Abinante & Nola Packing Co.

National Labor Relations Board - Board Decisions

Aug 24, 1940

26 N.L.R.B. 1288 (N.L.R.B. 1940)

In the Matter of ABINANTE & NOLA PACKING CO.,1CALIFORNIA PACK-
ING CORPORATION, CALIFORNIA PRUNE AND APRICOT GROWERS
ASSOCIATION, C. L. DICK & COMPANY, GUGGENHIME'& COMPANY,
HAMLIN AND COMPANY, LIBBY, MCNEILL & LIBBY, MAYFAIR
PACKING COMPANY, RICHMOND-CHASE COMPANY, J. S. ROBERTS,
ROSENBERG BROS. & CO., WARREN DRIED FRUIT CO., WINCHESTER
DRIED FRUIT COMPANY and WAREHOUSEMEN'S UNION, LOCAL 1-6,
I. L. W. U.
Cases Nos. C-1456 and R-1580-Decided August 24, 1940
Jurisdiction : dried fruit packing and shipping industry.
Unfair Labor Practices
Interference, Restraint, and Coercion: anti-union statements; declarations of union
preference; interrogation concerning union activities; interference in the forma-
tion or administration of a labor organization and contribution of support
thereto; threatened discharge of employees; interference with right of collective
bargaining; privileges accorded and favoritism shown to one of two rival legiti-
mate labor organizations; conducting employee elections; contract restraining
rights of employees.
Discrimination: charges of discrimination, dismissed.
Collective Bargaining: charges of refusal to bargain collectively, dismissed.
Remedial Orders
Respondents ordered to withhold exclusive recognition, pending results of
election to be ordered in the future, from union found company-assisted and
to withhold recognition from said assisted organization as representative of
any of their employees unless similar recognition be granted rival unions.
Investigation and Certification of Representatives : existence of question; election
necessary.
Question found to exist where the petitioning union demanded exclusive
recognition and submitted designation signed by a majority, but the em-
ployers refused such recognition, until the union be certified by the Board,
because of previous bargaining relations with a rival union which still claimed
exclusive bargaining rights, and because a substantial number of employees
were shifting their allegiance back and forth between the petitioning union
and its rival.
Unit Appropriate for Collective Bargaining : all employees of all respondents,
employed in the respondents' dried-fruit packing plants in Santa Clara and
San Benito Counties, except officers, executives, clerical and other office em-'
ployees, and all persons having power of hire or discharge.
111r. Earle K. Shawe and Mr. Jonathan H. Rowell, for the Board.
Mr. W. W. Jacka and 111r. J. Paul St. Sure, of San Jose, Calif., for
the respondents.
26 N. L. R. B., No. 119.
1288
ABINANTE & NOLA PACKING CO. 1289
Gladstein, Grossman and Margolis, by Mr. Ben Margolis, of San
Francisco, Calif.; Mr. Joseph Kovner, of Washington, D.- C.; Mr.
Earl T. Baker, of San Jose, Calif.; and Mr. Raymond Heide, of Oak-
land. Calif., for Local 1-6.
Mr. Charles J. Janigian, of San Francisco, Calif.; Mr. I. B. Padway,
of San Francisco, Calif., by Mr. Joseph Padway, of Washington,
D. C.; and Mr. Herbert S. Thatcher, of Washington, D. C., for Union
No. 21084 and the Federation.
Mr. George Turitz, of counsel to the Board.
DECISION
ORDER
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
Upon charges and amended charges duly filed byWarehousemen's
Union, Local 1-6, International Longshoremen's and Warehousemen's
Union, herein called Local 1-6, the National Labor Relations Board,
herein called the Board, by the Regional Director for the Twentieth
Region (San Francisco, California) issued its complaint dated July 1,
1939, against the following respondents: S. R. Abinante and Frank
S. Nola, copartners doing business under the firm name Abinante &
Nola Packing Co., herein called Abinante; California Packing
Corporation, herein called California Packing; California Prune and
Apricot Growers Association, herein called the Growers 'Association;
C. L. Dick & Company, herein called Dick; Guggenhime & Company,
herein called Guggenhime; Hamlin and. Company, herein called
Hamlin; Libby, McNeill & Libby, herein called Libby; Joseph P.
Perrucci and F. L. DiNapoli, copartners doing business under the
firm name Mayfair Packing Company,,herein called Mayfair; Rich-
mond-Chase Company, herein called Richmond-Chase; J. S. Roberts;
Rosenberg Bros. & Co., herein called Rosenberg; C. D. Stevens,
doing business under the firm name Warren Dried Fruit Co., herein
called Warren; and Winchester Dried Fruit Company, herein called
Winchester.' The complaint alleged that the said respondents and
each of them had engaged in and were engaging in unfair Tabor
practices affecting commerce,, within the meaning of Section 8 (1)
and (5) and Section 2 (6) and (7) of the National Labor Relations
Act, 49 Stat. 449, herein called the Act..
I The names by which several of the respondents were designated in the captions of the complaint and
notices of hearing were incorrect in certain immaterial . respects.
1290 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On June 20, 1939, Local 1-6 filed with the Regional Director an
amended petition alleging that a question affecting commerce had
arisen concerning the representation of employees of the respondents
and requesting an investigation and certification of representatives
pursuant to Section 9 (c) of the Act. On June 29, 1939, the Board,
acting pursuant to Section 9 (c) of the Act and Article III, Section 3
and Section 10 (C) (2), and Article II, Section 37 (b), of National
Labor Relations Board Rules and Regulations-Series 1, as amended,
ordered an investigation of the question concerning representation and
authorized the Regional Director to conduct it and to provide for an
appropriate hearing upon due notice, and further ordered that for the
purposes of hearing and for all other purposes the two cases be consol-
idated and that one record of the hearing be made.
Copies of the complaint, accompanied by notice of hearing thereon
and copies of the amended charge, and copies of the petition ' and of
the notice of hearing thereon, were duly served upon each of the
respondents, upon Local 1-6, upon Dried Fruit and Nut Packers
Union No. 21084 of Santa Clara County, California, herein called
Union No. 21084, a labor organization having an interest in these
proceedings.2
With respect to the unfair labor practices the complaint, as amended
at the hearing,' so far as here material, alleged in substance: (1) that
during the period beginning approximately August 1937 and continu-
ing down to and including the date of the issuance of the complaint,
the respondents and each of them entered into a common and mutual
plan and course of action for the purpose of interfering with the self-
organization and freedom of choice of representatives of their respec-
tive employees and for the purpose of organizing among the said
employees, through the California State Federation of Labor, herein
called the Federation, Union No. 21084, which would be controlled
by and subservient to the said respondents and each of them; (2) that
in furtherance of the said plan and course of action the respondents
and each of them, during the month of August 1937 and thereafter,
interfered with, influenced, controlled and assisted the formation,
organization, and administration of Union No. 21084 in certain speci-
fied ways; (3) that in furtherance of the said plan and course of action
the respondents and each of them, during the month of August 1937
and thereafter, contributed financial support to the officers, agents,
2 Copies of the said papers were also served upon Mr. I. B: Padway and Gladstein , Grossman & Margolis,
attorneys who subsequently appeared in these proceedings on behalf of Union No. 21084 and California
Federation of Labor, and of Local 1 -6, respectively.
3 The Trial Examiner , in granting a certain motion by counsel for the Board to amend paragraphs 17, 18,
19, 20 , 21, 24, and 27 of the complaint , and in referring to such ruling in his Intermediate Report hereinafter
mentioned , specifically referred to each paragraph so amended except paragraph 20. However, the Trial
Examiner ruled generally that the motion made by counsel for the Board was granted , and it is clear that
failure specifically to mention the amendment of paragraph 20 was not intended to exclude said paragraph
from the scope of the order granting the motion.
ABINANTE & NOLA PACKING Co. 1291
and representatives of Union No. 21084 and in other ways aided,
assisted, and contributed support to its formation and administra-
tion; (4) that since April 20, 1939, at which time a majority of the
members of Union No. 21084 became members of Local 1-6, the
respondents and each of them, in furtherance of the said plan and
course of action, have interfered with the self-organization of their
employees and in their freedom of choice of representatives, thereby
assisting Union No. 21084, in that the respondents and each of them
have urged, persuaded and warned their employees to surrender their
membership in Local 1-6 and to join and assist Union No. 21084 and
have threatened their employees with loss of employment if they
refused or failed to do so, and in that the respondents and each of
them have bargained and are continuing to bargain collectively with
Union No. 21084 as the exclusive representative of employees of the
respondents in an appropriate unit, notwithstanding the fact that on
April 21, April 27, May 12, June 12, and June 15, 1939, the respond-
ents and each of them were informed that Local 1-6 was the represent-
ative of the said employees; (5) that on May 12, June 15, and June 30,
1939, and at all times thereafter the respondents and each of them,
in furtherance of the said plan and course of action, refused and have
refused to bargain collectively with Local 1-6 as the exclusive repre-.
sentative of employees of the respondents in an appropriate unit,
although on and before and at all times since such dates Local 1-6
was and has been the exclusive bargaining representative of all such
employees by virtue of having been designated by a majority of such
employees as their representative for the purposes of collective bar-
gaining with the respondents; (6) that in furtherance of the said plan
and course of action the respondent Guggenhime, during the month of
August 1938 and continuously thereafter, refused or failed, and now
refuses or fails, to reinstate to his regular position James F. McCauley,
one of its employees, because he attempted to free Union No. 21084
from the interference, influence and control of the respondents and to
transform Union No. 21084 into a bona fide labor organization free
from such interference, influence, and control, and because he engaged
in concerted activities with other employees of the respondents for.
the purposes of collective bargaining and other mutual aid and pro-
tection; and (7) that in furtherance of the said.plan and course of
action the respondent Hamlin, during the month of June 1938 dis-
charged and continuously thereafter refused or failed, and now refuses
or fails, to reinstate to his regular position Raymond Gullo, one of its
employees, because he attempted to free Union No. 21084 from the
respondents' interference, influence, and control, and to transform
Union No. 21084 into a bona fide labor organization free from such
interference, influence, and control, and because he engaged in con-.
1292 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
certed activities with other employees of the respondents for the
purposes of collective bargaining and other mutual aid and protection.
On July 10, 1939, the respondents filed their separate answers,
which were amended at the hearing. The said answers, as amended,
each admitted the appropriateness for collective bargaining of the'
unit described in the complaint and admitted that Local 1-6 on May
12, June 15, and June 30, 1939, had requested the respondents and
each of them to bargain collectively with Local 1-6 as the exclusive
representative of the respondents' employees in such unit, but other-
wise they denied all the material allegations of the complaint with
.respect to the unfair labor practices. Each of the said answers
affirmatively alleged that the respondent filing it had never refused
to bargain with the representatives of its employees; that on or before
May 12, 1939, such respondent was negotiating with Union No.
21084, which it believed to be the representative of the majority of its
employees, and that after said date such respondent continued to
bargain collectively with said union and was still so bargaining; and
that such respondent had notified all other persons and organizations
claiming to represent a majority of its employees that it. would not
bargain collectively with any organization other than Union No.
.21084 until and unless it was established that Union No. 21084 no
longer represented a majority of the employees of the said respondent
and that some other organization or that no organization represented
the majority of such employees. The answer of the respondent
Guggenhime further alleged that McCauley had resigned his position
with said respondent in order to.become an officer of Union No. 21084
and had thereafter left the State of California, and that on returning
to said State he was offered reemployment by the said respondent but
refused to accept it. The answer of the respondent Hamlin further
alleged that Gullo had part time employment with the respondent
during the first part of the year 1938; that in June 1938 Gullo absented
himself for a time and was not available when the said respondent
required his services and another person was employed to do the
required work; that Gullo, finding his place filled by another person,
complained to Union No. 21084 that his seniority rights had been
breached; but that Union No. 21084 stated that he had lost his senior-
ity rights because of non-payment of clues and should be given no
preference of employment.
On July 17, 1939, at the hearing hereinafter mentioned, the Federa-
tion and Union No. 21084 filed their respective motions to intervene
in these proceedings. In their said motions the Federation and Union
No. 21084 stated that the complaint might by inference indicate
falsely that the Federation and the respondents were parties to a
conspiracy so to organize Union No. 21084 that it would be subservient
ABINANTE & NOLA PACKING CO. 1293
to and controlled by the respondents and not function as a bona fide
labor organization, and they denied such inference. The motion of
Union No. 21084 further stated that the complaint might by inference
indicate falsely that Union No. 21084 since the time of its organiza-
tion and to date was controlled by and subservient to the respondents,
and denied such inference. The motion of Union No. 21084 further
denied that Union No. 21084 was organized at the instigation and
with the assistance of the respondents for the purpose of being con-
trolled by and subservient to them, denied that Local 1-6 represented
a majority of the respondents' employees in the bargaining unit des-
cribed in the complaint, and affirmatively alleged that Union No.
21084 is and since August 1937 has been the representative of the
majority of such employees.
Pursuant to notice, a hearing was held at San Jose, California,
from July 17 to August 4 and on August 11, 1939, before J. J. Fitz-
patrick, the Trial Examiner duly designated by the Board. The
Board, the respondents, Local 1-6, Union No. 21084, and the Federa-
tion were represented by counsel and participated in. the hearing.
At the beginning of the hearing Union No. 21084 and the Federation
filed with the Trial Examiner the motions for leave to intervene
described above. The Trial Examiner granted the motions and
ordered that the said interveners be permitted to appear. and offer
evidence as to any of the matters affecting their respective interests
as they appeared in the formal pleadings. Full opportunity to be
heard, to examine and cross-examine witnesses, and to introduce
evidence bearing on the issues was,afforded all parties. At the com-
mencement of the hearing the respondents moved to strike from the
complaint paragraph 26 thereof, which alleged that Local 1-6 repre-
sented a majority of the employees, on the ground that such allegation
assumed the existence of the ultimate fact sought to be established in
the representation proceeding; and the interveners moved to strike
from paragraph 17 of the complaint the allegation that the plan
referred to in the said paragraph was entered into for the purpose of
organizing among the respondents' employees, through the Federation,
Union No. 21084, which would be controlled by and subservient to
the respondents and each of them, on the ground that the charges on
which the complaint was based made no reference to such allegations.
