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NATIONAL LABOR RELATIONS BOARD

AUGUST 17, 1937.

To: Mr. Fahy.

From: B. M. Stern.

Subject: Agricultural Producers' Labor Committee.

The Board requests that you review this request for a definition by the Board of "agricultural labor”, made by the Agricultural Producers' Labor Committee.

For your information, the NRA and the Department of Agriculture collaborated sometime in 1933 or 34 on such definition. I am sure that it would

be made available to you if you desire to see it.

B. M. S.

C. F.

[Written notation:] Nat: Would like to discuss the question of our making a ruling at all.

EXHIBIT No. 1613-N

NATIONAL LABOR RELATIONS BOARD

AUGUST 20, 1937.

To: The Board.

From: Charles Fahy.

Subject: Agricultural Producers' Labor Committee.

The Agricultural Producers' Labor Committee, stating that they represent farmers and growers in California, Oregon and Washington, have filed a formal request with the Board for a ruling defining “Agricultural Laborers", so as to place clearly beyond the application of the Act all labor employed in the producing or handling of agricultural commodities. The request is that the Board adopt for administrative purposes a definition of “agricultural laborers", under the rule making power of the Board.

I do not believe that the Board should grant this request. The application of the statute to certain persons who may be termed agricultural laborers is involved in the Salinas case now before the Board. It seems to me it would be better to pass on the question as it arises in particular cases. It is true that there would be some administrative advantage in making a definition, but it would be rather dangerous to do so at this time without awaiting the consideration of the Salinas record and perhaps other cases which may arise. I suggest we advise the petitioning committee along the above lines.

EXHIBIT NO. 1613-O

CHARLES FAHY.

NATIONAL LABOR RELATIONS BOARD

To: Mr. Nathan Witt
From: Charles Fahy

AUGUST 25, 1937.

We are relaxing on the requirements as to economic material in support of jurisdiction, under the commerce clause. In other words, the regional attorneys are not being required now to get together material as to the national character of the industries and the like. Dr. Saposs suggests that in view of that relaxation some of the records may come to you, expecially in industries engaged in manufacturing specialties, with weak jurisdictional evidence, and that therefore, it might be a good idea to warn the attorneys reviewing the records to watch the situation.

He would also like to go over the decision in the Salinas case when it is in draft form because of his particular interest in the question of definition of agricultural labor.

CHARLES FAHY,

Charles Fahy.

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In view Bodle appointment feel justified commencing annual leave at one and hereby request permission to do so Stop Herewith report and recommendations pending matters Stop Re Cowell Portland Cement case commenc ing August Thirtieth recommend McTernan be authorized try this case which should require only few days Stop Re Utah Copper case commencing August thirtieth Jennings now in Salt Lake working this up and should be finished about September sixth Stop Re reopening Grower Shipper case for testimony Re change of affiliation of union the issues are simple and suggest this be sat about September tenth and Bodle assigned Stop Re draft decision Grower Shipper case expect submit criticisms shortly Stop Am planning visit east coast during leave and would like to know if there is likely to be conference in September and if so will Board authorize my transportation Washington in advance conference data.

(Original Filed with Cowell Portland Cement.)

EXHIBIT NO. 1613-Q

EDISES SAN FRANCISCO.

9 CHRISTOPHER ST., NEW YORK CITY, September 14, 1937.

c/o D. McKay.

To: Nathan Witt,

From: Bertram Edises,

Subject: Grower-Shipper Vegetable Ass'n. Cases.

This is written without the benefit of the transcript of record, and is based solely on rough notes referring to the transcript and some of the exhibits Consequently it is far from complete. I desire, however, to indicate briefly why I differ sharply from certain of the findings and conclusions set forth in that portion of the draft decision which I have seen.

