merely because the vi sions statute Respondents contend that since justify olation of one been found. To has agreement collective expired, they had restraining other violations order right had the to fix employ the terms of they appear bear must some resem ment unilateral action. Labor Board v. employer to that which the has com blance Laughlin & Corp., Steel 301 U.S. Jones danger or that of their commission mitted 57 S.Ct. 81 L.Ed. 108 A.L.R. anticipated is to be from the in the future prohibits 1352. The act with, interference * * *” past. conduct in the course of his restraint and coercion of employees order We think 5 of the exercise rights guaranteed in § par- than to order the go should no further 8(1). Interference, 7. § restraint co any and desist from in therein cease ties ercion are not acts themselves but are de interfering with the manner efforts scriptive and are the result of acts. What bargain collectively with United ever may acts have the effect of interfer any manner parties, discrim- ence, restraint and coercion are included in employers causing other to dis- inating, or terms, those prohibited. and are therefore criminate, against individual on ac- they great Thus include a number of acts activities, regard to hire count of union which, normally, validly done, .could term or or tenure with, interfere restrain or co employment. condition erce in the' exercise of their rights, prohibited they by the act. Here Reinstatement. although normally right Specific to fix the of Individuals. The by terms Board’s action, they part unilateral could not order contains entitled exercise decision and with, right Remedy”. such to interfere Therein the Board restrain or co “The stated employees. erce the National order reinstatement em- Labor Rela- it would 378 having mentioned individuals been raised before the ployment of the 10 Board we from are period above, pay for unable to objection. the consider and back § 10(e), discrimin- 160(e). 29 upon the U.S.C.A. date which the earliest § of- the to the date expressed itself ation Generally. Reinstatement In the less employment, fer of reinstatement part of the Board’s decision entitled “Rem during such individual earnings the net edy” the Board stated that it would order period, pay be calculated reinstatement of each striker to his former weekly earn- average of his basis of the or a substantially equivalent position. September year ending ings during the further stated' that all hired part that such also stated 1936. The Board since the commencement of the strike must Asso- against run of its order be discharged, necessary pro in order to its members who ciation and those positions, vide pay and that back would be and respondents the Association because except ordered might as to those who “participated respondent members its pursuant refused reinstatement produced the discrimina- which scheme Board’s order. tion”. Accordingly, paragraph order, required 10 each paragraph Accordingly, 6 of respondent, upon application, respondent to offer to Association and its requires the the packing employees employed by it on members, an of immediate “cause offer September 3, 1936, full and employment in re- immediate to or full and reinstatement instatement, paragraph and required 11 position positions or sub- former their back pay any respondent in the event to” re- equivalent thereto be made stantially fused to make an offer previously mentioned reinstatement. 10 individuals Paragraph required re- herein. Respondents contend that paragraphs 6 to spondents mentioned 10 and as well as 6 and cannot be pay the manner mentionéd pay back enforced because the strike s occurred as “Remedy”. decision entitled part result dispute, of a labor and there- Respondents paragraphs 6 contend that fore had right replace strikers, by their terms 7 are invalid because required are not discharge them. compelled hire the respondents are Mackay Co., Labor Board v. 304 U.S. individuals. 1381; named -Those 58 S.Ct. 82 L.Ed. La- National Phelps unobj ground. are ectionable bor Lightner Relations Board v. Pub. Corporation Re- Dodge Corp., v. National Labor Cir., difficulty 113 F.2d 621. The Board, April lations S.Ct. argument is that in re- the cases on, lied strike in such 133 A.L.R. cases did not L.Ed. occur as the prac- result of unfair an labor Respondents contend that further tice, dispute, but from a labor whereas paragraphs are such invalid because the here the Board found that the strike oc- against respondents joint order order is a curred as result an unfair labor rely employers, former were not who practice, e., by publication post- i. Labor Relations Board v. National of the notice of 1 Hearst, Cir., case, 102 F.2d 658. That attempt restrict however, controlling is not here because membership only. Since respondents par did other not strike occurred as result an unfair ticipate against discrimination practice, labor the order is not invalid be- Here, individuals. liable urged. Phelps Dodge cause of reasons participated pursuant in the scheme Board, supra. Corporation v. Labor accomplished discrimination which the act, 2(2) virtue U.S. § Respondents also contend that 152(2), “employer” C.A. defines § ended, strike strikers lost “any person including acting in in “striking employees” their status employer, directly terest of or indirect “employee”, be an be therefore could not ly” beyond the order is we think “employee” cause the ex definition

