Capolino Packing Corp.

National Labor Relations Board - Board Decisions

Dec 13, 1946

71 N.L.R.B. 1003 (N.L.R.B. 1946)

In the Matter of SCIENTIFIC NUTRITION CORPORATION D/B/A CAPOLINO PACKING CORPORATION and FOOD, TOBACCO, AGRICULTURAL AND ALLIED WORKERS UNION OF AMERICA, CIO and INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA, AFL, PARTY TO THE CONTRACT Case No. ?O-C-1 2!.Decided December 13, 1946 Mr. Robert Tillmaan, for the Board. Messrs. James R. Agee and J. Paul St. Sure, of Oakland, Calif., for the respondent. Tobriner and Lazarus, by Mr. Mathew Tobriner, of San Francisco, Calif., for the Teamsters. Mr. Warren G. Horie, of Merced, Calif., and Mr. if. Wolf, of New York City, for the CIO. Mr. Samuel M. Haynard, of counsel to the Board. DECISION AND ORDER On June 20, 1946, Trial Examiner Sidney Lindner issued his Inter- mediate Report in the above-entitled proceeding, finding that the re- spondent had engaged in and was engaging in certain unfair labor practices and recommending that the respondent cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto. Thereafter, the Team- sters filed exceptions to the Intermediate Report and a supporting brief; the respondent filed no exceptions. On October 1, 1946, the Board at Washington, D. C., heard oral argument, in which the re- spondent, the Teamsters, and the CIO participated. The Board has reviewed the rulings of the Trial Examiner and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Intermediate Report, the exceptions and brief, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner, with the following exceptions and modifications : 1. The Trial Examiner found, and we agree, that the respondent engaged in conduct violative of Section 8 (1) of the Act. In so agree- 71NLRB,No171 1003 1004 DECISIONS OF NATIONAL LABOR RELATIONS BOARD nng, however, we, unlike the Trial Examiner, do not pass upon the Teamsters' contention that, by virtue of an award of jurisdiction over the cannery workers by the Executive Council of the American Fed- eration of Labor, the Teamsters became the legal successor to Local 22382, and thereby inherited its then outstanding contract with the respondent and its exclusive representative status. It is our opinion, and we find, that regardless of the status of the Teamsters, either as a successor to the bargaining representative or as a newly chosen repre- sentative of the employees, a matter upon which we deem it unnecessary to pass, the respondent's conduct was violative of the Act. As set forth in the Intermediate Report, the respondent warned its employees that they faced a plant shut-down and resultant unemployment unless they joined the Teamsters, and otherwise assisted the Teamsters in recruiting new members. In the absence of a valid existing closed- shop agreement, such encouragement of membership in the Teamsters by the respondent is prohibited by the Act, even though the Teamsters may have then represented a majority of the employees' We find, as did the Trial Examiner, that neither Local 22382 nor the Teamsters had a closed-shop agreement with the respondent.' 2. The Trial Examiner found that the discharge of Gus Cedar for refusing to join the Teamsters was violative of Section 8 (3) of the Act. No exceptions were filed to this finding, and we agree with the Trial Examiner insofar as his conclusion is based on his subsidiary finding that the Master Agreement, upon which the respondent relies, was not a closed-shop contract 3 and therefore gave no justification for the discharge of Gus Cedar. 3. The Trial Examiner, having found that "the respondent assisted the Teamsters in obtaining a majority of members among the respond- ent's employees," and that the contract of May 18, 1945, was therefore illegal, recommended that the respondent be required to refrain from recognizing the Teamsters as the exclusive bargaining representative of its employees unless and until the Teamsters is duly certified as such representative by the Board. Our disposition of the issues herein makes it unnecessary for us to pass upon the validity of the 1945 con- tract; and, inasmuch as that contract expired on March 1, 1946, and there has since been no collective bargaining between the respondent and the Teamsters, we see no need for including the 'Trial Examiner's recommendation in our Order 4 1 N L R B v. Electric Vacuum, Cleaner Company , 315 U . S. 685 , reversing 120 F (2d) 611 (C C A 6). setting aside 1S N L R. B. 591: N L R B. v John Engclhorn & Pont, 134 P (2d) .5-51 (C C A 3) enforcing 42 N L. R B 866. 1fotter of a TV Hume and California Processors & Growers, Inc, 71 N L R B 533 ' The contention that the parties understood and administered the contract as requiring membership in the Teamsters , is not supported by the evidence See Matter of G TV Hume and California Processors & Grou;erc, Inc, 71 N. L. R B 533 ' However , it should he noted that in the Bcrcut-Richard4 representation proceedincs (6n N, L R B 1052 . 10,57) the Board advised the employers that they "mav not, pending SCIENTIFIC NUTRITION CORPORATION 1005 ORDER Upon the entire record in the case, and pursuant to Section 10 (c) of the National Labor Relations Act, the National Labor Relations Board hereby orclets that the respondent, Scientific Nutrition Corpora- tion d/b/a Capohno Packing Corporation, Atwater, California, and it officers, agents, successors, and assigns shall : 1. Cease and desist from: (a) Encouraging membership in International Brotherhood of ,teamsters, Chauffeurs, Warehousemen and Helpers of America, AFL, or any other labor organization of its employees, by discharging and refusing to reinstate any of its employees, or by discriminating in any other planner in regard to their hire or tenure of employement, or any term or condition of their employment; (b) In any other manner encouraging or coercing its employees to become or remain members of International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, AFL, or any other labor organization, whether or not because of pressure from that or any other labor organization, or because of other economic considerations. 