It is my opinion that the draft decision seriously misreads the record in a number of respects. In some instances, notably in dealing with the 8 (5) charge, facts highly pertinent to the determination of the issues are not even mentioned. In situations where conflicting inferences are possible (viz, employer responsibility for police activities; activities of Watkins Detective Agency: etc.) the draft decision seems in a disproportionately large number of cases to draw the inference most favorable to the employers. The decision as a whole is marked by an absence of realism in interpreting facts the meanings of which are clear to every worker. No doubt part of the explanation lies in the fact that the writer of the decision did not have the benefit of the report of a trial examiner. Considering now the chief features of the draft decision:

(1) The commerce feature is handled well. However, the record will permit it to be somewhat strengthened. Thus, the actual car-load figures of daily shipments of lettuce before, during and after the strike can and should be quoted to show the marked effect of the labor dispute in halting shipments in interstate commerce. Of even more importance is the fact that there is testimony in the record showing that each and every individual respondent shipped large quantities of lettuce to out of state points. (R. page 2982, et seq.) It thus becomes unnecessary to resort to the deduction used on page 10 of the draft to show that each respondent did an interstate business.

Another point which should be brought out in connection with commerce is the reason why shipments of lettuce must be handled so expeditiously, viz the extremely perishable nature of the product. It should be mentioned that ice is used in packing the lettuce. The effect of an interruption of shipments through labor trouble will thus be made clear.

(2) With the finding that the employees involved are not agricultural laborers I am in full accord. But since the respondents undoubtedly plan to make much of the point on appeal, I suggest the addition of a finding that the work of the

shed employees is primarily manufacturing or processing-that they are engaged in changing the form of the product so as to make it suitable for shipment to the Eastern market. It should also be noted that lettuce intended for local distribution is normally field packed and is not trimmed and iced as is lettuce destined for distant points, i. e. all the lettuce produced by the respondents.

(3) The treatment of the "background" of the unfair practices seems to me inadequate. The record supplies material for a deeper analysis. Any discussion of the background of the events of September to November, 1936 must start with the recognition of two basic facts: (1) The increasing strength and militancy of the Fruit and Vegetable Workers Union of California, No. 18211, during the spring and summer of 1936; (see R. pages 667-678); (2) The fact that early in the spring of 1936, a notable drive got under way to organize California's agricultural, cannery and shed workers on a state wide scale. (See testimony of Doss). The record notes the Stockton Conference of 1936. It also shows that the Associated Farmers took the most serious view of the Stockton Conference and the plans made therein and inaugurated a counter-drive, employing red-scare tactics, in an effort to stop it. (See B-35; also B-32 and B-53). It is only when these two basic facts are borne in mind that subsequent developments take on meaning.

Thus, the so-called Simmons-IceKist incident did not "result" in the formation of the Citizens Association and the revival of the Monterey County unit of the Associated Farmers as the draft decision puts it. On the contrary, it was the determination of the Grower-Shippers to cooperate in the union-smashing program of the Associated Farmers of California that caused the Simmons episode to assume the apparent importance which it did. The record shows this conelusively. Standing by itself, the Simmons-IceKist incident is merely an instance of job action by workers who, rightly or wrongly, believed themselves aggrieved by their employer. There had been previous disputes between the workers and the shippers. They had been adjusted with no great fanfare. The respondents' witnesses testified that previous to the Simmons-IceKist job actions, relations with the union had been satisfactory. They admitted that no change in leadership, structure or type of membership took place at about the time of these incidents. It was the same organization they had been dealing with in the past. Yet the shippers seized upon these job action episodes and magnified them to an extent out of all proportion to their significance. The response of the shippers was extraordinary and unprecedented. The only explanation that makes sense is that the respondents deliberately seized upon this incident as the opening gun of their campaign to crush the union. Evidence that this campaign was definitely planned in advance is the amazing speed with which the respondents followed up the Simmons incident with a publicity barrage against the union. The very day after the event, the Grower Shipper Association published a full page advertisement in local newspapers condemning the Union in unsparing terms. (Exh. R-36; transcript p. 2502). Moreover, the action of the shippers in sending "hot" lettuce from one shed to another, with foreknowledge that the lettuce would not be handled, has all the earmarks of a provocatory tactic. In at least one case, the record tends to show that the lettuce was knowingly sent to a shed which was not equipped to handle it, although other sheds in the vicinity were.