The Trial Examiner denied these motions. At the close of the
Board's case and again at the conclusion of the hearing the Trial
Examiner granted motions by counsel for the Board that the com-
plaint be amended so as to conform to the proof, with respect to
clerical errors, dates, and names. At the conclusion of all the testi-
mony the interveners moved to dismiss the complaint, except with
respect to the allegations of discrimination against McCauley and
1294 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Gullo. The respondents joined in said motion, and also moved to
dismiss the complaint in all respects for failure of proof. Ruling on
these motions was reserved by the Trial Examiner. During the
course of the hearing the Trial Examiner made various other rulings,
including rulings on objections to the admission of evidence. The
Board has reviewed all the foregoing rulings and finds that no prej-
udicial errors were committed. The rulings are hereby affirmed.
Local 1-6 and the interveners submitted briefs to the Trial Examiner.
On or about December 29, 1939, the Trial Examiner filed his Inter-
mediate Report, copies of which were duly served upon each of the
respondents, upon Local 1-6, and upon the interveners, in which he
denied the respondents' and interveners' said motions to dismiss the
complaint, and found that the respondents and each of them had
engaged in and were engaging in unfair labor practices affecting com-
merce within. the meaning of Section 8 (1) and (5) and Section 2 (6)
and (7) of the Act. He recommended that the respondents cease
and desist from their unfair labor practices and take certain action to
remedy the situation brought about thereby, and that the respondent
Guggenhime reinstate McCauley and the respondent Hamlin reinstate
Gullo to their respective former positions, with back pay.
On January 29, 1940, the respondents filed exceptions to the
Intermediate Report. On February 8, 1940, the interveners filed
exceptions to the Intermediate Report and on February 9, 1940,
filed supplemental exceptions to the Intermediate Report and re-
quested oral argument. In support of the supplemental exceptions
the interveners submitted an affidavit by one Elizabeth Taylor, duly
verified January 8, 1940. The respondents and the interveners also
submitted briefs in support of their exceptions, and Local 1-6 sub-
mitted a reply brief, attached to which was an affidavit by Earle
Baker, duly verified February 21, 1940, in reply to the above-
mentioned affidavit of Elizabeth Taylor.4
On May 21, 1940, pursuant to notice, a hearing was held before
the Board in Washington, D. C., for the purpose of oral argument.
Local 1-6, Union No. 21084, and the Federation were represented by
counsel and participated in the hearing.
The Board has considered the exceptions, supplemental exceptions,
the briefs which have been filed and the oral argument, and, in so far
as the exceptions are inconsistent with the findings, conclusions, and
order set forth below, finds them to be without merit.
Upon the entire record in the case, the Board makes the following:
4 The said affidavits of Elizabeth Taylor and Earle Baker, which related to alleged changes of designation
of bargaining agent by certain employees after the close of the hearing, have not been considered by us in
this Decision.
ABINANTE & NOLA PACKING CO. 1295
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENTS
The respondents are separately engaged in the processing and
packing of dried fruits and fruit products, and in the warehousing,
sale, and distribution thereof, and all operate one or more plants for
such purposes within the territory embraced by the contiguous
counties of Santa Clara and San Benito, in the State of California.
The business of the respondents constitutes almost the entire dried
fruit industry in-the said territory, which is one of the largest dried
fruit areas in the world. This case is concerned only with the 33
dried fruit plants of the respondents located in the said 2 counties,
all within a radius of 50 miles of each other. Substantially all the
products packed and processed by the respondents at the said plants
are obtained by them from sources within the State of California.
Abinante & Nola Packing Co. is the firm name used by a partner-
ship composed of S. R. Abinante and Frank S. Nola, who operate
a dried fruit plant in the Town of Cupertino, Santa Clara County.
The principal products processed or packed at the said plant are
apricots and prunes. During the last fiscal year prior to the hearing
the products of the said plant amounted-to approximately 2,000 tons,
valued at approximately $150,000, about 99 per cent of which were
shipped by.the said respondent from the plant mentioned to points
outside the State of California.
California Packing Corporation is a New York corporation, oper-
ating the following dried fruit plants within Santa Clara and San
Benito Counties: Plants Nos. 51, 54, and 153 in San Jose, Santa
Clara County, Plant No. 55 in Gilroy, Santa Clara County, and
Plant No. 88 in Hollister, San Benito County. The principal products
processed or packed at the said plants are prunes, apricots, pears,
.peaches, raisins, apples, and apricot pits. During the last fiscal year
prior to the hearing the products of its said plants amounted to
approximately 29,390 tons, valued at approximately $3,023,500, about
96 per cent of which were shipped by the said respondent from the
plants mentioned to points outside the State of California.
California Prune and Apricot Growers Association is a California
corporation, operating the following dried fruit plants within Santa
Clara and San Benito Counties: Plant No. 1 in Campbell, Santa Clara
County; Plant No. 2 in Morgan Hill, Santa Clara County; Plant No. 3
in Gilroy, Plant No. 9 in Hollister, and Plants Nos. 6, 10, 11, 17, and
70, and the Machine Shop, in San Jose. The principal products proc-
essed or packed at the said plants are prunes, apricots, peaches, and
mixed fruits. During the last fiscal year prior to the hearing the
products of its said plants amounted to approximately 95,000 tons,
.1296 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
valued at approximately $9,500,000, about 90 per cent of which were
shipped by the said respondent from the plants mentioned to points
outside of the State of California.
C. L. Dick & Company is a California corporation operating a dried
fruit plant in San Jose. The principal products processed or packed at
its said plant are prunes. During the last fiscal year prior to the hear-
ing the products of its said plant amounted to approximately 2,300
tons, valued at approximately $197,000, about 95 per cent of which
were shipped by the said respondent from the plants mentioned to
points outside the State of California.
Guggenhime & Company is a Delaware corporation, operating a
dried fruit plant in San Jose and one in Hollister. The principal
products processed or packed at its said plants are prunes, apricots,
peaches, apples, pears, cherries, nectarines, figs, silver prunes, cherry
stems, and apricot kernels. During the last fiscal year prior to the
hearing the products of its said plants amounted to approximately
15,761 tons, valued at approximately $1,600,000, about 96.63 per cent
of which were shipped by the said respondent from the plants men-
tioned to points outside the State of California.
Hamlin and Company is a California corporation operating two
dried fruit plants in San Jose. The principal products processed or
packed at its said plants are prunes, apricots, and pears. During the
last fiscal year prior to the hearing the products of its said plants
amounted to approximately 2,500 tons, valued at approximately $150,-
000, about 90 per cent of which were shipped by the said respondent
from the plants mentioned to points outside the State of California.
Libby, McNeill & Libby is a Maine corporation, operating a dried
fruit plant in the City of Santa Clara. The principal products proc-
essed or packed at its said plant are apricots, peaches, and prunes.
During the last fiscal year prior to the hearing the products of its
said plant amounted to approximately 6,346 tons, valued at approxi-
mately $800,828.32, about 95 per cent of which were shipped by the
said respondent from the plants mentioned to points outside the State
of California.
Mayfair Packing Company is the firm name used by a partnership
composed of Joseph P. Perrucci and F. L. DiNapoli and operating a
dried fruit plant' in San Jose.' The principal products processed or
packed at its said plant are prunes, apricots, and pears. During the
last fiscal year prior to the hearing the products of its said plant
amounted to approximately 15,000 tons, valued at about $950,000,
approximately all of which were shipped by the said respondent from
the plants mentioned to points outside the State of California.
5 This respondent was formerly known as Martine Packing Company.
ABINANTE & NOLA PACKING co. 1297
Richmond-Chase Company is a California corporation, operating
the following dried fruit plants within Santa Clara and San Benito
Counties: Plant No. 1 in Edenvale, Plant No. 2 in San Jose, Plant No.
5 in Gilroy, and Plant No. 9 in Mountain View. The principal prod-
ucts processed or packed at the said plants are prunes, apricots,
peaches, and pears. During the last fiscal year prior to the hearing
the products of its said plants amounted to approximately 12,500 tons,
valued at about $1,500,000, approximately all of which were shipped
by the said respondent from the plants mentioned to points outside
the State of California.
J. S. Roberts is an individual operating a dried fruit plant in San
Jose. The principal products processed or packed at the said plant are
prunes, apricots, peaches, and pears. During the last fiscal year prior
to the hearing the products of his said plant amounted to approxi-
mately 1,750 tons, valued at approximately $80,000, about 99 per
cent of which were shipped by the said respondent from the plant men-
tioned to points outside the State of California.
Rosenberg Bros. & Co. is a California corporation operating a dried
fruit plant in the City of Santa Clara and one in Hollister. The
principal products processed or packed at the said plants are prunes,
apricots, peaches, pears, walnuts, and apricot kernels. During the
last fiscal year prior to the hearing the products of its said plants
amounted to approximately 33,000 tons, valued at approximately
$3,859,232; about 95 per cent of which were shipped by the said respond-
ent from the plants mentioned to points outside the State of
California.
Warren Dried Fruit Co. is the firm name used by C. D. Stevens,
its sole owner, who operates a dried fruit plant at San Jose. The
principal products processed or packed at the said plant are prunes.
During the last fiscal year prior to the hearing the products of the said
plant amounted to approximately 4,000 tons, valued at about $275,000,
approximately all of which were shipped by the said respondent from
the plant mentioned to points outside the State of California.
Winchester Dried Fruit Companiy is a California corporation oper-
ating a dried fruit plant in San Jose and one in Campbell. The
principal products processed or packed at the said plants are prunes,
apricots, pears, and peaches. During the last fiscal year prior to the
hearing the products of the said plants amounted to approximately
3,000 tons, valued at about $116,693.39, approximately all of which
were shipped by the said respondent from the plants mentioned to
points outside the State of California.
Each of the respondents admitted causing and having, over a long
period of time, caused large quantities and substantial proportions of
the products processed and packed at its above-mentioned -plants to
1298 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
be sold and transported in interstate and foreign commerce from the
said plants to, into, and through States and territories of the United
States other than California, and to foreign countries.
II. THE ORGANIZATIONS INVOLVED
Warehousemen's Union, Local 1-6, International Longshoremen's
and Warehousemen's Union, is a labor organization affiliated through
its parent body, International Longshoremen and Warehousemen's
Union, with the Congress of Industrial Organizations, herein called
the C. I. 0., and admitting to its membership employees of the
respondents.
Dried Fruit and Nut Packers Union. No. 21084 of Santa Clara
County, California, is a labor organization chartered as a Federal labor
union by the American Federation of Labor, herein called the A. F.
of L., and admitting to its membership employees of the respondents.
California State Federation of Labor is a labor organization com-
posed of California locals of National and International unions affili-
ated with the A. F. of L., and of A. F. of L. Federal labor unions
located in California.
III. THE UNFAIR LABOR PRACTICES
A. The background
In about 1933 employees at Plant No. 11 of the respondent Growers
Association were organized into a union which was granted a charter
by the American Federation of Labor. Four employees were dis-
charged, and the old National Labor Relations Board, finding that
such discharge had been caused by their union activities, brought
about their reinstatement. The labor organization involved eventually
became defunct.
Prior to August 1937 Earle T. Baker, an employee at Growers
Association Plant No. 6, discussed with several other employees the
idea of organizing the Growers Association plants under the old charter.
He mentioned the idea to the general superintendent of all the plants
of the Growers Association in the State,' and asked if the Association
would post notices on the plant bulletin boards stating that it would
not interfere with the organization of the employees or discriminate
against any of them. The general superintendent took the matter up
with Kluge, the assistant manager of the Growers Association, but
got no answer from him. The general superintendent told Baker that
he intended to discuss the question with the higher officials of this
respondent, and possibly with representatives of other employers in
6 Edward Barker.
ABINANTE & NOLA PACKING CO. 1299
the dried fruit industry, but Baker heard no more concerning
the matter.
In the latter part of July 1937 one Patrick Bocca was sent by an
A. F. of L. union for the dried fruit industry, located in Oakland,
California,' to organize the employees in the industry in the Santa
Clara County area. He started organizing in the Santa Clara plant
of the respondent Rosenberg, and succeeded in enrolling d number of
members. A preliminary meeting was held, officers were elected.,
and application was made to the A. F. of L. in Washington for a
charter.
B. Interference, restraint, and coercion
News of the organizational activities at the Rosenberg plant was
published in a San Jose newspaper 8 on July 30, 1937, and came to
the attention of the respondents, who discussed the matter with each
other. This discussion took place at meetings of a body known as
the "Field Practice Group," which had as members the respective
managers of the various respondents, and which held frequent meetings
for the purpose of discussing problems relating to the dried fruit
industry.' The Field Practice Group thought it advisable, if a union
was to be organized, that it be affiliated with the A. F. of L., rather
than its rival, the C. I. 0.10 and "that all possible speed must be used
in effecting this -organization because they feared that the C. I. 0.
might come in here if they heard of it, attempting to organize, and
create considerable trouble." They came to the conclusion, however,
that Bocca's efforts were "the wrong way to approach this matter,"
feeling one of its members stated, that if a union was going to be
organized they "would like to have it done in all of the plants," thus
promoting "a more harmonious relationship between the employers
and the employees."
Accordingly, the Field Practice Group instructed Ed Richmond,
president of Richmond-Chase, to interview Edward Vandeleur,
secretary of the Federation, on behalf of the Group, concerning
Vandeleur's sending an organizer to San Jose to carry on the organi-
zational work. Richmond communicated with Vandeleur and reached
an understanding with him, whereupon, on or at some time shortly
before August 3, Vandeleur sent one Howard Reed, an organizer
7 Dried Fruit and Nut Packers Local 20,020.
8 The San Jose News. This paper was circulated in the general vicinity of San lose, the center of which
is only 3 miles from Santa Clara.
Y The findings in this section relating to the instigation of Union No. 21084 are based primarily upon the
testimony of James E. McCauley, the first president of the organization, who derived his knowledge from
James Blaurock , the district manager of the respondent Guggenhime and its representative at the meetings
of the Field-Practice Group above mentioned. This testimony, as well as the testimony of McCauley
and other witnesses on which are based the findings herein relating to the formation of Union No. 21084.
the assistance rendered it by the various respondents , and the respondents ' interference in its affairs, is
undenied and is corroborated by other facts.
10 The C . I. O. was then known as Committee for Industrial Organization.
1300 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employed by the Federation, to take charge. Reed and Vandeleur
immediately telegraphed to the office of the A. F. of L. in Washington
requesting that the charter applied for by the Rosenberg employees,
referred to above, be held in abeyance. The charter was not issued.
Vandeleur stated a short time later that he had wanted the entire
dried fruit industry organized and that he had "knocked over" the
charter in question, "other arrangements" having been "in the
making" at that time.