powers Board. work has cludes whose as a those ceased Respondent dispute further contends that result of a labor is cur is joint However, order invalid in 2(3). because rent. that definition joint supported charge. employee, cludes as an also one whose proposed findings order, consequence issued has ceased as work “of except up failed to practice”. thereto labor The strikers unfair ground ground. category. on that Not here in that Respondents objected mere to Board sham. Agreed The Modification. However, answer being as paragraphs a conclusion. consents to the modification Corp. the Board conclusion 11, could draw the pursuant Republic Steel being substantial evidence Board, v. Labor S.Ct. U.S. support record it is bound this court by striking therefrom L.Ed. amount, finding. fact remains that so The pay following: “and over requirement re- vital the Union agency deducted, appropriate fiscal bargain only stricted mem- municipal, its own Federal, State, county, of the bers, discus- injected into the governments which was government or which or other by respondents withdrawn. supplied sion This is was never work-relief the funds for said quite Board projects”. will be made. sufficient to sustain the Such modification finding: in its “ Laches. * * * language the Associa- The restricting September 2, proposal tion’s en Finally is contended that it representing recognition Union as of the denied of the order should be forcement re- only, a clear its members constituted delay long Board because of bargain. employer fusal An cannot so to Considering size concluding the case. obligation organization fulfill his to a labor containing (9 of 3873 record here volumes representative which is the exclusive say that pages) unable to we are employees by bargain his with offering to laches is shown. accordingly it for its members We paragraphs Enforcement of that, September 2, find re- on denied; 5, 7 9 of the order is except spondents, Western Growers’ Pro- stated, are modified as above Company, tective H. P. Garin enforced; as so modified all other bargain col- Spiegl, E. refused to and H. lectively parts of the order are enforced. By doing with so the Union. with, restrained, and also interfered coerced GARRECHT, Judge (dissenting Circuit of the Associa- of members part). and of firms which Associa- tion those part opinion With that which of main represent, ex- tion was authorized to whereby finding nullifies the of the Board rights guaranteed Section ercise of proposal it determined that “Association’s 7 of the Act.” September 2, restricting finding sustaining the Su- a similar representing the Union its members as National Lico- preme the case of Court only,” bargain constituted a col- refusal to Labor Relations v. National rice Co. lectively Act, meaning within the I page at 60 S.Ct. 309 U.S. my mind, agree. do not To evidence page said: at L.Ed. finding to sustain this is as as substantial “ * * * testimony that There is at supports findings representatives meeting with Union opinion upholds. president July petitioner’s 29th de- on It is admitted that the Union had been recognize bar- the Union clined to duly represent authorized all the work- employees, representative of gaining all the ers, pur- non-union well as union. The negotiate with and declared he would pose restrict Un- representative it solely bargain act or ion to its own members, bargain refusing Union bargain members or to offer with representative all em- with it as only, obligation that basis did not meet the plain the Act. ployees, a violation of §§ under the law. by peti- 9(a). This was 8(5), followed opinion main this crucial fact obscures refusal, 2nd, negoti- tioner’s eloquent emphasis about what the Board representatives. There with ate did not find or failed to find. from which Board was also evidence opinion respond- if seems to indicate that negotiations found that the have could negotiated all Union, ents at this July 29th were not entered July 20th and preclude finding of refusal petitioner faith, good into collectively. bargain Manifestly much of thinly disguised refusals to treat were but negotiating on other matters was con- representatives.” camouflage utterly lacking in versational Indeed, good findings one faith. of the witnesses should be phases was asked certain itof were not sustained.

Case Details

Case Name: National Labor Relations Board v. Grower-Shipper Vegetable Ass'n

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Jul 21, 1941

Citation: 122 F.2d 368

Docket Number: 9577

Court Abbreviation: 9th Cir.