From the date of the Simmons-IceKist job actions, the attack of the respondents never relented. The numerous facts which show the pre-existing hostility of the employers to the Union and their cooperation in various attempts to discredit its leadership and cripple it in other ways, are of the highest importance in evaluating the subsequent negotiations and in determining whether or not there was a violation of 8 (5). Foremost weapon in the concerted attack by the respondents on the Union was the establishment of two false fronts, the Citizens Association and the Associated Farmers of Monterey County. I wish to record the most emphatic dissent from the draft decision's treatment of these two organizations. In my opinion, the record supports a finding that these associations were the creatures of the Grower-Shipper Association, organized by it for the purpose of mobilizing community sentiment against the Union, and, in the case of the Associated Farmers, of furnishing civilian man-power in connection with the contemplated operation of the sheds on a non-union basis. As apparently independent third parties, these organizations could propagandize and otherwise function more effectively than the Grower-Shipper Association itself. Support for this conclusion is found in numerous circumstances, but chiefly in the employment of Cruse Carriel and Henry Strobel. Carriel was chosen to head the Citizens Association and Strobel was selected to re-create the Associated Farmers. The salaries of

both were paid by the Grower-Shipper Association, in Carriel's case indirectly after his employment by the Grower-Shippers nominally terminated. The draft decision neglects completely the significance of these mens employment. Here are some of the facts.

Carriel was hired early in June or late in May, 1936 as "public relations" expert for the Grower-Shipper Association. This in itself was without precedent. Secretary Brooks of the Association testified he considered the job for which Carriel was chosen highly necessary and important. Yet within a few days of Carriel's appointment he was turned over (at the same salary, if recollection serves) to the Citizens Association on a full time basis. And nobody was appointed in his place ! Note also that the initial meetings of the Citizens Association were held in the Grower-Shipper offices and that the latter organization was the financial angel of the former. The record shows that the organizations functioned practically as one, especially in the anti-union publicity campaign. (page 596; 820)

As for Henry ("Hank") Strobel, it is naive and at variance with the plain implication of the record to conclude that his resurrection of the Associates Farmers of Monterey County was not directly connected with his employment by the Grower-Shipper Association in May, 1936 at a generous salary. In fact, despite denials by Strobel, the record supports the inference that Strobel was hired for the express purpose of promoting the Associated Farmers. Coincidence alone is not sufficient to account for the simultaneous hiring of Strobel on a "free and easy" arrangement (page 668–670), with duties vague and unspecified; the inaugu ration of the red-baiting, vigilante-minded Associated Farmers at a meeting called by Strobel at which anti-union threats were openly uttered; and the commencement of the drive which succeeded in forging a united front on labor matters of all shippers, under the aegis of the Grower-Shipper Association. (B-16)

There is also the most meaningful fact that at the same time as the foregoing organizations were created the Grower-Shipper Association started to accumulate a fund of money for "extraordinary expenses", a term the meaning of which becomes clear when it is known that out of this particular fund was paid the cost of salaries for both Carriel and Strobel, contributions to the Citizens Association. per diem of Watkins labor spies, fee of William Theile, attorney for the Citizens Association and similar expenses. All of them are anti-union in character.

The facts cited above seem to me to show beyond reasonable doubt that the Citizens Association and the Associated Farmers of Monterey County were established, dominated and used by the respondents as weapons in their warfare against the Union. There are additional facts in the record which reveal the respondents preconceived intent to smash the Union. One is that Brooks, the active head of the Grower-Shipper Association, and others of the respondents, became members of an organization (the Associated Farmers) which openly proclaims its hostility to labor organization in agriculture and allied industries. Even more direct proof of the respondents' attitude (which must be considered in evaluating the charge of failure to bargain collectively) is the avowed hostility of Brooks, Church and Sbrana, the leaders of the Grower-Shipper Association. Brooks admitted having many reasons for opposing the Union. Reduced to essence, the grounds for his opposition are that, during the Spring and Summer of 1936, the Union was becoming too strong and militant. (page 667-678) We need look no farther for the existence of a motive explaining the respondents' actions leading up to and following the strike called on September 4, 1936.