On or about August 3, 1937, in the morning, the Field Practice
Group met with Reed and one Thomas Randazzo, a San Jose attorney
in whose offices Reed established his headquarters. The Field
Practice Group and Reed agreed that the employees should all become
members of the A. Y. of L. and that they should do so as quickly as
possible, because they did not want the C. I. O. to come in and
organize. They decided that the respondents would select a group
of their respective employees to act as an organizing committee, and
that the members of that committee would in turn choose fellow
employees to assist them.
On that same day the six respondents owning the larger dried fruit
packing plants,11 all of which were located in the cities of San Jose and
Santa Clara, selected their respective representatives for the organizing
committee and sent them to Reed to obtain instructions.12 The
committee so chosen consisted of James F. McCauley, of Guggenhime;
Walter Baum of California Packing Plant No. 51; Olga Sibona 13 and
J. N. Groves, of Rosenberg; John Rampone, of Richmond-Chase
Plant No. 2; George Songer and Velma Gorden, of Growers Associa-
tion Plant No. 11; and Robert Bonn, of Libby.14 The members of
the committee met at Reed's office that afternoon and again the next
morning.15 Each reported to Reed that he had been sent by his
employer to obtain membership application blanks and receive in-
structions how to proceed to organize the plants, and Reed and
Randazzo indicated that they had expected the committee members.
Reed told them that the Federation intended to organize the plants
speedily lest the C. I. O. do so and thwart their action. Pointing out
that the committee members had been selected by their respective
employers, he assured them that they "would have the free run of
the plants" for organizing and that they could do the organizing
during working hours. He instructed them to appoint from among
their fellow-employees any assistants needed, saying that arrange-
11 These respondents were known as "The Big Six."
12 The selection of these organizers , as well as the selection of organizers for the smaller plants , which took
place later, is discussed below.
13 Sibona testified at the hearing under her married name, Sincich.
14 Several other employees , including Jack Olivera , of Rosenberg, also appeared at Reed's office at various
times. Presumably they were appointed in the same manner as the original eight.
15 McCauley who had also reported to Reed on the morning of the first day, had organized his plant
prior to the first afternoon meeting.
ABINANTE & NOLA PACKING CO. 1301
ments had been made with the respondents to let the employees doing
the organizational wort: have time oft for the purpose, and that no
one would lose any time or pay while so engaged. He showed the
committee members how to fill out the application blanks and cash
receipts which he provided and told them that arrangements would
be made to deduct initiation fees and first month's dues from the
pay checks of employees without the necessary funds. Randazzo
furnished forms for applicants to fill out authorizing such deductions.
Reed submitted to the A. F. of L. a telegraphic application for a
charter, and on August 4, 1937, the charter was issued to the eight
organizers named above. The members of the committee returned
to their respective plants and within a few days, as a result of exten-
sive activities which are discussed below, organized a large majority
of their fellow employees.
In Union No. 21084's first election, held on August 11, McCauley
was elected president and Earle Baker, of Growers Association Plant
No. 6, was elected secretary-treasurer. Both quit their jobs on
taking office. On about August 22 McCauley suggested to Vandeleur
that since Union No. 21084 was about to enter into wage negotiations,
it should organize the remaining plants. Vandeleur approved and
instructed McCauley to consult Richmond who, he said, would make
the necessary arrangements and put McCauley. in touch with people
in the various plants who would make such organization possible.
On about August 24 McCauley and Baker interviewed Richmond
and informed him of Union No. 21084's purpose. Richmond told
them to see certain officials of the respondents in question, generally
the company heads or the superintendents, -and instructed them to
consult him again if they encountered any difficulty. The two men
proceeded as instructed and by October 1937 Union No. 21084 had
approximately 2500 members, equivalent to about 98 per cent of the
non-supervisory employees, in the respective dried fruit plants of the
respondents located in Santa Clara and San Benito Counties.
Shortly after their election the officers of Union No. 21084 entered
into collective bargaining negotiations with a committee representing
the various respondents which, through the committee, assured
representatives of the said union that the respondents wanted Union
No. 21084 perpetuated and would therefore adopt the policy of assisting
it in the collection of clues and in enrolling new members, and "would
shut their eyes to the methods" used by Union No. 21. 084 "as long as
they could stay legally clear" in what was done.
We shall now discuss the manner in which each of the respondents
individually carried out the plan an([ course of action agreed upon by
the Field Practice Group.
323429-42-83
1302 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Guggenhime. Upon his return to the plant from the Field Practice
Group's meeting with Reed, James Blaurock, the district manager
of Guggenlime, summoned from his work James F. McCauley, who
was, the head mechanic and one of the best paid employees in the plant,
and informed him of the events at the recent meetings of the Field
Practice Group. Blaurock, who was the highest Guggenhime official
in Santa Clara and San Benito Counties, having full charge of all
operations in that area, asked McCauley to take charge of the or-
ganization of the Guggenhime employees and, receiving McCauley's
consent, directed him to report to Reed for instructions. McCauley's
visits to Reed's office have already been discussed above. After
receiving his instructions together with membership application and
receipt blanks on his first visit to Reed's headquarters, McCauley
reported to Blaurock what had occurred. Blaurock said, "That is
good; now, it is up to you." As to Reed's suggestion that McCauley
select assistants, Blaurock referred McCauley to Superintendent
Morrella. Blaurock assured McCauley that the respondent would
continue to pay him while he did the organizational work, and that
the employees who assisted him would lose no" time" while doing so.
Morrella called from their work four employees selected as assistants
by McCauley, 16 who explained to them Blaurock and Reed's instruc-
tions and told them that Blaurock had assured him that they would
lose no "time" as a result of aiding in the campaign. At least three 17
of the four were supervisory employees.'8 That noon McCauley
explained the organizational campaign to the plant employees, whom
Morrella had assembled for that purpose at his request, and told them
who his assistants were. He stated that Guggenhime was anxious
to have everyone except engineers join Union No. 21084 and to have
the organization completed promptly and that since it was too big a
job to communicate with the employees at their homes, it would be
necessary to organize during working hours. The meeting was
attended throughout by Superintendent Morrella and the depart-
16 The four assistants were Puccinelli, Clarence Bogliolio, Fred Keller, and Mrs. Enfintino.
17 Puccinelli, Bogliolio, and Keller.
r6 The respondents and the interveners contend that it is immaterial that supervisory employees partici-
pated in organizational activity. The record shows that supervisory employees, particularly the minor
ones, were active in both Union No. 21084 and Local 1-6, and that their participation in such activity was not
necessarily on their employers' behalf and did not in itself necessarily indicate their employers ' approval of
their activity or of the organizations involved. Indeed, at least one respondent-California Packing-
objected to its departmental foreman joining Union No. 21084. However, even though, as asserted, the
minor supervisory employees participated in organizational activities on behalf of both labor organizations,
such supervisory employees' activity on behalf of Union No. 21084 upon the respondents' express directions
and accompanied by other manifestations of their approval of the organization render the respondents
chargeable with their acts. Moreover, apart from the minor supervisory status of these employees, the fact
that their acts were taken at the respondents' express direction and request makes them the respondents'
agents for the purpose and their acts are attributable to the respondents . See Int . Assn. Machinists v.
N. L. R. B. (Serrick Corp.) 110 F. (2d) 29 (App. D. C.), cert. granted 311 U. S. 72, affirming 8 N. L. R. B.
621; N. L. R. B. v. Christian Board of Publication, 113 F. (2d) 678 (C. C. A- 8), enforcing 13 N. L. R. B. 534;
Matter of The Western Union Telegraph Company, a Corporation and American Communications Associa-
tion, 17 N . L. R. B., 34, enf ' d as mod. , Western Union Telegraph Co. v. N., L. R. B., 113 F. (2d) 992 (C.
C. A. 2).
ABINANTE & NOLA PACKING CO. 1303
mental foremen. It terminated about 15 minutes past the end of
the employees' lunch period. Morrella then told the four assistants
to "go to work" and enroll members , and he approved McCauley's
instructions to them to go through the plant and see all the employees.
Circulating among the employees while they were at work,
McCauley and his assistants signed up substantially all the employees
that afternoon . 19 Morrella assigned an office employee to help
McCauley collect initiation fees and dues, allowing him the use of
the office and a typewriter, and the respondent kept the day's receipts
overnight for McCauley in its safe. McCauley succeeded in organiz-
ing the Guggenhime plant promptly whereupon he was instructed by
Reed and Blaurock to visit plants of the other respondents and assist
the organizers there, which he did.
McCauley also conducted an active campaign in his own and other
plants on behalf of several candidates , including himself, in Union
No. 21084's first election. Superintendent Morrella, and hence
the respondent Guggenhime, knew of his electioneering in the Guggen-
hime plant. On about August 10, at McCauley's request, Guggen-
hime, through Morrella, called its employees to a meeting at the plant
for the purpose of promoting the candidacy for union office of Walter
Baum, the person selected by the respondent California Packing to
organize its Plant No. 51. The election was held on August 11,
during working hours, at a public auditorium and Morrella delegated
to two employees the task of conveying the Guggenhime voters to the
polling place. He personally directed the procedure, checking off
the names of employees as they went to vote and returned. The
employees were paid their regular wages by Guggenhime for the time
they spent voting.
McCauley carried on his organizational and election activities in
the various plants during working hours but was paid his full- salary
by Guggenhime for the time spent. Subsequently Blaurock told
McCauley that Reed had indicated that the union to be formed would
reimburse Guggenhime for wages paid employees engaged in organ-
izational activities, but it does not appear whether or not such
reimbursement ever was made.
Pursuant to arrangements made at Richmond's conference with
McCauley and Baker on August 24, referred to above, Robert Taggart,
the man in charge of Guggenhime's receiving plant at Hollister, shortly
thereafter introduced McCauley to the only two employees then
working there, telling them that McCauley had come to get their
applications for membership in the A. F. of L. union, and that anything
he said "would be all right." McCauley then told the employees,
io The only exceptions were Greenbaum , the shipping clerk , and Knobel , the receiving clerk , both salaried
employees , who refused to join Union No. 21084 until they first spoke to Blaurock . They saw Blaurock
and joined the next moaning.
1304 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
among other things, that he had been appointed by Blaurock to
organize the San Jose plant and that it was "perfectly all right to
join the Union." The employees immediately joined and paid their
initiation fees and clues. All this occurred during working hours and
in Taggart's presence.
In October 1937 one LaTorre, an employee of Guggenhime, was
reluctant to join Union No. 21084 and actively discouraged other
employees from paying dues. Having in mind the respondents'
promise, referred to above, to assist Union No. 21084 in the collection
of dues and in enrolling new members, McCauley reported the matter
to Superintendent Morrella, who told LaTorre, during working hours,
11 , . . we don't want any trouble around here . . You better sign
it," whereupon LaTorre forthwith signed an application. In 1938
Morrella permitted Baker to remove from the time-clock rack the
cards of some eight or ten employees who were delinquent in their
union dues, and when the men found their cards missing, he sent them
to Baker, who, in Morrella's' presence, obtained from them their
dues or a satisfactory promise to pay.
California Packing. During the afternoon following Reed's meet-
ing with the Field Practice Group, F. J. Prowse, the plant superin-
tendent at California Packing Plant No. 51, called Walter Baum
from his work in the plant and, informing him that all the dried fruit
plants were going to be organized, said, ". . . we are going to or-
ganize this plant." He told Baum that the union to be set up was
to be one affiliated with the A. F. of L., "that they didn't want the
C. I. O. to come into any of the dried fruit plants," and that if it did
so, it would ruin the industry. Prowse asserted that he and the
assistant superintendents all had agreed that Baum would be a good
organizer, and he asked Baum to take over the organization of Plant
No. 51.. l3aum assented, and i4 of an hour later, when a telephone call
came to Prowse from Reed's headquarters for the organizer for that
plant, Prowse had Baum quit work and go there. Baum later re-
ported to Prowse with the application blanks obtained from Reed
and requested that some. one be assigned to help him organize the
women employees. Prowse directed Mrs. Pierce, a supervisory em-
ployee, to stop her work and assist Baum. Later that day, of his
own accord, Prowse ordered another employee, Al Thompson, to
help Baum and on about August 6 Mrs. Melton, the head forewoman
in charge of the women employees, instructed a fourth employee,
Eva Papeschi, to help Mrs. Pierce, commenting at the same time,
. . . We are all going to join the union . . . "
Baum and his assistants were permitted to solicit members through-
out the plant during working hours and on one occasion the respondent
kept part of the day's receipts of initiation fees and dues overnight
ABINANTE & NOLA PACKING CO. 1305
for Baum in its safe. Baum told the employees that Prowse had
selected him to organize them and that they would have to join
Union No. 21084, since those were the wishes of California Packing.
After he had discussed the matter with about a dozen employees,
most of the others signed quickly, many remarking that they thought
it advisable to do so if they wanted their jobs. Superintendent
Prowse, Forewoman Melton, and Roland Roderick, district manager
of California Packing, requested and received reports from the organ-
izers as to the progress of the campaign. Melton assisted in securing
the application of one Helen Patterson.20 As a result of these activi-
ties, within 2 days all the eligible employees;. numbering several hun-
dred, except the department heads, had become members of Union
No. 21084. Union No. 21084 was anxious to have the department
heads as members and several did sign applications, but Baum, on
instructions from California Packing, destroyed the applications.
Superintendent Prowse suggested to Baum that he seek some
office in Union No. 21084, and after Baum was nominated to run in
the first election, California Packing rendered considerable aid to him,
as well as to three other candidates on his "slate." It printed cards
advocating their election,21 and permitted Baum and at least one
other employee to electioneer in Plant No. 51. during working hours.
Baum electioneered in plants of other respondents also during working
hours. In addition, District Manager Roderick obtained from the
president of the respondent Richmond-Chase a promise to aid Baum's
candidacy among the latter's employees.
Baum performed no work during the period from about August 5
to August 14, 1937, other than the various activities above referred
to, but he, like the other organizers, was paid his regular wages by
California Packing for the time he spent organizing and election-
eering. California Packing instructed Baum, however, not to sign
his time card and to tell inquirers that he was being paid by the
A. F. of L.
In late August 1937, pursuant to Richmond's instructions to
McCauley and Baker at their August 24 conference referred to above,
McCauley interviewed Roderick, district manager of California.
Packing and its highest official in that area, .relative to the organiza-
tion of Plants Nos. 55 and 88 of that respondent, located at Gilroy
and Hollister respectively. As a result. of that interview, Roderick
20 Patterson, when first approached by Papeschi, belligerently said that Papeschi did not know enough
about unions to sign her up and that she would consult her husband about joining. Papeschi reported this
to Forewoman Melton, who instructed her to approach Patterson when Melton was nearby and promised
that if Patterson got "sassy" again, she would be discharged. Melton stood 3 feet away from the place where
Patterson was working on the conveyor belt when Papeschi, later that day, again asked Patterson to join.