2. Take the following affirmative action, which the Board finds will effectuate the policies of the Act: (a) Offer to Gels Cedar immediate and full reinstatement to his former or a substantially equivalent position, without prejudice to his seniority or other rights and privileges; (b) Make whole Gus Cedar for any loss of pay he may have suffered by reason of the respondent's discrimination against him, by payment to hint of a sum of money equal to the amount that he normally would have earned as wages during the period from June 22, 1945, the date of his discharge, to the (late of the respon(lei it's offer of reinstatement, less his net earnings during said period (c) Post at its plant at Atwater, California, copies of the notice attached hereto, marked "Appendix A." Copies of said notice, to be furnished by the Regional Director for the Twentieth Region, shall, after being duly signed by the respondent's representative, be posted a new election, ,ive preferential tieatment to any of the labor oigaiiization,, involved Moreover, in recent complaint proceedings before the Board, involving similar can- nery plants and cannery workers, we have held that the execution of an exclusive bargain- ing contract, in the face of a pending question concerning representation, constituted a violation of Section 8 (1) of the Act Matter of Plotill Productq, Inc 70 N L R B 119 , Matter of Lincoln Packing Co, 70 N L R. B 135 It need only be added that the re- spondent herein is a paity to the representation proceedings still pending before the lioai 1 in Matter of Bercut Richards Packing Company, et al. (64 N L R B 133, 65 N L R n 1052). 5In the event that this older is enforced by a demee of a Circuit Court of Appeals, theie shall be inserted before the words "A DECISION AND ORDER," the words • "A DECRRF. OF THE UNITED STATES CIRCUIT COURT OF APPEALS ENFORCING " 1006 DECISIONS OF NATIONAL LABOR RELATIONS BOARD by the respondent immediately upon receipt thereof and maintained by it for sixty (60) consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the respondent to insure that said notices are not altered, defaced, or covered by any other material; (d) Notify the Regional Director for the Twentieth Region in writing, within ten (10) days from the date of this Order, what steps the respondent has taken to comply herewith. MR. JAMES J. REYNOLDS, JR., took no part in the consideration of the above Decision and Order. APPENDIX A NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, we hereby notify our employees that : We will not in any manner encourage or coerce our employees to become or remain members of International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, AFL, or any other labor organization, whether or not because of pressure from that or any other labor organization, or because of other economic considerations. We will offer to Gus -Cedar immediate and full reinstatement to his former or a substantially equivalent position, without prejudice to any seniority or other rights and privileges enjoyed, and make him whole for any loss of pay suffered as a result of the discrimination. All our employees are free to become or remain members of any labor organization. We will not discriminate in regard to hire or tenure of employment or any term or condition of employment against any employee because of membership in or activity on behalf of any such labor organization. SCIENTIFIC NUTRITION CORPORATION, L naployer. By---------------------------------------- (Representative ) ( Title) Dated-------------------- This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. I SCIENTIFIC NUTRITION CORPORATION 1007 INTERMEDIATE REPORT 111r. Robert E. Ttllmtan, for the Board. Mi. James R. Agce, of Oakland, Calif., for the respondent. Tobi finer and Lacaras, by !llr. Mathew Tobrtner, of San Francisco, Calif., for the AFL. il[i Wai ren G. Moire, of Merced, Calif., for the CIO. STATEMENT OF THE CASE, Upon a third amended charge duly filed by the Food, Tobacco, Agricultural and Allied Workers Union of America, C I 0, herein called the CIO, the Na- tional Labor Relations Board, herein called the Board, by its Regional Director for the Twentieth Region (San Francisco, California), issued its complaint dated April 23, 1946. against Scientific Nutrition Corporation, d/b/a Capolino Packing Corporation, herein called the respondent, alleging that the respondent had engaged in and was engaging in unfair labor practices affecting commerce within the meaning of Section 8 (1) and (3), and Section 2 (6) and (7) of the National Labor Relations Act, 49 Stat. 449, hei ern called the Act. Copies of the complaint and notice of hearing were duly served upon the respondent, CIO, California State Council of Cannery Unions, AFL, and International Brother- bood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, AFL, herein called the Teamsters, party to the contract With respect to the unfau• labor practices, the complaint alleged in substance that the respondent: (1) urged, persuaded, threatened, and warned its em- ployees to become members of the Teamsters, granted access to representatives of the Teamsters, assisting it in obtaining a majority of members among the respondent's employees, and enteied into a contract with the Teamsters which is alleged to be illegal because of the :itoresaid acts; (2) on or about June 22, 1945, discharged its employee Gus Cedar because he refused to join the Team- sters and has at all tunes Thereafter refused to rciustate him; and (3) because of all the alleged acts set forth above has interfered with, restrained, and coerced its 'employees in the exci rise of rights