(4) The treatment of the alleged refusal to bargain collectively constitutes to my mind the most serious weakness of the draft decision. The collective bargaining feature is the most important phase of this case. The brutality of the police, even the existence of the blacklist, are secondary. Since the hearing terminated, the respondents have ended the farcical negotiations which they commenced for strategic purposes during the hearing, and which apparently influenced the writer of the draft decision in his finding of no refusal to bargain collectively, (See draft decision, page 19.) The Grower-Shippers have now entered into an agreement with an organization whose boast is that at the time the agreement was signed it represented 65 workers out of several thousand in the community. Unless the record in this case is correctly and realistically appraised, and a failure to bargain collectively found, there soon won't be any organization of labor in the Salinas Valley.

Without attempting an exhaustive survey, I desire to point to an instance which itself establishes a violation of section 8 (5). This incident is not even mentioned in the decision. I refer to Board's Exhibit No. 31, which is a full page advertisement published in the Salinas Index-Journal of August 28, 1936, while "negotiations" with the Union representatives were still going on. The

ad appeals to the workers, over the heads of their chosen representatives, to repudiate those representatives and select others more satisfactory to the respondents. There is nothing equivocal about this language:

"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."

(The intended implication being that the "orders" came from Moscow.) The language quoted above is certainly stronger than the circumstances which received the condemnation of the Board in the Matter of Columbian Enameling and Stamping Co. (1 NLRB 181, 188, 198.) It constitutes an open attempt to discredit the chosen representatives of the workers and an invitation to repudiate their representatives and select others not so "radical". Other examples of deliberate appeals by the Grower-Shipper Association over the heads of the workers chosen representatives (as well as in direct violation of its written pledge not to engage in unilateral publicity) may be found in Board's Exhibits 18-0, and 74, and in the ads of its stooge Citizens Association (viz, B-73). Can there be genuine collective bargaining in the midst of such a barrage?

But the most flagrant violation of Section 8 (5) is the publication on September 1, 1936 of a full page ad and the posting of notices in all the lettuce sheds, stating in substance that anyone working on or after September 4, 1936 would be deemed to have entered in an individual contract of employment for a one year period with the Grower-Shipper Vegetable Association. (B-25) The draft decision makes the rather startling statement that the Union, in choosing to call a strike rather than submit to the terms of this Notice, "appears to have misconstrued the effect of this notice." Let me assure you that there was no misconstruction on the part of the Union or any of its some 3000 members, and the record so indicates. The Union took this Notice to mean just what it says: namely, that individual contracts of employment, arrived at without their own consent or that of their representatives, were to be imposed upon the shed workers. And the record shows without the slightest contradiction that they went on strike because they correctly understood that the acceptance of these conditions meant the destruction of their Union. I intend no disrespect to the author of the draft decision when I state that it is he rather than the Union who has "misconstrued" the effect of this Notice. If, as the draft decision holds, the publication of this Notice was harmless, why was it necessary to draft it in the form of individual contracts between single workers and the Association? If the sole object was to notify the workers of the wage scale which would be in effect after September 1, 1936 (the date of expiration of the previous contract), why did the Association not simply publish a scale of wages and hours, as was in fact done in November, 1936 and April, 1937-after the Union had been smashed? (B-45 and B-46.) Better still, why could not this information have been conveyed to the workers through their own representatives, who were then meeting with the employers and supposedly bargaining about the very matters dealt with in the September 1 Notice? The Union leaders testified without exception that they had expressed to the shippers their willingness to continue working after September 1 under the same conditions as previously, pending the consummation of a new agreement. It is undisputed that the Union had not threatened and did not intend to go on strike when the agreement lapsed. There is only one logical explanation of the publication and posting of this Notice: the employers, by repudiating collective bargaining and substituting individual dealing, intended to provoke the Union into calling a strike as the alternative to surrendering its collective existence. Such was the understanding of the Union and all its members. The employers, incidentally, succeeded in their objective, both in provoking strike action and, thereafter, in smashing the Union.

The draft decision seeks to support its finding that the September 1 ultimatum (as it was universally referred to) did not violate 8 (5) by referring to the proviso, added in small print to the body of the notice, stating: "Should the undersigned and the Fruit and Vegetable Workers Union, No. 18211, enter into an agreement pertaining to the matters contained herein, this agreement shall thereafter become ineffective." According to the decision, this paragraph "clearly contemplates further negotiations." Perhaps if the quoted language is divorced entirely from its context and surrounding circumstances and read

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