Patterson's demeanor changed completely and, while she still wanted to.speak to her husband first, she said
she thought she might join the next day, which, in fact, she did.
21 The candidates so aided were Baum , McCauley, Miljarak , and Friedrichs.
1306 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
instructed Sullivan, the person in charge of Plant No. 55, to cooperate
with McCauley in organizing the employees there and to have Ken-
neth Spofford, one of the employees, act as plant steward. McCauley
visited Plant No. 55 a few days later and Sullivan called Spofford to
meet him. McCauley and Sullivan told Spofford that Roderick had
sent McCauley there and arranged to have him meet Spofford and
that California Packing wanted all the employees to join Union No.
21084. Spofford signed an application in Sullivan's presence and
agreed to sign up the rest of the employees, which he did within 2
days. As a result of the above-mentioned interview, Roderick also
instructed. the buyer at Plant No. 88, who was the person in highest
authority there, to cooperate with McCauley in organizing the em-
ployees and to have a certain employee, one Whalen, act as steward.
McCauley visited Plant No. 88 the day he visited Plant No. 55 and
Peters, the plant superintendent, on instructions of the buyer, called
Whalen to meet him. Peters told Whalen, in the buyer's presence
and with his apparent approval, that Roderick had given orders that
Whalen act as steward and lend McCauley any cooperation needed
to complete the organization. Whalen agreed to do so and he him-
self forthwith signed an application. Superintendent Peters told one
employee that day that if he was going to work in the plant, he would
have to sign an application. Whalen signed up all the employees
within a few days. Pending McCauley's return to the plant, Cali-
fornia Packing permitted Whalen to keep the applications and the
moneys collected in its safe.
In early September 1937 McCauley paid another visit to District
Manager Roderick, this time with reference to the organization of
California Packing Plant No. 54 which, though located in San Jose,
had not yet been organized. Roderick instructed Superintendent
Lowe of Plant No. 54 to have one Wurtsbaugh, a part-time foreman,
organize the employees and act as steward. Wurtsbaugh induced
Roderick to release him from the assignment and Lowe got an em-
ployee named Mills to substitute for him. Shortly thereafter Mc-
Cauley Spoke to Lawrence, the superintendent of Plant No. 153,
about Mills' organizing the employees there also, since the two plants
were very near each other. Lawrence was agreeable and he promised
McCauley to see to it that his employees joined Union No. 21084.
Mills got applications from all the employees in both plants.
In the early part of 1938, prior to the signing of the 1938 agreement,
hereinafter discussed, one Ciriglano, an employee at Plant No. 51,
refused to pay his union dues. The matter was reported to Super-
intendent Prowse, who induced Ciriglano to pay what he owed.
Rosenbergi. On the day when the organizing committee of Union
No. 21084 was being selected Louise Castro, the forewoman in charge
ABINANTE & NOLA PACKING CO. 1307
of all women employees at the Rosenberg plant in Santa Clara, called
Olga Sibona from her work and asked her if she "believe[d] in a union."
Receiving an affirmative reply, she told Sibona that the dried fruit
plants were going to be organized and asked her to go to Reed's office
and get instructions how to proceed, which Sibona did. J. N. Greves,
another Rosenberg employee, was also sent by this respondent to
Reed's office that day to receive instructions relative to the organiza-
tional campaign.
After receiving from Reed instructions and materials for organizing
her fellow employees, Sibona returned to the Rosenberg plant and
asked Forewoman Castro to assign some women to assist her. Castro
selected Frieda Greves, Alice Nichols, and Mrs. Borba and with their
assistance Sibona proceeded, during working hours,-to solicit member-
ship applications among the women employees. Sibona stated to the
employees that the respondent Rosenberg "approved of the union."
Within approximately a week all the women employees, numbering
about 100, signed applications. At the same time, also during working
hours, Jack Olivera, whom Rosenberg had sent to Reed's office for
similar instructions and materials solicited members among the men
employees, close to 100 of whom joined during August 1937. Ap-
proximately 10 women employees signed authorizations for the deduc-
tion of their initiation fees and first month's dues from their next pay
checks, and upon presentation of the authorizations, Rosenberg paid
Sibona the amounts in question. Rosenberg paid Olivera and Sibona
their regular wages for the time they spent organizing the employees.
In late August 1937, pursuant to Richmond's instructions to Mc-
Cauley and Baker at their August 24 conference already mentioned,
McCauley interviewed Lietz, district manager of Rosenberg and its
highest official in San Benito and Santa Clara Counties, relative to the
organization of Rosenberg's receiving plant in Hollister. As a result
of that interview Lietz instructed Sheriffs, who was Rosenberg's
Hollister buyer and in complete charge of the Hollister plant, to
introduce McCauley to the employees there, and he said that anything
McCauley told the employees "would be all right." McCauley
visited the Hollister plant within a few days and was introduced to
the employees by Sheriffs, who told them that Lietz had said they
were to give McCauley their applications. The employees, who
numbered at the time only three, stopped their work and, in Sheriffs'
presence, signed applications for membership in Union No. 21084.
Thereafter McCauley was permitted to come to the plant during
working hours from time to time and collect from the steward ap-
pointed by him the dues paid by the employees. In June 1938 the
foreman of Rosenberg's Santa Clara plant persuaded the assistant
1308 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
receiving clerk, who had discontinued paying union dues, to maintain
himself in good standing in the union.
Libby. Robert Bonn, the organizer whom Libby requested to go
to Reed's office for instructions as to the organization of its employees,
returned to that respondent's plant with the application blanks
obtained from Reed and, during working hours, proceeded to solicit
members. Bonn was the head maintenance mechanic in the plant.
Although for a period of 3 or 4 days he slid none of his usual work,
Libby paid him his regular wages. Cupples, the assistant superin-
tendent, directed the head laboratory woman to allow Gertrude Silva,
a laboratory employee, to help Bonn sign up the women *employees.
Forewoman Jordan then sent the women employees one by one into
the laboratory, where Bonn asked them to sign applications, which
Silva helped fill out. This occurred during working hours, and Silva
was paid her regular wages for the time so spent. While Bonn was
organizing the employees, Assistant Superintendent Cupples went
about the plant asking various employees if they had joined Union
No. 21084 and advising them to do so for the sake of their future em-
ployment. Over 80 employees joined the organization within 2 or
3 days.
Seventy-five of the applicants did not pay their initiation fees and
first month's clues, amounting to $3.00, at the time they signed their
applications. On the clay prior to the following pay clay- these appli-
cants were sent by their foremen to the superintendent's office, where
Superintendent Fisher handed each the sum of $3.00 in cash, which
each forthwith turned over to Bonn, who was present in the office with
Fisher. The $3.00 was then deducted from the employees' wages.
In about June 1938 a number of Libby employees joined a union
affiliated with the C. I. 0.22 Breton, vice president of Libby, went
to the office of Union No. 21084 to discuss the matter with Baker,
its secretary-treasurer. Breton told Baker that the problem was
Union No. 21084's not Libby's; that the employees had the right
under the Act to join any organization they chose to join and that
Libby could not discharge them for doing so. Subsequently, how-
ever, Libby permitted two officials of the A. F. of L. Central Labor
Council to install themselves in the buyer's office and interview the
suspected leaders of the defecting group. Moreover, Baker told
Superintendent Fisher or Assistant Superintendent Cupples that
Union No. 21084 wished to. post signs in the plant relating to the
defection, and he requested that Fisher and Cupples get out of sight
so that the signs could be posted. Subsequently Baker and Mc-
Cauley posted signs in the plant directed against the C. I. 0.23 We
22 Thirty-four of the 39 men then employed at the plant joined.
23 One of the signs read, "Join the C. I. 0. and see our jails;" another, placed on a rubbish can, said,
"Throw your C. I. 0. rubbish in here."
ABINANTE & NOLA PACKING CO. 1309
find that Fisher and Cupples absented themselves from the room
pursuant to Baker's request in order to permit the posting of, the
signs. The employees in question reaffirmed their allegiance to
Union No. 21084.
In the latter part of October 1938 Superintendent Fisher told an
employee he had heard rumors that some of the men were joining
the C. I. 0., and added, ". . . we have been treating you boys here
pretty well in the plant, don't you think? . . . Well, if the C. I. O.
ever gets in here it will be an awful big mistake, because . . . the
higherups will not stand for the C. I. O. coming into this plant."
Growers Association. On the day of Reed's meeting with the Field
Practice Group George Songer and Velma Gordon, supervisory
employees at Growers Association Plant No. 11, appeared at Reed's
office pursuant to their employer's request that they go there for
instructions as to the organization of this respondent's four dried
fruit packing plants in San Jose. Thereafter they quit their regular
work at Plant No. 11, Gordon for a few days find Songer for about
2 weeks, and, during working hours, organized the employees of the
four said plants.
At Plant No. 6, on about August 6, Superintendent Atkinson
presented Songer to the foreman, forewomen, and strawbosses and,
pursuant to instructions from Kluge, assistant general manager of
the Growers Association, ordered them to give Songer all possible
assistance. Foreman Zimmerman assigned one Careaga to assist
Songer and Forewoman Telefsen assigned one Audrey Jones to
organize the women employees.21 Careaga and Jones solicited mem-
bers during working hours, Careaga most unwillingly, since he favored
the C. I. O. The women empolyees applied promptly, but almost all
the men refused to sign until Earle Baker, after about 3 clays, gave
them his assurance that the organization was bona fide.
At Plant No. 10, on about August 6, Superintendent Combs called
Ellis Holmes from his work to meet Songer, who requested Holmes
to sign up the employees. Holmes asked several employees to join
Union No. 21084 but none did so at his solicitation. Songer and
Gordon, however, obtained applications from a number of the em-
ployees.
At Plant No. 11, early in August, Gordon set up headquarters in
the office of Gilardin, the head forewoman, who personally or through
the "relief girls" ordered all the women employees to leave their
work and go to see Gordon. Many of the employees found Fore-
woman Gilardin in the office with Gordon when they arrived there.
Gilardin advised one employee that she might as well join imme-
diately, "because you will have to sooner or later." and later she
i4 In spite of Atkinson 's orders, Earle Baker, then grading foreman at Plant No . 6, refused Songer 's request
for a man to assist in the organization of the plant.
1310 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
assisted Union No. 21084 by delivering union membership books to
employees who had paid their dues. Songer informed employees at
Plant No. 11 that the Growers Association was "back of" Union No.
21084 and had instructed him to organize the plant, and that the
more quickly the employees signed up, the more pleased the Asso-
ciation would be; and Gordon, who was an assistant forewoman,
warned an employee that the employee "would have to join or else."
At Plant No. 17 Songer and Gordon were assisted in soliciting
members by Joseph Rose. A short time after this Cavallero, general
manager of the Growers Association, stated to Alice Davis, an employe
at Plant No. 17, that he thought the A. F. of L. was the "best organi-
zation," and that lie did not want the C. I. O. in the plant, since that
would result in its being closed by strikes. In September 1937, when
two employees at Plant No. 17 refused to joint Union No. 21084, they
were reported to Superintendent Domenici, who offered to "take
care of" the matter. The two employees joined the following day.
We find that Domenici urged these employees to join Union No. 21084.
A large number of the applicants in each of the four plants authorized
the deduction from their wages of their initiation fees and first month's
dues and on August 9, the following pay day, such deduction was made
and the amount deducted paid over to Union No. 21084.25
On August 11 the employees at Plant No. 11 were given an hour off,
with pay, to vote in Union No. 21084's first election, and at Plant No.
6 Foreman Brainard made arrangements to transport to the polling
place, during working hours, an. employee who failed to vote. Velma
Gordon electioneered for McCauley among employees at Plant No. 11
whose work she was then supervising.
Although Songer and Gordon did none of their regular work while
they organized the various plants, they were paid their regular wages
by the Growers Association. When Songer asked permission to go
back to his regular work, Superintendent Parks ordered him first
to finish the job of organizing to which he had been assigned by the
Association.
On about August 26, 1937, McCauley and Baker requested Kluge,
assistant general manager of the Growers Association, to introduce
them to persons who would facilitate the organization of Plants Nos.
1, 2, 3, and 9 of the Association which were as yet unorganized. This
was pursuant to the instructions which Richmond had given them
at the conference of about August 24 already mentioned. Kluge re-
ferred Baker and McCauley to Schraeder, superintendent of Plant
No. 1, to Moore, superintendent of Plant No. 2, and to Thomas Tag-
gart, the man in general charge of Plants Nos. 2, 3, and 9, and Kluge
25 The Growers Association handed each employee the deducted sum in the form of a separate check which
he was required forthwith to endorse and hand over to a representative of Union No. 21084 or-the Growers
Association.
ABINANTE & NOLA PACKING CO. 1311
himself communicated with those individuals and informed them of
the situation.
Early in September, at Plant No. 1, located in Campbell, Baker told
Superintendent Schraeder. that he wanted an employee assigned to
act as organizer. Schraeder introduced Baker to one Sanders, an
employee with power to hire and discharge employees, and told
Sanders that he was proposing him to Baker as plant organizer.
Sanders accepted the assignment and signed up all the employees.26
Later he acted as plant steward and, pending visits to the plant of the
union representatives, would keep the dues collected by him in the
plant safe.
In early September or thereabouts McCauley visited Plant No. 2
of the Growers Association at Morgan Hill and spoke to Moore, the
man in charge. Moore called Phelps, whom Kluge had suggested as
plant organizer, told him the purpose of McCauley's visit, and stated
that Kluge had agreed that all employees of the Growers Association in
the outlying plants were to be members of Union No. 21084. Phelps
then introduced McCauley to several employees working about the
plant. He told them that McCauley had been sent by Kluge and that
the employees had to join Union No. 21084 since that was the Asso-
ciation's desire. Several employees signed applications that day and
the rest were signed up later by Phelps.
At about the same time McCauley visited Plant No. 3 at Gilroy
and told Ahlman, the man in charge there, that Kluge had sent him
there to sign up the employees. Ahlman stated that "that was per-
fectly all right," and that he knew that Kluge had spoken to Taggart,
his superior, about the matter. He then introduced McCauley to an
employee named Cullen who, though averse to joining Union No.
21084, finally signed an application and agreed to become shop stew-
ard when McCauley, in Ahlman's presence, stated that the Growers
Association wanted all its employees to be members. Cullen signed
up all the employees at the plant except three, who at first refused to
join but did so later when McCauley, at Ahlman's suggestion, in-
formed them Ahlman had sent him to get their applications.