guarantee(] in Section 7 of the Act Thereafter, the respondent and the Te:nnsteis filed answers den}mg the com- mission of any unfair labor practices. Pursuant to notice, a hearing was held in Merced, California, on May 14, 1946, before the undersigned, Sidney Lindner, the Trial Examiner duly designated by the Chief Trial Examiner The Board, the respondent, the Teamsters were represented by counsel, and the CIO by a lay representative and participated in the hearing The ,pa 'ties were afforded full opportunity to be heard, to ex- :unune and cross-examine witnesses, and to introduce evidence bearing on the issues At the opening of the hearing counsel for the Teaiastei s moved to dismiss the complaint in its entirety on the grounds that (1) the Board on or about February 15, 1946, having already "provid^_d" that the respondent is without right to bargain and contract with the AFL, has, by such pronouncement, pre- judged the present case, and is therefore not the proper tribunal before which the matters presented by the complaint herein should be tried, and (2) the complaint does not state a cause of action The motion was denied by the under- signed At the conclusion of the hearing all parties engaged in oral argument mid were granted leave to file briefs on or before May 24, 1946, with the under- signed. No briefs have been received Upon the record in the case and from his observation of the witnesses, the undersigned makes the following: 71 7 7 34-47-v of 71 Go 1008 DECISIONS OF NATIONAL LABOR RELATIONS BOARD FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT The Scientific Nutrition Corporation is a New York corporation having its principal office in New York City. It operates plants at Atwater, California, and at Colon, Cuba, where it is engaged in the business of canning and processing fruits and vegetables. At its Atwater, California plant, the only plant involved in this proceeding , the respondent is engaged in business as the Capolino Packing Corporation . The annual,%ales of products from the respondent's Atwater plant total approximately $1,500,000, of which approximately 90 percent represents the amount of sales of products which are shipped from the plant to points outside the State of California. The respondent admits that it is engaged in commerce within the meaning of the Act. II. THE ORGANIZATIONS INVOLVED Food, Tobacco, Agricultural and Allied Workers Union of America, 010. International Brotherhood ofTeanisters, Chauffeurs, Warehousemen and Helpers of America, AFL, and California State Council of Cannery Unions, AFL, and its constituent unions , one of which is Local 22382, are labor organizations admitting to membership employees of the respondent. III. THE UNFAIR LABOR PRACTICES A. Events leading vp to the contract with the Teamsters In 1941, Cannery Workers Union Local 22382, a Fedeiai Local Union of the American Federation of Labor, herein referred to as Local 22382, entered into a collective bargaining contract with the Capolino Packing Corporation, herein referred to as Capolino. By the terms of this contract the parties thereto adopted and agreed to be bound by the Master Agieement' previously executed by and between California Processors and Growers, Inc, herein referred to as the Association, and the American Federation of Labor, and California State Council of Cannery Unions, although Capolino was not a member of the Association. Subsequent to 1941, the parties (lid not enter into any new written contracts, but continued to maintain the same contractual status agreed upon in 1941. Shortly after January 1, 1945, J. Capolino, the then manager of the Capolino plant, notified Local 22382, by letter, that Scientific Nutrition Corporation, herein referred to as the respondent, had taken over full control and ownership of the plant2 and that collective bargaining contracts in the future would have to be signed by an official of the New York office, until such lime as J Capolnno was authorized to do so himself The respondent continued to recognize Local 22382 as the exclusive bargaining representative of its employees under the a.une terms and conditions as theretofore. On or about May 8, 1945, the respondent received a written communication from the Teamsters as follows : SCIENTIFIC NUTRITION CORPORATION, Atwater, California Attention Mr Joseph Capolino GENTLE_IIEN : The following is the action of the Executive Council of the American Federation of Labor in a meeting held in Washington , D. C., on May 3rd, 1945 1 Also referred to in the record as the C. P. & G. contract and the "green book agree- ment". 2 Capoline Packing Corporation was sold to Scientific Nutrition Corporation whose man) office is in New York Citi, in the each part of 1944 SCIENTIFIC NUTRITION CORPORATION 1009 "The following is the award of the Executive Council-it is the sense of this Council meeting that the interests of the American Federation of Labor would be protected and preserved in the canning industry in Cali- fornia, Washington , and Oregon by the transfer of the federal labor unions in that field to the Teamsters International Union and that the officers of the Federation be directed to cooperate with the Teamsters International Union in bringing about this result, and that the A. F. of L. cooperate in helping to organize the unorganized in this field." By the above action the International Brotherhood of Teamsters, Chauf- feurs, Waiehousemen and Helpers Union of America inherit the agreement now in effect between your company and the American Federation of Labor and the Local Cannery Workers Union The International Brotherhood of Teamsters wish to advise you that we expect your company to immediately recognize only the Teamsters International Union as the representatives of your employees and in return the Teamsters International Union will live up to the agreement now in effect to the letter. Would