Late in August or in September, on Taggart's instructions, Ben
Uhman, superintendent of Plant No. 9 at Hollister, introduced an
employee named Blacklock to McCauley, who asked Blacklock to act
as organizer in the plant. Blacklock was at first reluctant even to
meet McCauley, saying ". . . I don't want to get mixed up in any
union . . . " However, he undertook the assignment when
McCauley, in Uhman's presence, told him that Kluge had "inferred"
that Blacklock would be the man for McCauley. to see at Plant No. 9,
and said that Kluge approved of the employees joining Union No.
2 Subsequently Sanders signed up employees under him on behalf of Local 1-6. See footnote 18: supra.
1312 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
.21084 since "it would keep the C. 1. O. out." McCauley stated to
several employees, also in Uhman's presence, that they had to join
Union No. 21084 if they wanted to work in the dried fruit industry in
that area . He got applications from Blacklock and two or three other
employees; the rest were signed up by Blacklock. - Taggart made
inquiry about Blacklock's progress and, when informed that the fe-
male employees were not signing, said to Blacklock, "We got to have
those women signed."
The solicitation of members at Plants Nos . 2, 3, and 9, referred to
above, took place during working hours.
In the late summer or early fall of 1938 one Miladin refused to pay
his union dues. Baker obtained authority from some one in the main
office of the Growers Association to have Miladin removed from his
job, and he asked Superintendent Parks to do so. Parks told him
"to go ahead and do it" if he had the right to , and Baker ordered.
Miladin off the job. Miladin then paid his dues.
Richmond-Chase. On the clay of Reed's meeting with the Field
Practice Group Myers, plant superintendent at Richmond-Chase
Plant No. 2, called John Rampone, an assistant foreman to , his office
to tell him that Reed wanted to see him, and asked Rampone to get
in touch with Reed. In compliance with Myers' request, Rampone
went to Reed's office to receive instructions as to organizing the em-
ployees. After receiving his instructions from Reed he reported to
Superintendent Myers and received • Myers' consent to sign up the
employees. At Rampone's request the forewoman of the plant as-
signed Pauline Carper to assist Rampone and the two proceeded,
during working hours, to solicit members in the plant. Within 4
days Rampone signed up about 125 men.
At their August 24 conference Richmond invited McCauley and
Baker to communicate with one Pete, the superintendent of Rich-
mond-Chase Plant No. 1, at Edenvale, who would put them in touch
with the crew there. He also invited them to organize Plant No. 5 at
Gilroy when it was opened. McCauley visited Plant No. 1 within the
next 2 days and was presented to the employees by the superintend-
ent, who announced that all the Richmond-Chase employees in the
San Jose plant had joined Union No. 21084 and that. it was "perfectly
agreeable to Mr. Richmond." In the superintendent's presence all the
men signed applications . All this occurred during working hours.
Richmond-Chase Plant No. 5, which commenced operations in the
middle of September , was in the charge of Rampone , who had organ-
ized Richmond-Chase Plant No. 2. Rampone advised the employees
at Plant No. 5 that McCauley would come there to take their applica-
tions, that all the employees at Plants Nos. 1 and 2 had joined Union
No. 21084, and that Plant No. 5 should " follow along ." WheiiMc-
Cauley arrived , Rampone accompanied him through the plant and
ABINANTE & NOLA PACKING Co. 1313
introduced him to the employees, all of whom promptly signed appli-
cations. Rampone collected their dues on the first pay day following
and turned the money over to McCauley. The record does not dis-
close any organizational activity at Richmond-Chase Plant No. 9, a
very small plant located at Mountain View.
Superintendent Myers in the winter of 1937 and in about May or
June 1938 used his good offices to persuade employees to pay their
dues, although he expressly informed the union representatives that
he could take no "official action." Myers also permitted McCauley
to electioneer in the plant during working hours.
Abinante. In early November 1937 a number of employees of Abi-
nante at Cupertino joined Union No. 21084 on solicitation by Earle
Baker and subsequently others joined on solicitation by Walter Baum.
The record, however, does not show that this respondent rendered any
direct. assistance to Union No. 21084 in this connection. On the con-
trary no employee of Abinante was shown in the record to have acted
as plant organizer or steward, and although this respondent, begin-
ning September 2, 1937, participated with the other packers in collec-
tive bargaining negotiations with Union No. 21084, it refused to sign
the agreement reached until compelled to by picketing.
Dick. Richmond instructed McCauley and Baker to speak to
James Lively, superintendent of the Dick plant, located in San Jose,
with respect to the organization of the employees of this respondent.
Thereafter, starting about August 26, 1937, a number of the employees
joined Union No. 21084, several being signed up by one Roy McCay,
who was generally in charge of the entire plant and, next to the super-
intendent, was the "highest ranking officer." 27 Aside from the fore-
going, the record does not show that Dick gave Union No. 21084 any
direct assistance in organizing its employees.
Hamlin. When Baker visited the Hamlin plant in San Jose to
organize the employees there," Homer Hamlin, the owner, referred
Baker to his brother, Howard Hamlin, the plant superintendent.
Baker asked Howard Hamlin to assign a man to organize the plant.
The first man Howard Hamlin suggested refused the task, but they
found an employee, one Vialetus Ely, who accepted it. Baker himself
signed up one employee in Howard Hamlin's presence.
Mayfair. In about September 1937 McCauley called at the plant
in San Jose of Martino Packing Company, which later became known
as Mayfair Packing Company,29 and spoke to Joesph Perrucci, one
27 Subsequently McCay signed up employees under him on behalf of Local 1-6.
25 At this time Hamlin operated only one plant.
29 George Martino, who was one of the partners at that time, was not a member of Mayfair at the time of
the bearing . However , the data on commerce prepared by the respondent and submitted in evidence by
the Board show that Mayfair was " formed . . as the Martino Packing Company" and that its name had
been changed on April 1, 1939, to Mayfair Packing Company . The respondents have not raised any ques-
tion as to the responsibility of Mayfair for acts committed when the firm name was Martino Packing Com-
pany.
1314 DECISIONS OI' NATIONAL LABOR RELATIONS BOARD
of the partners, with reference to the organization of the employees.
Perrucci introduced McCauley to Frank Ruscigino, who agreed to
sign up the employees and act as steward. Ruscigino, who -had ap-
proximately ten employees under his supervision, did sign up a number
of the employees. One or 2 months later McCauley informed Per-
rucci that some employees were not paying their dues. Perrucci as-
sured McCauley that in the future Ruscigino "would wield the big
stick and see that they paid their dues," and he said to Ruscigino,
"You big stiff; you know how to collect these dues; now go to it."
In January 1939 this respondent instructed all its employees, a number
of whom were delinquent in their union dues payments, "to pay up
their dues if they expected to work," and on another occasion Per-
rucci ordered one Karvonnes to pay her dues on pain of being laid
off 30
J. S. Roberts. In September 1937 Roberts instructed Blaven, his
plant foreman, to permit McCauley to speak with the employees with
reference to organizing them. Blaven introduced McCauley to the
employees and told them that McCauley had come, with Roberts'
consent, to get them to join Union No. 21084. A number of the
employees were signed up by Melvin Lavin whom McCauley, at
Blaven's suggestion, appointed as plant steward and organizer.
Warren. Richmond suggested to McCauley and Baker that they
communicate with Hardtke, superintendent of Warren, with reference
to the organization of that respondent's employees. For a time,
however, neither appeared at the plant, which was located in San Jose,
and Hardtke inquired of Superintendent Morrella of -Guggenhime,
McCauley's former employer, where McCauley was and why he had
not come over to organize the Warren Plant. McCauley was in-
formed of the inquiry and in the early part of September he visited
the plant. At a lunch hour meeting which was arranged by Hardtke
and which eventually lasted until 15 minutes or half an hour past the
end of the employees' usual lunch time, Hardtke introduced McCauley
to the employees, stating:
Fellows, here is the organizer for the Dried Fruit Workers Union,
and I asked him to come over here today and talk to you people
about joining this union. The rest of these plants are all organ-
ized so Mr. McCauley is over here to sign you folks up in the
union.
After the meeting Superintendent Hardtke suggested to McCauley
that Vernon Smiley be plant steward and organizer and, promising
McCauley to lend Smiley "every possible assistance," lie expressed
confidence that all the employees would join Union No. 21084.
'0 Karvonnes ' removal from Mayfair's pay roll was requested by Union No . 21084 on January 14, 1939,
but it does not appear whether or not the said request was the occasion of Perrucci 's order.
ABINANTE & NOLA PACKING CO. 1315
McCauley and Smiley got a number of applications that day and
Smiley got others subsequently. Between McCauley's visits to the
plant, Hardtke kept the moneys and applications obtained by Smiley
in the respondent ' s safe.
Winchester. In about August 1937 Baker visited the Winchester
plant in San Jose and asked Mitchell, the superintendent, to assign a
worker to take care of signing up the employees. The two men
agreed upon one Peter DeBello for the job and Mitchell summoned,
him. from his work and instructed him to cooperate with Baker.
DeBello accepted the assignment and signed up a number of employees.
The respondent permitted him to keep applications and union funds
locked up in its filing cabinet pending the periodic visits of Baker and
McCauley. On several occasions, moreover, Superintendent Mitchell
himself collected dues and dues books from employees and turned
them over directly to Baker. The record does not disclose any
organizational activity at the Campbell plant of this respondent.
The evidence shows that the organization of Union No. 21084 was
the fulfillment and result of a common and mutual plan and course
of action conceived at meetings of the Field Practice Group, of which
all the respondents were members, and entered into by all of them
except Abinante.3i Counsel for the interveners state that the Federa-
tion approached officials of the respondents to secure their cooperation
in organizing the employees, but if this statement is intended to apply
to happenings prior . to the organization of Union No . 21084, it is
unsupported by evidence. On the contrary, it is clear that Union.
No. 21084 was organized and formed at the instigation and suggestion
of the respondents and each of them, with the exception of Abin.ante.
The only evidence on the subject in the record is that the respondents,
dissatisfied with the kind of organization being set up by Bocca at the
Rosenberg plant, approached Vandeleur and reached an understanding
with him pursuant to which Vandeleur sent Reed to take charge of
organizing the respondents' employees. Prior to that time no A. F. of L.
affiliate had taken a single step to organize any of the respondents'
employees since the abortive campaign of 1934. Moreover , having
induced Vandeleur to send them an organizer, the respondents partici-
pated in organizing Union No. 21084 by cooperating in the laying of
its plans of campaign , by helping to establish it as a labor organization
and by helping to provide the original impetus necessary to give the
organization a foothold among their employees. The uncontradicted
evidence shows that the respondents California Packing, the Growers
Association , Guggenhime , Libby, Richmond-Chase, and Rosenberg
selected the charter members and original organizing committee of
Union No. 21084, and that all the respondents, with the exception of
3' The exclusion of Abinante from the scope of this finding will be discussed below.
1316 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Abinante and Dick, through some of the highest officials in their
various plants and central offices , aided in selecting the plant organ-
izers, and requested or directed such organizers to help solicit members
in the plants. By the foregoing acts the respondents and each of
them, except Abinante and, with respect to the plant organizers,
Dick, interfered with, influenced and assisted the formation, organiza-
tion and administration of Union No. 21084. Moreover, by thereby
manifesting to their employees their desire that the employees become
members of Union No. 21084, the respondents and each of them,
except Abinante, urged and persuaded their employees to join and
assist that organization.
The record also shows, as hereinabove set forth, and we find, that
after the establishment of Union No. 21084 the individual respondents,
except Abinante and Dick, by various means urged and persuaded
their employees to join and assist Union No. 21084, contributed
financial and/or other support to it, and in other ways assisted, inter-
fered with, and influenced its organization and administration, and
that the respondent Libby urged and influenced its employees to
refrain from becoming or remaining members of a labor organization
of their own free choosing.
The respondents Abinante and Dick were not shown in the record
to have contributed support to Union No. 2].084 directly or to have
engaged in any other act of direct assistance to or interference with it.
They were both members of the Field Practice Group, however, and
therefore would be presumed to have authorized all acts of that Group
with respect to their labor relatioins, including the instigation and
suggestion of Union No. 21084, and in all other respects to have entered
into the common and mutual plan and course of action agreed to by
the members of the Field Practice Group. In the case of Abinante
that presumption is effectively rebutted by the fact that none of its
employees acted as plant organizers and that, of all the respondents,
it alone refused to sign an agreement with Union No. 21084 until
compelled to do so by picketing. For this reason we excluded
Abinante from the scope of our finding above that the various respond-
ents entered into the plan and course of action referred to. We do
not so exclude Dick because the record contains no evidence which
rebuts the said presumption with respect to this respondent, but tends
to show, if anything, the contrary, since the supervisory employee
next in rank to the superintendent participated in organizational
activities in the Dick plant.
The respondents and the interveners contend that the respondents'
conduct hereinabove described did not constitute unfair labor prac-
tices but rather represented lawful cooperation with Union No. 21084,
especially since neither the C. I. 0. nor any other labor organization
ABINANTE & NOLA PACKING CO. 1317
was then in the field. We are not persuaded by this contention. It
is immaterial that no other labor organization was then seeking to
organize the respondents' employees, since the uncontradicted evi-
dence shows that the respondents' action in establishing and assisting
Union No. 21084 was motivated largely by the possibility of an
attempt by a C. I. O. union in the future to organize the employees in
the industry and by their desire to forestall such an attempt. More-
over, irrespective of such motivation, it is plain, and we find, that the
acts of the respondents here under consideration were coercive in
character, and that the respondents thereby were applying their
economic power to compel their employees to join and assist the labor
organization selected by the respondents.
We find that by the acts respectively ascribed to them hereinabove
the respondents and each of them, with the exception of Abinante,
interfered with, restrained, and coerced their respective employees in
the exercise of the rights guaranteed in Section 7 of the Act.
C. The alleged refusal to bargain collectively
(1) Bargaining history prior to April 20, 1939
On September 2, 1937, Union No. 21084 and the packers met in
their first collective bargaining conference, participating in which
were the Executive Board of said union and officials or owners of each
of the respondents except Abinante, Hamlin, J. S. Roberts, and War-
ren. Union No. 21084 demanded a wage increase and a closed-shop
contract. The final agreement, reached after four "rather strenuous"
conferences of several hours each,32 embodied a compromise as to the
wage rates 33 but omitted any provision for a closed shop. The agree-
ment also provided for arbitration of grievances arising out of viola-
tions thereof. A draft of the final agreement was prepared and was
approved by a majority of the members of Union No.. 21084, voting
by secret ballot, and on or about September 20, 1937, individual con-
tracts with Union No. 21084, all substantially identical, were executed
by all the respondents except Abinante, which signed one in Feb-
ruary 1938.