appreciate an answer by retain wail, your position in this matter Yours truly, (s) H. L WOXBERQ, International Representative. By letter dated May 11, 1945, which the respondent admitted receiving, the Cannery and Food Process Workers' Council of the Pacific Coast, advised the respondent that the transfer of Local 22382 membership to the Teamsters by the Executive Council of the American Federation of Labor was made without regard to the wishes of the members That as a result, the employees terminated their membership in Local 22382 and organized under the name of Cannery Food Process Workers Union of Modesto Area and had received a charter from the Cannery and Food Process Workers' Council of the Pacific Coast. Further, that' the Cannery and Food Process Workers Union of Modesto Area represented all of the respondent's employees except supervisors in collective bargaining matters and indicated a willingness to meet with the respondent This letter was apparently never answered by the respondent On the Monday following the receipt of the above letters, the employees were assembled in the warehouse of the plant during working hours, where they were addressed by J. Capolino.3 Present also were Eugene Mclsaac, plant super- intendent, and in charge of labor relations, Stewart, assistant plant super- intendent, Spafford, foreman of the warehouse, and White, assistant manager. According to Gus Cedar, a boilerman in the respondent's employ,` J. Capolino told the employees that the respondent had been notified by the Teamsters that that the Union was "going to take over the plant," and that there was nothing that the employees could do He said further that if they did not join the Teamsters, that Union would stop deliveries to the plant, causing a cessation of operations and the resultant loss of employment. Cedar then asked J. Capolino to allow the employees sufficient time to contact Local 22382 in Modesto, Cali- fornia, so that they could "find out what it was all about." 3 The record reveals that the plant was not engaged in canning at this time and only the regular employees , of whom there were 26, attended the meeting The discharge of Cedar will be discussed hereinafter. In essential details Mclsaac coiroborated Cedar' s testimony . He did not specifically deny that J Capolino told the employees that if they did not join the Teamsters , deliveries Would stop He admitted that J Capolino, after advising the employees of the substance of the May 8, letter from the Teamsters said that he "was afraid this was going to lead 1010 DECISIONS OF NATIONAL LABOR RELATIONS BOARD About 2 hours after the above-described meeting,' a group of five representatives of the Teamsters, which included King, Torreano, Brown, mud two unidentified men, called at the plant office and asked J Capolino and Mclsaac what their intentions were with respect to the May 8, letter. They were informed that until such time as the employees designated the Teamsters to represent them, the respondent did not intend to do anything ; that the choice of a union remained with the employees. The Teamsters' representatn-es then requested the re- spondent's permission to talk to the employees, which was granted. Mclsaac instructed the employees to gather again in the warehouse. When they were all assembled, Mclsaac intormed them that the representatives, of the Teamsters wanted to talk to them. King introduced himselt,' and told the em- ployees that he was now working for the Teamsters, and stated his reasons for changing his affiliation to that Union. He also outlined the benefits the employees would gain by affiliation with the Teamsters. According to the uudemed testi- mony of Cedar which the undersigned credits, King then asked the emploN ees when they were going to sign up with the Teamsters Torieano also spoke along similar lines. Mclsaac was present while King and Torreano spoke to the em- ployees After the meeting and while the employees were still in the -warehouse, the Teamsters representatives went among the employees and solicited each one individually. That same afternoon the Teamsters presented signed membership applications of 13 of the employees to the respondent and demanded that a con- tract be signed The respondent refused to sign stating that the Teanisteis (lid not show a majority. About 2 or 3 days later the Teamsters returned to the, plant with 3 or 4 additional signed membership applications The respondent checked all the signatures to determine their validity and on May 18, signed the following contract with the Teamsters. AGREEMENT This Agreement made and entered into this 18 dad of May, 1945), by and between the Scientific Nutrition Corporation, of Atw;iter, California, hereiu- atter designated as the Employer and The Iuteinational Iliotlierhood of Teamsters, Chauffeurs, Warehousemen and Helpets Union of America, af- filiated with the American Federation of Labor, hereuuitter designated as the Union, to become effective 5-18-1945. Witnesseth' That in consideration of the premises it is mutually agreed as follows : SECTION 1. That the Employer hereby agrees to Iecoanize the Union as the sole collective bargaining agent for all the employees of the Employer covered by the master agreement between the California I'iocessors and Growers. Inc., and the American Federation of Labor and the Califoi mina State Council of Cannery Unions. SECTION 2. The employer agrees to place into effect any amendments to said master agreement which now are pending before the War Labor Board upon the War Labor Board approval. to a lot of trouble and possibly shut the plant dolt n ' but then told them he AA as not In- terested in their union affiliation so long as there was peace anion, the emploiees rind the plant could continue to operate The undersigned ciedits Cedar's testimony. The first meeting took place at 8 10 a ni 7 King was known to the emplo3ces as he tormerli- had been an official of Local 22 52. SCIENTIFIC NUTRITION CORPORATION 1011 In witness whereof, the parties hereto have set their hands and seals this l8 day of May, 1945. Union: Ti-IF, INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WARE- IIOUSE_i1E_N AND HELPERS UNION OF AMERICA, By H. L. WO-`nERG, International Representative. Employ Cr : SCIENTIbrIO NUTRITION CORP. By J CAPOLINO After it had signed the above contract, the respondent called another meeting of its employees in the plant during working hours Mclsaac notified them that a majority had signed membership applications in the Teamsters; that the respondent had signed a contract with the Teamsters, and that henceforth it would be bound by such contract Mclsaac, according to Cedar's undenied testi- mony which the undersigned credits, also told the employees that "it was too late now to do anything about it " Mclsaac admitted that the respondent never showed the employees a copy of the contract it had signed with the Teamsters, nor did it post the same or any notice to that effect However, shortly after the contract was signed, King, Torreano, and Blown were again granted permission by the respondent to talk to the employees dui ing a rest period, and at this time according to Mclsaac the employees were Shown the signed contract by the Teamsters' representatives It was on this occasion, according to Cedar's umlenied testimony which the undersigned credits, that King remarked that a few of the employees had not yet signed up Willi the Teamsters and warned, "If you boys don't sign up, you will be all sitting out in the park because this plant is going to be closed." B The discizinniatory discharge of Gus Cedar On June 22, 1945, the respondent discharged Gus Cedar under the following ci t cIDDStaI ices In June 1944, Cedar was hired by the respondent and given "regular" employ- ment as a boiler room operator Cedar was a member of Local 22382 since November 1940 and continued his membership in good standing in that union doting his entire period of employment with the respondent. Cedar testified that the membership of Local 22382 never discussed affiliation with the Teamsters, and that he first learned of the award of jurisdiction of the canneiy workers to the Teamsters at the meeting of the respondent's employees called by J Capolino on or about May 14, 1945, described above. As found heretofore the Teamsters' representatives were granted permission by the respondent to solicit its employees in the plant during working hours. Cedar's uncoritradicted testimony is that he was solicited to join the Teamsters by King and Torreano when they were in the plant the first time. On the second occasion when the Teamsters solicited the respondent's employees, Torreano wanted to know Ni hat Cedar was going to do about joining the Teamsters, Cedar replied, "not anything about it right now," and Torreano said, "Well, either sign up or else You know, out you go " About the latter part of May 1945, while Cedar was in Mclsaac's office, the latter asked him whether he had made up his mind about joining the Teamsters. When Cedar replied that he had not, Mclsaac said that the Teamsters was 1012 DECISIONS OF NATIONAL LABOR RELATIONS BOARD making demands on the respondent to fire Cedar, and that he was causing the respondent to let him go During the second week of June 1945, according to Cedar's testimony, J. Capolino talked to him about a leaflet that had been distributed in the plant by another union.' Cedar was accused by J. Capolino, according to the former, of participating in the distribution of the leaflets and was told that if he wanted to work for the respondent he would have to join the Teamsters.' On June 22, 1945, according to Cedar's undenied testimony which the under- signed credits, while he was working in the boiler room, Torreano and another Teamsters' representative, in the presence of Mclsaac, asked Cedar what his inten- tions were with respect to joining the Teamsters. Cedar replied that he was not going to become a member of the Teamsters, whereupon Torreano told him that he was fired and to, report to the office for his time M' N L. R B v. Star Publishing Co, 97 F. (2d) 465 (C C. A. 9), enforcing 4 N. L. R B. 496 is N L R B. v John Engelhorn & Soars, 134 F. (2d) 553 (C. C. A. 3 ), enf'g 42 N. L R. B. 886, see also N L. R. B v Electric Vacuum Cleaner Co., 315 U. S 685 , reversing 120 F. ( 2d) 611 (C C. A. 6), setting aside 18 N. L R. B. 591. ?' Local 2 2382 was composed of employees of various canneries located in the same geographic area as the respondent 1014 DECISIONS OF NATIONAL LABOR RELATIONS BOARD sentative under the Act is inherent in the employees and neither the employees nor the Board are necessarily bound by an award of a labor organization.16 Fur- thermore, the record is clear that at least some of the employees, if not a majority," did not desire the Teamsters to represent them as collective bargaining agent. The undersigned finds this contention without merit. Counsel for the Teamsters raised the further contention that when the Board in its original Decision in the Matter of Bercut-Richards l'ackinq Company, et al.," said ". . . Upon the facts in the present record, we shall assume the validity of the extended agreement heremabove referred to .', it recognized the validity of the May 1945, contract, between the respondent and the Team- sters Further, that the Board again recognized the validity of this very con- tract which is now the subject, of attack when in its Supplemental Decision in the Matter of Bercut-Richards Packtnq Convpan"y, et al" it said ". . . In this state of the record, no legal effect may be given the closed-shop provision con- tained in the current collective agreements after their expiration date; . The language of the Board carries no such import The Board in the Matter of Dc? cut-Richards