In late April or early May 1938, at the request of Union No. 21084
and after considerable preparation by said union, Union No. 21084
and the packers started negotiations relative to a new agreement. The
negotiations eventually consumed some 100 hours and, pending their
completion, the parties agreed to two extensions, totaling 30 days, of
32 The conferences were held on September 2, 8, 13, and 15 or 10, 1937.
33 The agreement was for a minimum hourly rate of 42Y2 cents for women and 52 4 cents for men. The
corresponding rates demanded by Union No. 21084 were 45 cents and 55 cents, and those which Vandeleur,
unsuccessfully , had urged that Union No. 21084 demand were 50 cents and 65 cents. The agreement also
provided for an increase of 2.4 cents per hour for all employees whose wages were not increased by the said
minima.
323429-42-84
1318 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the 1937 agreement. The packers, represented by substantially the
same individuals as in 1937,34 refused the request of Union No. 21084
and of A. F. of L. dried fruit unions from Fresno and Alameda Counties
that negotiations be carried on jointly for the three areas, and Vande-
leur, in spite of opposition by the officials of the unions present,
immediately withdrew the unions' request. The packers again refused
the demand of Union No. 21084 for a closed-shop agreement, but each
agreed to grant preference in the hiring of new employees to unem-
ployed members of Union No. 21084 who were former employees of
such packer.35 Wage rates remained the same,36 but the employees
obtained more favorable conditions as to hours of work.37 On about
June 14, 1938, the 13 respondents executed substantially identical
individual contracts with Union No. 21084-embodying the terms
agreed upon.38
On about March 15, 1939, negotiations for a third agreement
were commenced, again at the request of Union No. 21084, which,
prior to the commencement of the. negotiations, submitted to the
respondents a proposed new agreement embodying substantially
increased wage rates and a more elaborate seniority system. During
these negotiations the respondents proposed that Union No. 21084
agree to a waiver of certain provisions of the Fair Labor Standards
Act of 1938,39 a proposal which Union No. 21084 was at first inclined
to accept 40 but eventually rejected. The 1939 negotiations were
interrupted by events hereinafter described,41 and contractual rela-
tions between the respondents and Union No. 21084 terminated
on April 15, 1939.
(2) The events occurring on April 20, 1939, and thereafter
In April 1939 a group of members of Union No. 21084 decided
to affiliate with the C. I. O. A regular monthly meeting of Union No.
21084 was scheduled for April 20, 1939, the usual notice of which was
given on April 17. On the morning of April 20 Baker, the secretary-
treasurer, had Union No. 21084's records and furniture removed to
3"The only change noted in the record was that Dwight Grady, of Rosenberg, took the place of Walter
Rothschild of the same firm. An attorney representing Union No. 21084 took part in some of the conferences.
36 "New employees" were, in effect, defined in each agreement as all employees other than persons who
were employed by the particular packer at the time of the signing of the agreement. The parties also
agreed "that it is advisable that all employees covered by this agreement be members of the Union."
36 McCauley, a witness for the Board, claimed he was not convinced that the respondents were unable
to pay the increased rates demanded by Union No. 21084, but admitted that the industry was in a "rather
sick" condition.
37 The 1937 agreement provided for a 10-hour work day for male workers during 7 months of the year and
a shorter work day during the remainder of the year, whereas the 1938 agreement provided for a 10-hour
work day only during 90 to 132 days of the year, depending upon various circumstances.
38 The 1938 agreement was also approved by the members of Union No. 21084 voting by secret ballot.
39 62 Stat. 1060.
+4 Since the employees were paid by the hour, a reduction in their normal work week during a substantial
part of the year from 60 to 48 hours would have represented an important reduction in individual earnings.
41 See subdivision (2), infra.
ABINANTE & NOLA PACKING CO. 1319
new quarters. At the meeting that night, after considerable dis-
cussion, a motion was passed by a vote of 321 to 128 providing that
Union No. 21084 "dissolve this organization and reconvene under
the banner of the Congress of Industrial Organizations." 42 In view
of the provisions of the constitution of the A. F. of L., the passing of
the motion had no effect upon the status of Union No. 21084 as a
labor Organization.43 The president and several other representatives
of Local 1-6, who had been waiting outside the hall, came in and ad-
dressed the meeting and solicited the membership of those present.
Between 200 and 300 persons signed membership application cards
that night, and Local 1-6 continued its organizational campaign from
then up to the last day of the hearing in this proceeding. Many minor
supervisory employees joined Local 1-6, and a number of the persons
soliciting signatures on its behalf did so among employees in plants
where they were employed in supervisory capacities.44 At one plant-
Guggenhime-an employee named Rizzo solicited signatures at the
plant during working hours.45
On April 25, 1939, at a meeting attended by about 40 persons
and presided over by Charles Daly, president of the Federation,
Union No. 21084 was reorganized, and new officers were elected, none
of whom had been officers of Union No. 21084 previously.46 The
new officers obtained an order in a State court for the possession of
the books and equipment of their union, pursuant to which, early in
May, the former officers returned the articles in question. The new
officers also visited additional members of Union No. 21084 and sought
to induce them to remain loyal to the organization. In the middle of
May they started an organizational campaign among the respondents'
employees, both members and non-members of Union No. 21084.
With a few exceptions the campaign was conducted outside working
hours.
A considerable number of the persons who signed designations of
Union No. 21084 after April 20, 1939, were among those who had
previously signed designations of Local 1-6, and subsequently many
again signed designations of the latter organization. However, on
June 15, June 30, and August 4, 1939,41 Local 1-6 held designations
42 There were 13 blank ballots and 3 members present did not vote. On April 20 Union No. 21084 had
about 650 members , active and in good standing and hence entitled to attend the meeting , approximately
1800 members being on withdrawal cards because of unemployment due to the slowness of the season. How-
ever, the attendance at the April 20 meeting was well above the average , for during the peak season, when
more members were in an active status, the long work day discouraged attendance.
43 The A. F . of L. constitution provided that no Federal Labor Union , such as Union No . 21084 was, should
disband "so long as seven members . . . desire to retain the charter . ' (Art. XIII, Sec. 17.)
44 See footnore 18, supra.
+ 3 This was without the knowledge of the plant superintendent and contrary to his orders.
+3 The officers elected were: President , James J . Roonan ; Vice-President , Walter Knoth ; Secretary-
Treasurer , Frank Barale ; Recording Secretary , Morgan Florey.
47 June 15 and June 30 were two of the dates on which the respondents refused Local 1-6's request for col-
lective bargaining . August 4 was the last day on which testimony was taken at the hearing.
1320 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
signed by a majority of the employees in the unit hereinafter found
appropriate, 48 even omitting all those who had also signed designa-
tions of Union No. 21084 since April 20.
On April 21 or 22, 1939, and again on April 27 Local 1-6 wrote to
each of the respondents informing it that Union No. 21084 had voted
to "change its name and affiliation," requesting that the pending
collective bargaining negotiations be continued with Local 1-6, and
asking each respondent to fix the time and place for a conference.
All the respondents except Abinante 49 referred the letters to W. W.
Jacka, their joint representative, and informed Local 1-6 of such action
by letters dated between May 3 and 8.50 On May 4, 1939, Meyer
Lewis, a representative of the A: F. of L., wrote to each respondent
informing it that Union No. 21084, representing such respondent's
employees, was prepared to resume negotiations for a collective con-
tract and requesting it to fix a time and place for a conference. The
respondents replied the next day through Jacka that they were ready
at any time to resume negotiations. On May 6 Local 1-6 sent Jacka
a telegram informing him, as the representative of "the several dried
fruit packers in Santa Clara and San Benito Counties," that Local 1-6
and not Union No. 21084 represented a majority of their employees,
and demanding a meeting with the packers to negotiate a contract.
On May 8 Local 1-6 filed a separate charge against each respondent,
alleging, among other things, that such respondent had refused to
bargain collectively with Local 1-6 as the exclusive representative
of the employees at each of its plants, although Local 1-6 had been
duly designated as bargaining representative by a majority of such
employees. On May 11, 1939, Local 1-6 filed a separate petition
with the Regional Director with respect to each respondent assert-
ing that a question had arisen concerning the representation of such
respondent's employees and requesting an investigation and certifica-
tion of representatives.51
On May 12, 1939, a committee representing Local 1-6 called on
Jacka at his office and requested an immediate conference for collec-
tive bargaining. They stated that they had with them about 1600
"pledge" cards to prove their claim to represent a majority of the
workers in the dried. fruit and nut packing industry in the area and-
18 See Section VIII, infra.
49 The letters to Abinante were returned to Local 1-6 undelivered.
60 Five of the respondents had also replied on April 28 or 29 in substantially identical letters, stating,
respectively, that they would negotiate with representatives designated by their employees upon proof
of such designation.
51 The record in this proceeding shows the filing of the original charge and the original petition only with
respect to the respondent Abinante. However, the Board's files show that on the said respective dates
similar charges and petitions were filed with respect to all the respondents. The original charges and
petitions, except these with respect to Abinante, were withdrawn on June 20 and 26, 1939, respectively.
ABINANTE & NOLA PACKING CO. 1321
offered the cards to Jacka for his examination.52 As an alternative
method of proof they also suggested that the cards and the respond-
ents' pay rolls be submitted to the Board's Regional Office, which
could then determine the question concerning representation. Jacka
replied that the problem was one for the Board and Local 1-6 to
solve, and he stated that a representative of the Regional Office had
informed him that the Board could hold an election-to establish the
collective bargaining agency of the employees. Pointing out that the
respondents were then gathering certain information requested by the
Regional Office-apparently in connection with the proceedings al-
ready instituted, referred to above he said that if the Board desired
the pay rolls, a request for them should come from the Board. He
admitted that the packers were negotiating at the time with Union
No. 21084 although it had produced no evidence of designation by
a majority of the employees; but he stated that the packers had
dealt with that organization in the past and would continue to do so
until "some constituted legal authority" instructed them not to or
informed them that Union No. 21084 did not represent the employees.
On June 12 Local 1-6 wrote to Jacka that it was prepared to submit
documentary proof that it represented a majority of the employees
in the industry-wide unit 53 and demanded a collective bargaining
conference.54 On June 15 Jacka was again visited at his office by a
committee representing Local 1-6. He read the committee a letter
informing Local 1-6, in reply to its letter of June 1.2, that the respond-
ents were engaged in collective bargaining negotiations with Union
No. 21084 and therefore refused to bargain with Local 1-6.55 The
committee then asked Jacka if, in view of the fact that Local 1-6 was
prepared to prove that 1900 employees in the industry had desig-
nated it as their collective bargaining representative, the packers
would continue to negotiate with Union No. 21084. Jacka's reply
was that the packers would continue the negotiations and "perhaps
go so far as to sign a contract with the A. F. of L., unless they were
informed by the National Labor Relations Board to stop such negoti-
ations." He called attention to the petitions for certification filed
with the Regional Office by Local 1-6, and asserted that a repre-
sentative of the Board had said that without a doubt the whole matter
would have to be settled by an election because of the duplication of
signatures on the designations of the two factions. The committee
52 The representatives of Local 1-6 stated that of course" they could not leave the cards with Jacka.
The respondents , however , made no claim either at the time of the interview or at any other time that
they were not offered sufficient opportunity to inspect the cards.
53 Counsel for the Board and for the respondents had previously entered into a stipulation referred to in
Section VIII , infra , which provided that the appropriate unit in these proceedings was industry-wide. As
described in the letter the unit included Santa Clara Valley Dried Fruit Products, Inc., a company which
closed down prior to the hearing.
as Local 1-6 also sent similar letters that day to the respondents . All the respondents , with the possible
exception of Roberts and Libby, replied that they had referred the matter to Jacka.
' The letter also stated that Jacka did not represent Santa Clara Valley Dried Fruit Products , Inc. See
footnote 53, supra.
1322 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
admitted that there were duplications and that some persons had
attended meetings of both organizations, but they claimed that those
persons "were now definitely C. I. 0." and that the question could be
settled by an examination of the pledge cards. Jacka replied that the
whole matter was in the hands of the Board, which would decide the
procedure to be followed.
The respondents admit that Local 1-6 demanded that the respond-
ent bargain with it collectively and that the respondents refused to
do so. Moreover counsel for the respondent and for the Board stipu-
lated that for purposes of these proceedings Local 1-6's demands for
collective bargaining and the respondents' refusals may be deemed to
have been made on June 30, 1939.56
(3) Conclusions with respect to the refusal to bargain
The respondents contend that they did not refuse to bargain collec-
tively within the meaning of the Act, that the question concerning
representation was in doubt because of the conflicting claims of the
two labor organizations that each was the exclusive representative of
the employees, and that the course taken by the respondents in their
dilemma was the only safe one.
The validity of this contention is dependent in part upon whether
or not Union No. 21084's membership at the time in question repre-
sented the employees' choice unaffected by the respondents' unfair
labor practices which we have found. We are of the opinion that
Union No. 21084's membership immediately prior and subsequent to
the shift from Union No. 21084 to Local 1-6 between April 20 and
June 1939 was not in any material degree attributable to the continu-
ing effects of the respondents' unfair labor practices. On the contrary,
the mass shift does much to negative the inference that the employees
were not freely exercising their right of choice of bargaining represent-
atives during the said period. We find that the membership of
Union No. 21084 immediately prior to and after April 20, 1939, must
be considered a voluntary one in determining the validity of the
respondents' contention.
The respondents were confronted with the fact that a substantial
number of employees were shifting their allegiance back and forth
between the two labor organizations. We think that in the circum-
stances of this case they did not act unreasonably in rejecting the
suggestion that the question concerning representation be determined
on the basis of the designations alone and-in insisting that they would
5e They stipulated , further, that if Local 1-6 had at any other time between May 12 and June 30, 1939,
made such demands on the respondents , the latter , and each of them, would have refused to bargain with
Local 1-6 as the exclusive representative of the employees in the appropriate unit. .
ABINANTE & NOLA PACKING CO. 1323
not bargain with Local 1-6 unless and until the Board certified that
organization . A similar observation applies to the respondents' con-
tinuance of negotiations with Union No. 21084, the organization with
which it had bargained as the exclusive representative of their em-
ployees for over 1% years , and which on April ' 20 had as members
approximately 98 per cent of the employees in the_ industry , number-
ing over 2500.11
In view of the foregoing , we shall dismiss the allegations of the
complaint that the respondents refused to bargain.collectively within
the meaning of the Act.
D. The alleged discrimination
James F. McCauley . In August 1938 McCauley resigned as presi
dent of Union No. 21084. He applied to Superintendent Morrella of
Guggenhime for his old jQb to which , under the contract then in
effect with Union No. 21084 , he was entitled. In accordance with the
respondent 's previous instructions, Morrella sent McCauley to see
Blaurock, the district manager of Guggenhime , to whom, on about
August 28 , McCauley accordingly presented his application.
McCauley testified that Blaurock , whom he knew `quite well,"
told him that he could not be reemployed and. said:
Well, because of the things that you have said and done while
an officer of the union , we do not feel that we can employ you in
this plant. Firstly, we feel you would be very unhappy here;
conditions would not be as they used to be when we had a very
congenial relationship , and Mr. Lacher 58 does not feel you should
be employed in this plant because of disparaging remarks that
you made pertaining to Mr. Lacher personally, and actions that
you took while a member of the union as an officer. . . .
Of course , if you want to force this issue the contract provides
for it; if you want to make an issue of it, why, that is your right.
Blaurock , on the other hand, testified that he told McCauley:
All right, ' Mac. You can have a job, but I am rather sur-
prised that you would want to come to work for this Company
after what you have said and done . . . You have made cer-
tain disparaging remarks against the officers of the Company,
against our superintendent , Mr. Morrella and myself. Further-
more, you are very much in disfavor with the employees of this
57 As we have heretofore noted, such negotiations as were held did not eventuate in any new contract.
Further, on May 12 and June 15 Kacka made it plain to Local 1-6 that the respondents would discontinue
recognition of Union No. 21084, the last exclusive representative with which the respondents had been in
contractual relations , when and if the Board certified another representative pursuant to the petitions of
Local 1-6 on file.
58 Lacher was vice president of Guggenhime.
1324 DECISIONS OF NATIONAL. LABOR RELATIONS BOARD
Company, and under those circumstances I don't think you
would be very happy working for this Company again.
In any event, McCauley told Blaurock he would seek work else-
where, and within a few days he obtained a supposedly permanent
position of the same nature and paying the same salary as his previous
position with Guggenhime. However, his new employer 53 soon went
out of business and in March or early April 1939 McCauley again
visited the Guggenhime plant and spoke to Lacher, whom he had-
known for many years.
McCauley testified that he asked Lacher to explain to him "thor.-
oughly" why he could not be employed at the plant, and that Lacher
replied that it was because of the above-mentioned "disparaging
remarks" and of actions which McCauley had taken while an officer
of Union No. 21084. McCauley further testified that Lacher promised
to discuss with Blaurock the possibility of reemploying him and to
notify him if it was decided to do so, but that he heard nothing
further. Lacher's testimony as to the conversation was that
McCauley said, "I presume if I want to come back to work here it
will be all right," and that Lacher replied:
Certainly Mac. There is no reason why you shouldn't, ex-
cept . . . that I don't think you would want to come back
here after making certain remarks that I understood you have
made . . . I understand you called me a.son-of-a-bitch in an
open meeting.
According to Lacher, McCauley then "flushed very red" and said:
". Well . . . I am really not interested in the job exactly . . ."
McCauley, though denying that he had made the remark Lacher
accused him of making, admitted having used insulting language 80
at a union meeting in referring to Lather's failure to observe certain
wage provisions of the union agreement. Counsel for the Board
contended, however, that the respondent refused to reemploy him
because, as president of Union No. 21084, he had insisted upon
acting in the interests of the employees and had taken various steps
to compel Guggenhime to observe the union agreement, including
the provisions as to wage rates above mentioned. The Trial Ex-
aminer, finding that McCauley had not made the remark attributed
to him by Lacher, and accepting McCauley's version and explana-
tion of the events as fitting in with the surrounding facts, concluded
that Guggenhime refused to reinstate McCauley because of his efforts
to free Union No. 21084 from the interference, influence, and control
of the respondents. The question of what McCauley's remark was
59 Santa Clara Valley Dried Fruit Products, Inc.
6O "a cheap kike trick."
ABINANTE & NOLA PACKING CO. , 1325
is relatively unimportant, since it is clear that during the course of
a union meeting he did use language personally insulting to Lacher.
McCauley's own testimony is that Blaurock pointed out that the
contract provided for his reemployment and he had the right, if
lie so chose, "to make an issue of it"-that is, that he could have.
his job if he insisted upon the carrying out of the contract. We
think that McCauley became embarrassed on realizing that the
respondent's officers, whom be had known many years, harbored ill
feeling because of what he had said, and that he therefore preferred
to find employment elsewhere. McCauley's second visit to the plant
would have had no point if he had been refused employment the
first time. According to his own version of the conversation with
Blaurock, Blaurock's statement of his and the other officers' feelings
was amply explicit. We think that in such a situation McCauley
would not have returned to the plant, whether for a more thorough
explanation, as lie testified, or even to renew his request for em-
ployment, were it not for the fact that Blaurock had told him that
if he insisted, he could have his job.
We find that the respondent did not refuse to reinstate McCauley,
and shall therefore dismiss the complaint as to him.
Raymond Gullo. Gullo, a seasonal employee of the respondent
Hamlin, was first employed by that respondent in October 1936 and
last worked for it during the week ending July 9, 1938.61 He was
employed primarily as a nailer, but when nailing was not being done,
he did general work, including work on the grader. He joined
Union No. 21084 in October 1937.
In about the middle of June 1938 work at Hamlin became slack
and, with the permission of Superintendent Howard Hamlin, Gullo
left San Jose for a short period to work elsewhere. The superintendent
told him to return later, since an order was expected; and before the
order had come in, Gullo did report for work. Although the evidence
is conflicting, the record shows that Gullo received some employment
after his return. Within a short time, however, Baker, the secretary-
treasurer of Union No. 21084, ordered the shop steward at Hamlin
to have Gullo taken off his job because of non-payment of dues, and
Gullo was replaced by a new employee, one Sidney Longhead, who
was not a union member.62 Gullo protested to Superintendent
Hamlin when he saw Longhead doing work on the grader ordinarily
assigned to Gullo. The superintendent said nothing as to why Gullo
had been replaced, and promised to give him some nailing to do later.
He refused, however, to put Gullo to work on the grader. Gullo
then complained at the union office, where Baker told him that he
Cl Gullo's employment record showed that he worked for Hamlin 89 hours in October 1936 , 384 hours from
December 1936 through March 1937, 198 hours in October and November 1937, 17 hours in January 1938,
17 hours in March 1938, and 374;2 hours from April through July 9, 1938.
62 Longhead joined Union No. 21084 late in July 1938.
1326 . DECISIONS OF NATIONAL LABOR RELATIONS BOARD
was 3 months behind in his dues and that the union had therefore
ordered him taken off the job. Baker said: "We can't put you on a
job right now. I'll see what I can do for you." The agreement
in effect between the respondent and Union No. 21084 at the time
here in question provided that in rehiring employees the respondent
would, so far as possible and practical , give preference to those who
had worked for the respondent the previous year; that in hiring new
employees, defined as those not employed by the respondent at the
time of the signing of the agreement, the respondent would give
preference to unemployed members of Union No. 21084 who were
former employees of the respondent; and that in making lay-offs,
reductions in personnel, and promotions, the respondent would
maintain a general policy of recognizing length and seniority of
service, "with due consideration for ability, merit and competence
to do the work required."
When Gullo went to the union office, he also complained that the
respondent had failed to pay for overtime work as required by the
union agreement. McCauley, then president of Union No. 21084,
visited the plant the next morning, to adjust this complaint and in the
afternoon Gullo went there and collected the wages owing to him,
including .a separate check for overtime. Homer Hamlin, the owner,
said to him, when handing over the checks "Here is your overtime
check. I don't want no stool pigeons in my building . . . and
furthermore I don't like anybody to tell me how to run my plant and
what to do." Gullo answered, ". . . Mr. Hamlin, . . . if it is
going to cost my job, I am not going to take my check," to which
Hamlin replied, "It belongs to you. Take it." Gullo understood
that he had been discharged, but he continued to come to the plant
in the hope of obtaining employment. Howard Hamlin told Gullo
that he should have spoken to him, Howard, before complaining
to the union, but nevertheless he promised to get Gullo restored to
Homer Hamlin's good graces. After Gullo had waited around the
plant in vain for a few days , Homer Hamlin , early in July , caused him
to be ordered from the premises. Gullo left and did not thereafter
return. Be straightened out his dues account within about 2
weeks, and Baker and McCauley thereafter attempted to secure
his reinstatement, but they were unsuccessful.
Gullo and counsel for the Board contended that Gullo's complaint
about the overtime, and the action taken thereon by the Union,
constituted the "concerted activities" because of which the respondent
discharged Gullo and refused him reinstatement , as alleged in the
complaint. It is clear, however, that Gullo was replaced by Longhead
before making the complaint , and the union agreement contained no
ABINANTE & NOLA PACKING CO. 1327
requirement that Longhead be discharged to make room for Gullo.
The record discloses no violation of any provision of the agreement
with respect to the hiring and rehiring of employees. There is no
evidence that after Gullo's complaint to the union the respondent
hired or rehired any person who was not a member of Union No. 21084,
or who had not worked for the respondent during the previous year.
One Tony Cancilla, a hand nailer having less seniority than Gullo,
may have been recalled to work,63 but he was a member of Union No.
21084, and, so far as the record shows, he may have worked for the
respondent the previous year.64 Gullo expressly stated that he did
not consider himself discriminated against by Cancilla's employment.
We find that the record fails to sustain the allegations of the
complaint that Gullo was discharged and refused reinstatement
because of his concerted activities and shall therefore dismiss the com-
plaint as to him.65
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
We find that the activities of each of the respondents set forth in
Section III, B, above, occurring in connection with the operations
of such respondent described in Section 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 and
obstructing commerce and the free flow of commerce.
V. THE REMEDY
Since we have found that the respondents, with the exception of
Abinante, engaged in unfair labor practices by interfering with,
restraining, and coercing their respective employees in various ways
in the exercise of rights guaranteed in Section 7 of the Act, we shall
order them to cease and desist from such practices and, in order to
remove and avoid the consequences of the said unfair labor practices
and thus effectuate the purposes and policies of the Act, to take cer-
tain affirmative action, more particularly described below.
We found above, in considering the respondents' conduct with
respect to collective bargaining, that immediately prior to and after
April 20, 1939, the membership of Union No. 21084 was not attribut-
able in any material degree to the continuing effects of the respond-
ents' said unfair labor practices. However, in view of the fact that
an election between the competing labor organizations is hereinafter
63 Cancilla was working for the respondent after Gullo's employment had terminated, but Gullo was
unclear as to whether or not he was working prior to Gullo's complaint to Union No. 21084.
04 The union agreement contained no provision recognizing length or seniority of service as a factor to be
taken into consideration in the hiring or recalling of employees.
63 We express no opinion as to the propriety of the respondent 's action in discharging and refusing to re-
instate Gullo at the request of Union No . 21084 because of his delinquency in the payment of his dues.
1328 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
directed and of the fact that the respondents have never formally
disavowed their past interference with their employees' rights, we
deem it advisable to require the respondents to take the affirmative
action hereinafter provided. Accordingly, we shall order the respond-
ents, other than Abina.nte, (1) to withhold recognition of Union No.
21084 as the exclusive representative of their employees unless and
until Union No. 21084 is certified by the Board as such exclusive
representative or, after final action on Local 1-6's petition for inves-
tigation and certification of representatives, Union No. 21084 is duly
designated by a majority of the employees as their representatives;
(2) to withhold recognition of Union No. 21084 as the representative
of any of their emp? )yees unless similar recognition is granted to Local
1-6 or unless and until Union No. 21084 is entitled to recognition as
exclusive representative in accordance with the conditions outlined
in clause (1) of this sentence; and (3) to post appropriate notices to
their employees in the form hereinafter directed.
VI. THE QUESTION CONCERNING REPRESENTATION
As hereinabove found, on May 12, 1939, and on several occasions
thereafter Local 1-6 informed the respondents that it had been
designated by a majority of their employees as their representative
for collective bargaining, offered, the respondents signed designations
in support of its claim,- and demanded that the respondents bargain
with it as the employees' exclusive representative. The respondents,
because of the conflicting claim of Union No. 21084 and their previous
bargaining relations with that organization, and because it was known
that a substantial number of employees had since April 20, 1.939,
signed designations of both organizations, refused the demands of
Local 1-6 and stated, in effect, that they would not bargain with
Local 1-6 until it was certified by the Board as the exclusive bargain-
ing representative of the employees.
We find that a question has arisen concerning the representation of
employees of the respondents.
VII. THE EFFECT - OF THE QUESTION CONCERNING REPRESENTATION
UPON COMMERCE
We find as to each of the respondents in these proceedings that the
question concerning representation which has arisen, occurring in
connection with its operations described in Section I above, has a
close, intimate, and substantial relation to trade, traffic, and com-
merce among the several States, and tends to lead to labor disputes
burdening and obstructing commerce and the free flow of commerce.
ABINANTE & NOLA PACKING CO.
VIII. THE APPROPRIATE UNIT
1329
Local 1-6 and Union No. 21084 seek a unit consisting of all the
employees of all the respondents, employed in the respondents' dried-
fruit packing plants in Santa Clara and San Benito Counties, except
officers, executives, clerical and other office employees, and all persons
having power of hire or discharge.t6 The respondents do not object
to the proposed unit. The parties and counsel for the Board stipulated,
and we find, that the respondents constitute substantially the entire
dried-fruit industry in Santa Clara and San Benito Counties; that all
the respondents had, as a matter of practice and agreement, acted in
concert and as a unit in establishing uniform wages, hours, and working
conditions for the said dried-fruit industry and in all matters pertain-
ing to labor conditions in their respective plants located in the said
region; that continuously since about August 1937 the respondents
had. for purposes of collective bargaining, dealt with all the employees
employed by all the respondents at the respondents'-dried-fruit plants
located in the said region, as a group or unit on an industry-wide basis,
and that they had so dealt with said employees through a "Negotiating
Committee" delegated with the necessary authority and power to
bargain collectively with said employees concerning wages, hours,
and working conditions; and that all the respondents desired to con-
tinue to negotiate and deal through said "Negotiating Committee"
with all such employees as a group or unit on-an industry-wide basis
for the purpose of collective bargaining.