Company, ct (it, was not confronted with the problem of determining the validity of the contract between the respondent and the Team- sters, as it is here. It is the Board's general practice in representation cases to presume the regularity and legality of a collective bargaining contract, and to refuse to admit evidence in such hearings on the question of whether or not a majority of employees covered by such a contract had actually designated the contracting -union as their reps esentative at the time the contract was made is The contention is without merit. Upon the record as a whole the undersigned is convinced and finds that the respondent urged and warned its employees to become members of the Teamsters, and granted the use of its time and property to representatives of the Teamsters for the purpose of addressing and soliciting its employees thereby lending sup- port to the Teamsters and assisting it in obtaining a majority of members among the respondent's employees The undersigned further finds that the contract of May 18, 1945, was entered into under circumstances prohibited by the Act and that thereby the respondent has interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act 2 With respect to the discharge of Gus Cedar The complaint alleges that the respondent discharged its employee, Gus Cedar, on June 22, 1945, and thereafter refused to reinstate him, because the said employee refused to join the Teamsters. . While admitting these facts, the respondent maintains that it discharged Cedar at the request of the Teamsters, in conformance with a valid closed-shop contract. Assuming, without conceding, that the contract between the respondent and the Teamsters contained a closed-shop provision, nevertheless, the proviso to Section 8 (3) of the Act permits discharge of an employee pursuant to the " See Matter of Albert Love D+ntei prises, doing business as Foote et Davies , 66 N L R B. 416 , Matter of Fuld t Hatch Knitting Cornpanr/, 67 N L R B 1059 15 As found above, the assistance of the respondent resulted in the Teamsters obtaining a majorit}. '6 64 N L R B 133, issued October 12, 1945 11 65 N. L R. B 1052 issued February 15, 1946 l' See Matter of The Lamson Brothers Company, 59 N. L R B 1561 ; Matter of United States Rubber Company, 62 N L R B 795. SCIENTIFIC NUTRITION CORPORATION 1015 terms of a closed-shop contract only where the contract was made with a labor organization which was not established, maintained, or assisted by any unfair labor practice and which was the representative of a majority of the employees in an appropriate unit covered by the contract when made As found in the prior section of this report, the respondent assisted the Teamsters in obtaining a majority of members among the respondent's employees, and entered into the May 18, 1945, contract under circumstances prohibited by the Act Therefore, the respondent's contract with the Teamsters did not meet the conditions of the proviso, and in discharging Cedar, the proviso afforded no protection to the respondent. Even assuming arquendo the validity of its contract with the Teamsters, since this contract incorporated the Master Agreement by reference, it is neces- sary to look to the Master Agreement to determine if by its terms it is a closed- shop contract in order to sustain the respondent's defense in its discharge of Cedar. As noted heretofore, Cedar was a "regular" employee who maintained his membership in good standing in Local 22382 during his entire period of employ- ment with the respondent. The Master Agreement clearly exempts employees on the seniority list'" from being required to obtain clearance slips as a condi- tion for going to work from season to season and is silent as to the "regular" or year-round employees. The most it does with reference to the employees on the seniority list is to require the employer to report to the local union, from time to time, the names of those in its employ who did not produce clearance slips on their resumption of work This part of the agreement contains no language that can be construed to mean that any employee on the seniority list may not be put to work without a union clearance or that he must be a member in good standing or a member at all, to qualify for employment. Nor is there any pro- vision in the Master Agreement that requires an employee who has joined a local union to maintain his membership in good standing as a condition of employment. The sole requirement that the Master Agreement imposes upon the employer in this respect is to see that "new employees," as distinguished from employees on the seniority list, file applications for membership in the appropriate local union when they go to work and to notify the new employees that, under the Master Agreement, they must complete their application with the local union within 10 days. The employer's iesponsibility for the new employees' affiliation ends upon the making of such applications by them and the giving of such notices. The local union expressly assumes, under the terms of the Master Agreement, full responsibility for the new employees' affiliation with it from that point forward The Master Agreement is likewise silent as to the obligations of the new employee to the local union after Ins application has been made at the time of his employment, except that within 10 days thereafter he must become a member It imposes no other obligations with respect to the employee's tenure of employment. At best, the lIaster Agreement in the opinion of the undersigned, is no more than a preferential hiring contract. The undersigned finds that the respondent by discharging Cedar, discriminated in regard to his hire and tenure of employment, thereby intertering with, restrain- ing, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act. "'The seniority list included "regular" and seasonal employees, i c., those other than regular employees who worked in a given plant at least 60 percent of the total number of operating days of said plant during the previous season. 1016 DECISIONS OF NATIONAL LABOR RELATIONS BOARD IV. THE EFFECT OF THE UNFAIR, LABOR PRACTICES UPON COMMERCE The activities of the respondent set forth in Section III, above, occurring in connection with the operations of the 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 Having found that the respondent has engaged in unfair labor practices, the undersigned will recommend that it cease and desist therefrom and take the following affirmative action which it is found will effectuate the policies of the Act. It has been found that the respondent assisted the Teamsters in obtaining a majority of members among the respondent's employees and thereafter on May 18, 1945, entered into a contract recognizing the Teamsters as exclusive bargain- ing representative of its employees, which contract is illegal because of the aforesaid assistance. Since the said contract expired by its terms on March 1, 1946, no recommendation that the respondent be ordered to cease and desist from giving effect to said contract is necessary. However, in order to prevent recognition of the Teamsters by the respondent either by oral agreement' or otherwise, the undersigned will recommend that the respondent be ordered not to recognize the Teamsters as the exclusive bargaining representative of its employees unless and until said organization shall be duly certified by the Board as exclusive bargaining representative of its employees. Nothing herein, how- ever, should be construed as requiring the respondent to vary any wage, hour, seniority or other substantive features of its relations with the employees them- selves, which the respondent has established in the performance of this contract, or to prejudice the assertion by the employees of any rights they may have under such agreement. It has also been found that the respondent discriminated in regard to the hire and tenure of employment of Gus Cedar a "regular" employee. The undersigned will recommend that the respondent offer him immediate and full reinstatement to his former or substantially equivalent position, without prejudice to his seniority or other rights and privileges, and make him whole for any loss of pay lie may have suffered by reason of such discrimination, by payment to him of a sum of money equal to the amount he normally would have earned as wages during the period from June 22, 1945, the date of his discharge, to the date of the respondent's offer of reinstatement to him, less his net earnings 20 during said period. Normally in cases in which an employer has unlawfully discrim- inated against an employee by discharging him, in addition to affirmative relief; the Board orders the employer to cease and desist from in any manner infringing upon the rights guaranteed in Section 7 of the Act In the instant case, however, the respondent discharged Cedar not to satisfy any purpose of its own but, rather, yielded to the pressure of the Teamsters. Under such circumstances, and in view of the absence of any evidence that danger of other unfair labor practices is to ro By "net earnings" is meant earnings less expenses. such as for transportation, room and board, Incurred by an employee in connection with obtaining work and working else- where than for the respondent, which would not have been incurred but for his unlawful discharge and the consequent necessity of his seeking employment elsewhere. See Hatter of Crossett Lumber Company. S N L R Ti 440 Monies received for work performed upon Federal. State, county, municipal, or othei work-relief projects shall be considered as earn- ings See Republic Steel Corporation v. AT L. R. B., 311 U. S. 7. SCIENTIFIC NUTRITION CORPORATION 1017 be anticipated from the respondent's conduct in the past, the undersigned will not recommend that the respondent be enjoined from the commission of any and all unfair labor practices. Nevertheless, the undersigned will recommend that the respondent be ordered to cease and desist from the unfair labor practices found herein 21 On the basis of the foregoing findings of fact and upon the entire record in the case, the undersigned makes the following: CONCLUSIONS OF LAW 1. Food, Tobacco, Agricultural and Allied Workers Union of America, C. I. 0., International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, AFL, California State Council of Cannery Workers, AFL, and Can- nery Workers Union, Local 22382, are labor organizations within the meaning of Section 2 (5) of the Act. 2. By discriminating in regard to the hire and tenure of employment of Gus Cedar, thereby encouraging membership in the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, AFL, the respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (3) of the Act 3. By interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, the respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (1) of the Act 4 The aforesaid unfair labor practices are unfair labor practices within the meaning of 'Section 2 (6) and (7) of the Act. RECOMMENDATIONS Upon the basis of the above findings of fact and conclusions of law, the under- signed recommends that the respondent Scientific Nutrition Corporation, d/b/a Capolino Packing Corporation, Atwater, California, its officers, agents, successors,, and assigns shall: 1 Cease and desist from : (a) Recognizing International Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America, AFL, as the exclusive representative of its employees for the purposes of collective bargaining unless and until said organi- zation shall be certified by the National Labor Relations Board as the exclusive representative of such employees ; (b) Encouraging membership in International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, AFL, or any other labor organization, by discharging and refusing to reinstate any of its employees or in any other manner discriminating in regard to their hire and tenure of em- ployment or any terms or conditions of employment; (c) In any manner encouraging membership in International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, AFL, or any other labor organization, by yielding to pressure from that organization, or other pressure. 