The parties further stipulated that teamsters, truck drivers, and
engineers be excluded from the unit, and that the box makers at the
Rosenberg and Growers' Association plants be deemed for all purposes
employees of those two respondents, respectively, although they were
employed at the plants pursuant to arrangements with independent
contractors who selected them and paid them their wages. In accord-
ance with the stipulations, teamsters, truck drivers, and engineers will
be excluded from the unit, and all box makers, including the box
makers mentioned, will be deemed employees of the respondents in
whose plants they are engaged and will be included in the unit.
Local 1-6 and Union No. 21084 contended that all employees not
having the power of hire or discharge should be included in the unit.
The respondents made no contention as to this issue. All persons
having the power to hire or discharge employees shall be excluded
from the units'
66 In the amended petition the appropriate unit is described as consisting of all the production and main-
tenance employees employed by all the respondents at their plants located in San Benito and Santa Clara
Counties in the State of California , excluding all executives, and clerical and supervisory employees.
67 Matter of Southern Chemical Company and Textile Workers Organizing Committee , 3 N. L. R . B. 869. 879.
1330. DECISIONS OF NATIONAL LABOR RELATIONS BOARD
We find that all employees of all the respondents employed at.their
respective dried-fruit plants in Santa Clara and San Benito Counties,
in the State of California, including all box makers engaged in the' said
plants, but excluding officers, executives, clerical and other office
employees, engineers, truck drivers, teamsters, superintendents,
assistant superintendents, and all persons having authority to hire or
discharge employees, constitute a unit appropriate for the purposes of
collective bargaining with respect to rates of pay, wages, hours of
employment, and other conditions of employment, and that said unit
will insure to employees of the respondents the full benefit of their
right to self-organization and to collective bargaining and otherwise
effectuate the policies of the Act.
IX. THE DETERMINATION OF REPRESENTATIVES
The record establishes that a substantial number of the respondent's
employees have designated both Union No. 21084 and Local 1-6 as
their bargaining agent and that there are duplications among the
designations.68 Under these circumstances we find that the question
concerning representation which has arisen can best be resolved by an
election by secret ballot.89 Since, however, the respondents, with
the exception of Abinante, by engaging in various unfair labor prac-
tices interfered with the exercise by their employees of the rights
guaranteed them by the Act, we shall not now set the date for the
election. We shall hold the election upon receipt of information from
the Regional Director that the circumstances permit a free choice of
representatives unaffected by the respondents' unlawful acts.
The parties stipulated that those eligible to vote in any election
directed by the Board in these proceedings, should be "those em-
ployees . . . who have worked during the period January 1, 1938,
to and including June 30, 1939," at least 18 working days (8 hours
being deemed to be a working day) "whether for one or more of the
respondents herein or in one or more of their said plants,70 excepting
those who have subsequently to their said employment voluntarily
(as distinguished from either a lay-off or discharge) severed their con-
nection with the dried-fruit industry in the respondents' said plants
or have been discharged for lawful cause . . ." We shall give effect
89 See Section III, C, supra.
6 See Matter of The Cudahy Packing Company and United Packinghouse Workers of America, Local No. 61,
of the Packinghouse Workers Organizing Committee, Affiliated with the Congress of Industrial Organizations,
13 N. L. R. B. 526, 531; .Matter'of Armour & Company and United Packinghouse Workers, Local Industrial
Union No. 13 of Packinghouse Workers Organizing Committee, Affiliated with the C. 0. I., 13 N. L. R. B. 567.
572; Matter of Alpena Garment Company Inc., and International Ladies Garment Workers Union, 13 N. L.
R. B. 720, 725-6.
rn Counsel for the Board and the respondents stipulated, and we find, that the dried-fruit industry is a
highly seasonal industry in Santa Clara and San Benito Counties, and that the industry has definite peaks
of employment and activity. Counsel for Union No. 21084 was absent from the session at which this stipu-
lation was entered into.
ABINANTE & NOLA PACKING CO. 1331
to this stipulation except that, because of the lapse of time since it
was made, we shall, when fixing the time of the election, determine
another appropriate period during which the employees will be re-
quired to have worked 18 days in order to be eligible.
Upon the basis of the above findings of fact and upon the entire
record in the case, the Board makes the following:
CONCLUSIONS OF LAW
1. Warehousemen's Union, Local 1-6, International Longshore-
men's and Warehousemen's Union; Dried Fruit and Nut Packers
Union No. 21084 of Santa Clara County, California; and California
State Federation of Labor, are labor organizations, within the mean-
ing of Section 2 (5) of the Act.
2. By interfering with, restraining, and coercing its employees in
the exercise of the rights guaranteed in Section 7 of the Act, each
respondent, except Abinante, has engaged in and is engaging in unfair
labor practices within the meaning of Section 8 (1) of the Act.
3. The aforesaid unfair labor practices are unfair labor practices
affecting commerce, within the meaning of Section 2 (6) and (7) of
the Act.
4. The respondent Abinante has not engaged in unfair labor prac-
tices within the meaning of Section 8 (1) of the Act; and none of the
respondents have engaged in unfair labor practices within the meaning
of Section 8 (5) of the Act.
5. A question -affecting commerce has arisen concerning the rep-
resentation of employees of the respondents within the meaning of
Section 9 (c) of the Act.
6. All employees of all the respondents employed at the respondents'
respective dried-fruit plants in Santa Clara and San Benito Counties,
in the State of California, including all box makers engaged in the
said plants, but excluding officers, executives, clerical and other office
employees, engineers, truck drivers, teamsters, superintendents, as-
sistant superintendents, and all persons having authority to hire or
discharge employees, constitute a unit appropriate for the purposes
of collective bargaining, within the meaning of Section 9 (b) of the
Act.
ORDER
Upon the basis of the above findings of fact and conclusions of law,
and pursuant to Section 10 (c) of the National Labor Relations Act,
the National Labor Relations Board hereby orders that:
1. The respondents, California Packing Corporation; California
Prune and Apricot Growers Association; Guggenhime & Company ;
Hamlin and Company; Libby, McNeill & Libby; Joseph P. Perrucci
1332 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and F. L. DiNapoli, copartners doing business under the firm name
Mayfair Packing Company; Richmond-Chase Company; J. S.
Roberts; Rosenberg Bros. & Co.; C. D. Stevens, doing business under
the firm name Warren Dried Fruit Co.; and Winchester Dried Fruit
Company; and their respective officers, agents, successors, and assigns,
shall each cease and desist from contributing financial or other sup-
port to Dried Fruit and Nut Packers Union No. 21084 of Santa Clara
County, California, or any other labor organization of its employees.
2. The said respondents and the respondent C. L. Dick & Company,
and their respective officers, agents, successors, and assigns shall each
cease and desist from:
(a) Interfering with or assisting the formation, organization, or
administration of Union No. 21084 or any other labor organization
of its employees ;
(b) Urging or persuading its employees to join or assist Union No.
21084 or any other labor organization of its employees;
(c) In any other manner interfering with, restraining, or coercing
its employees in their 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
purpose of collective bargaining or other mutual aid or protection, as
guaranteed in Section 7 of the Act.
3. The respondents named in paragraphs (1) and (2) of this Order,
and their respective officers, agents, successors, and assigns, shall
each take the following affirmative action, which the Board finds will
effectuate the policies of the Act:
(a) Withhold recognition from Dried Fruit and Nut Packers
Union No. 21084 of Santa Clara County, California, and any other
labor organization, as the exclusive collective bargaining representa-
tive of any of its employees, unless and until such labor organization is
certified as such representative, or unless and until, after final action
by the Board upon the petition of Local 1-6 for investigation and
certification of representatives, such organization is duly designated
by a majority of the employees in an appropriate unit to be their
representative for purposes of collective bargaining;
(b) Withhold recognition from said Union No. 21084 as the repre-
sentative of any of its employees unless similar recognition is granted
to Local 1-6, or unless and until Union No. 21084 is entitled to recog-
nition as exclusive representative in accordance with the conditions
outlined in paragraph 3 (a), hereinabove, of this Order;
(c) Post immediately in conspicuous places at its plant or plants,
and maintain for a period of at least sixty (60) consecutive days from
the date of posting, notices to its employees, stating: (1) that such
respondent will not engage in the conduct from which it is ordered to
ABINANTE & NOLA PACKING CO. 1333
cease and desist in paragraphs 1 and/or 2 of this Order, and (2) that
such respondent will take the affirmative. action. set forth in para-
graphs 3 (a) and (b) of this Order;
(d) Notify the Regional Director for the Twentieth Region in
writing within fifteen (15) days from the date of this-Order what steps
such respondent has taken to comply therewith.
AND IT IS FURTHER ORDERED that the complaint, as amended, be,
and it hereby is, dismissed, in so far as it alleges (a) that the respond-
ents, by refusing to bargain collectively with Local 1-6, have engaged
in and are engaging in unfair labor practices within the meaning
of Section 8 (1) and (5) of the Act; (b) that the respondent Abinante,
in any respect, engaged in or is engaging in any unfair labor practices;
and (c) that. the respondent Guggenhime, by refusing or failing to
reinstate James F. McCauley to his regular position, and that the
respondent Hamlin, by discharging and thereafter refusing and failing
to reinstate Raymond Gullo, have respectively engaged in and are
respectively engaging in unfair labor practices within the meaning of
Section 8 (1) of thelAct.
DIRECTION OF ELECTION
By virtue of and pursuant to the power vested in the National Labor
Relations Board by Section 9 (c) of the National Labor' Relations'
Act, 49 Stat. 449, and pursuant to Article III, Section 8, of National
Labor Relations Board Rules and Regulations-Series 2, as amended,
it is hereby
DIRECTED that, as part of the investigation ordered by'the Board'
to 'ascertain representatives for collective bargaining with the
respondents S. R. Abinante and Frank S. Nola, copartners doing busi=
ness under the firni,name Abinante & Nola Packing Co.;' California
Packing Corporation; California Prune and Apricot Growers' Associa-
tion; C. L. Dick & Company; Guggenhime & Company; Hamlin and
Company; Libby; McNeill' & Libby; Joseph P. Perrucci and F. L.
DiNapoli, copartners doing business under the firm name Mayfair
Packing Company; Richmond-Chase Company; J. S. Roberts; Rosen-
berg Bros. & Co.; C. D. Stevens, doing business under the firm name
Warren Dried Fruit Co.; 'and Winchester Dried Fruit Company, an
election by secret ballot be conducted under the direction and super
vision of the Regional Director for the Twentieth Region, acting' in
this matter as agent for the National Labor Relations Board and sub-
ject to Article III, Section 9, of said Rules and Regulations, at such'
time as the Board in the future shall direct, among all the employees
of the said respondents in,their respective dried-fruit plants in Santa
Clara and San Benito Counties, in the State of California, including.
all boxmakers engaged in the said plants, but excluding officers, execu-'
323429-42-85
1334 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tives, clerical and other office employees , engineers , truck drivers,
teamsters , superintendents , assistant superintendents , and all persons
having authority to hire or discharge employees, to determine whether
they desire to be represented by Warehousemen 's Union, Local 1-6,
International Longshoremen 's and Warehousemen 's Union, or by
Dried Fruit and Nut Packers Union No. 21084 of Santa Clara County,
California , for purposes of collective bargaining , or by neither.
EDWIN S. SMITH , dissenting in part:
I think that the respondents ' refusal to bargain with Local 1-6 was
an unfair labor practice.
In my opinion it is clear from the record that , when the respondents
admittedly refused to bargain with Local 1-6 on June 15 and 30, 1939,
Local 1-6 was the exclusive representative of all the employees.
The record shows that Local 1-6 offered the respondents designations
signed by a majority of the employees 'to prove its status as exclusive
representative , but that the respondents refused to examine the
designations , and continued to negotiate with Union No. 21084 as the
employees ' exclusive representative . The question arises whether
or not the fact that some employees signed designations of both
organizations after the mass shift commencing April 20, 1939, cast a
doubt upon Local 1-6's status which an examination of the designa-
tions could not have dispelled , and thus justified the refusal to bargain
in the absence of certification of Local 1-6 by the Board. Obviously,
the designations of Union No . 21084 could not have caused such
doubt if they were signed as a result of the respondents' unfair labor
practices and did not represent the employees ' free choice. I dis-
agree with the finding of the majority of the Board that the member-
ship of Union No. 21084 immediately prior and subsequent to April 20
must be' considered a voluntary one. After the respondents in 1937
instigated the formation of Union No . 21084 and urged and persuaded
their employees to join that organization , the employees were at no
time informed that they were free to relinquish their membership.
On the contrary, when , occasion arose, all six of the larger respondents,
and at least one of the others , persuaded and even compelled em-
ployees to maintain their good standing in Union No. 21084, and the
record shows several instances of such persuasion or compulsion-after
April 20, 1939. Moreover , the agreement in effect from June 14,
1938, to April 15, 1939, provided that each respondent , in hiring new
employees, defined as all persons not employed by such respondent
at the time of the signing of the agreement , would give preference to
unemployed members of Union No. 21084 who were former employees
of such respondent . Since these facts were known to the respondents,
it is clear that the duplications of signatures could not have
ABINANTE & NOLA PACKING CO. 1335
caused doubt in their minds as to the employees' desires concerning
representation.
Further, leaving out of consideration the respondents' past unfair
labor practices, thus providing a basis for the assumption that they
might reasonably have had doubt as to Local 1-6's status, that
organization's claim of exclusive representation, accompanied by a
tender of application cards signed by a majority of the employees in
the unit, must necessarily have made the respondents at least as
doubtful of the claim of Union No. 21084. No adequate reason has
been offered why Union No. 21084 was entitled to more favored
treatment under these circumstances than Local 1-6, and in my'
opinion the respondents' continued dealing with Union No. 2'1084
shows beyond question that their course of conduct was motivated
not by doubts concerning representation, but by their manifest
preference for the A. F. of L. over the C. I. 0.
I also dissent from the Board's finding with respect to McCauley's
reinstatement. Blaurock admitted that when McCauley applied for
his job he reproached McCauley for things he had done, and
McCauley's uncontradicted testimony is that the "things he had
. . , done," referred to by Blaurock, consisted of action he had taken
as president of Union No. 21084 to compel Guggenhime to carry out
the 1937 contract. Moreover, I do not interpret McCauley's testi-
mony to mean that Blaurock told him he could have his job if he
insisted upon the carrying out of the contract,71 especially since he
testified clearly that Blaurock told him he could not be reemployed.
McCauley was on the stand for several days, and in no important
respect, except this, was any of his testimony contradicted. His
testimony is impressive in its careful regard for accuracy, and I agree
with the Trial Examiner's judgment that his version of the interviews
with Blaurock and Lacher was correct.
71 I think , furthermore , that such a statement, if made , would not have been an offer of reemployment.