2. Take the following affirmative action which the undersigned finds will effectuate the policies of the Act : (a) Offer to Gus Cedar immediate and full reinstatement to his former or sub,tantially equivalent position without prejudice to his seniority or other rights and privileges; 21 See Matter of American Car and Foundry Company, 66 N. L R. B. 1031. 1018 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (b) Make whole the said Gus Cedar in the manner set forth in the section entitled "The remedy" for any loss of pay he may have suffered by reason of the respondent's discrimination against him; (c) Withhold all recognition from International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, AFL, as the exclusive rep- resentative of its employees for the purpose of collective bargaining with respect to rates of pay, wages, hours of employment and other conditions of employment unless and until said organization shall have been certified by the National Labor Relations Board as the representative of such employees, (d) Post at its Atwater, California, plant copies of the notice attached hereto and marked Appendix A. Copies of the notice, to be furnished by the Regional Director for the Twentieth Region, after being duly signed by the respondent's representative, shall be posted by the respondent immediately upon receipt thereof and maintained by it for sixty (60) consecutive clays thereafter, in conspicuous places, including all places where notices to employees are customarily posted Reasonable steps shall be taken by the respondent to insure that said notices are not altered, defaced or covered by any other material ; (e) File with the Regional Director for the Twentieth Region, on or before ten (10) days from the date of the receipt of this Intermediate Report, a report in writing setting forth in detail the manner and form in which the respondent has complied with the foregoing recommendations. It is further recommended that unless the respondent notifies said Regional Director in writing within ten (10) days from the receipt of this Intermediate Report that it will comply with the foregoing recommendations, the National Labor Relations Board issue an order requiring it to take the action aforesaid. As provided in Section 33 of Article II of the Rules and Regulations of the National Labor Relations Board, Series 3, as amended, effective November 27, 1945, any party or counsel for the Board may, within fifteen (15) clays from the date of the entry of the order transferring the case to the Board, pursuant to Section 32 of Article II of said Rules and Regulations, file with the Board, Roehambeau Building, Washington 25, D C, an original and four copies of a statement in writing, setting forth such exceptions to the Intermediate Report or to any other part of the record or proceeding (including rulings upon all motions or objections) as he relies upon, together with the original and four copies of a brief in support thereof Immediately upon the filing of such state- ment of exceptions and/or brief, the party or counsel for the Board filing the same shall serve a copy thereof upon each of the other parties and shall file a copy with the Regional Director. As further provided in said Section 33, should any party desire permission to argue orally before the Board, request therefor must be made in writing to the Board within ten (10) days from the date of the order transferring the case to the Board. Any party desiring to submit a brief in support of the Intermediate Report shall do so within fifteen (15) days from the date of the entry of the order transferring the case to the Board, by filing with the Board an original and four copies thereof, and by immediately serving a copy thereof upon each of the other parties and the Regional Director. SIDNEY LINDNER, Trial Examiner. Dated June 20, 1946. SCIENTIFIC NUTRITION CORPORATION APPENDIX A NOTICE TO ALL EMPLOYEES 1019 Pursuant to the recommendations of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, we hereby notify our employees that : We will not recognize International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, AFL, as the exclusive representative of our employees for the purposes of collective bargaining, unless and until said organization shall be certified by the National Labor Relations Board as the exclusive representative of such employees We will not in any manner encourage membership in International Brother- hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, AFL, or any other labor organization, by yielding to pressure from that or any other labor organization or other pressure. We will offer to Gus Cedar immediate and full reinstatement to his former or substantially equivalent position without prejudice to any seniority or other rights and privileges enjoyed, and make him whole for any loss of pay suffered as a result of the discrimination All our employees are free to become or remain members of any labor organiza- tion We will not discriminate in regard to hire or tenure of employment or any term or condition of employment against any employee because of membership in or activity on behalf of any stich labor organization SCIENTIFIC NUTRITION CORPORATION, Employer. Dated -------------------- 13y --------------------------------------- (ltepiesentative) (Title) This notice must remain posted for 60 (lays from the elate hereof, and must not be altered, defaced, or covered, by any other material.