G. W. Hume Co.

National Labor Relations Board - Board Decisions

Oct 31, 1946

71 N.L.R.B. 533 (N.L.R.B. 1946)

In the Matter of G. W. HUME COMPANY AND CALIFORNIA PROCESSORS
& GROWERS, INC. and FOOD, TOBACCO, AGRICULTURAL & ALLIED WORK-
ERS UNION OF AMERICA, C. I. 0. and INTERNATIONAL BROTHERHOOD
OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMER-
ICA, A. F. OF L., AND CALIFORNIA STATE COUNCIL OF CANNERY UNIONS,
A. F. OF L., PARTIES TO THE CONTRACT
Case No. 00-C-1391.-Decided October 31, 1946
Mr. John Paul Jennings, for the Board.
Messrs. Paul St. Sure and James R. Agee, of Oakland, Calif., for
the respondent.
Messrs. Gladstein, Andersen, Resner, Sawyer, eC Edises, by Mr.
BertranmEdises, of Oakland, Calif., for the CIO.
Messrs. Tobriner d Lazarus, by Mr. Mathew 0. Tobriner, of San
Francisco , Calif., for the AFL.
Mr. Seymour Cohen, of counsel to the Board.
DECISION
AND
ORDER
On May 20, 1946, Trial Examiner Howard Myers issued his Inter-
mediate Report in the above-entitled proceeding, finding that the
respondent Hume had engaged in and was engaging in certain unfair
labor practices and recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in the copy of the
Intermediate Report attached hereto. The Trial Examiner further
recommended that the complaint be dismissed as to the respondent
Association, and also that it be dismissed without prejudice insofar
as it alleges that John M. Smith was discriminatorily discharged.
Thereafter the AFL filed exceptions to the Intermediate Report and
a supporting brief. On October 1, 1946, the Board at Washington,
D. C., heard oral argument in which the respondent Hume, the AFL,
and the CIO participated.
The Board has reviewed the rulings of the Trial Examiner at the
hearing and finds that no prejudicial error was committed. The rul-
ings are hereby affirmed. The Board has considered the Intermediate
Report, the exceptions and brief, and the entire record in the case, and
71 N L R B, No. 81.
533
534 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
hereby adopts the findings, conclusions, and recommendations of the
Trial Examiner with the modifications and additions hereinafter set
forth.
1. The Trial Examiner found that the respondent Hume entered
into a closed-shop contract with the AFL on March 25, 1946, after the
Board had determined that there existed a question concerning repre-
sentation of the employees covered by the contract,' and after the
Board had, in vacating the first election held to resolve the question
concerning representation, explicitly reserved to itself the determina-
tion of that question.2 We have already considered the propriety of
such conduct in a companion case, Matter of Flotill Products, Inc., 70
N. L. R. B. 119; and, for the reasons therein stated, we conclude that
the respondent Hume, by entering into the contract of March 25, 1946,
interfered with, restrained, and coerced its employees, within the
meaning of Section 8 (1) of the Act.' While it is not determinative
of the issue before us, it is to be noted as added proof of their unlawful
conduct that the parties, by executing the new contract, did more than
preserve the status quo. The provisions of this contract are more
stringent than the corresponding union security provisions theretofore
in effect, as set forth in the Intermediate Report.
The Trial Examiner also found, as an additional ground for invali-
dating the March 1946 contract, that it covered a unit different from
the unit previously found appropriate by the Board. In view of our
conclusion in the preceding paragraph, we find it unnecessary to pass
upon this further issue in the present case.
2. The Trial Examiner found that the respondent Hume discrimi-
natorily discharged 29 employees because of their failure to maintain
membership in the AFL. This issue is independent of the represen-
tation aspects of the case discussed in paragraph 1, above, and its
resolution is determined by well-established principles under Section
8 (3) of the Act and the proviso thereto.
The pertinent provisions of the contract in force at the time of the
discharges are set forth in the Intermediate Report, and we agree with
the Trial Examiner's conclusion that nothing in those provisions re-
quired the employees in question to maintain their union membership
as a condition of continued employment with the respondent.4 We
also agree with the Trial Examiner's conclusion that at the time of the
discharges the respondents did not regard the contract as requiring
i Matter of Bercut-Richards Packing Company; et al ., 64 N. L. R. B. 133.
2 Matter of Bercut-Richards Packing Company, et al., 65 N. L. R. B. 1052, 1057.
3In view of the state of the record and in view of our opinion that we shall effectuate
the policies of the Act by our remedial order, we find it unnecessary to determine whether
the execution of the contract also violated Section 8 (3) of the Act.
4 See N. L. R. B. v. Electric Vacuum Cleaner Company, Inc., 315 U. S. 685, 692 ; N. L. R. B.
v. Isthmian Steamship Company, 126 F. (2d) 598, 600 (C. C. A. 2) ; N,. L. R. B. v. Mason
Manufacturing Company, 126 F. (2d) 810, 814 (C. C. A. 9). Cf. Matter of The Iron Fire-
man Manufacturing Company, 69 N. L. R. B. 19.
G. W. HUME COMPANY 535
maintenance by employees of union membership, whatever oral under-
standing may have previously existed between the parties." Moreover,
that the parties clearly understood the difference, in terms and effect,
between a contract requiring maintenance of membership and one
which does not, becomes apparent by comparing the contract in effect
at the time of the discharges with the contract subsequently executed
by the parties in March 1946. In the latter contract the parties ex-
pressly provided that employees who failed to maintain their member-
ship in the Union could be discharged.
3. In Section VI of the Intermediate Report, entitled "The
Remedy," the Trial Examiner stated that the respondent would not
"be required or permitted," under the recommended order therein, to
vary those provision§ of the contracts in question which establish
"wages, hours of employment, rates of pay," etc. While we agree with
the Trial Examiner that our order does not require the respondent to
cease and desist from giving effect to these contract provisions, we do
not now consider it necessary to pass upon the permissibility of do-
uso.g
ORDER
Upon the entire record in the case, and pursuant to Section 10 (c)
of the National Labot Relations Act, the National Labor Relations
Board hereby orders that the respondent, G. W. Hume Company,
Turlock, California, and its officers, agents, successors, and assigns
shall :
1. Cease and desist from :
(a) Recognizing Cannery Workers Union, Local 22382, A. F. of L.,
and California State Council of Cannery Unions, A. F. of L., as the
exclusive representative of its employees for the purpose of collective
bargaining, unless and until said organization or organizations shall
have been certified by the National Labor Relations Board as the ex-
clusive representatives of such employees;
(b) Giving effect to its contract dated March 25, 1946, With Cali-
fornia State Council of Cannery Unions, A. F. of L., and Cannery
Workers Union, Local 22382, A. F. of L., or to any extension, renewal,
modification, or supplement thereof, or to any superseding contract
" In this connection, see Matter of Pittsburgh Plate Glass Company, 66 N L R B 1083,
where the contract contained a provision that the Company would cooperate with the
Union "to the best interests of all parties " A majority of the Board said "We do not
regard as controlling testimony of management and UMW representatives to the effect that
in their opinion the respondent was bound to require membership in the UMW as a condi-
tion of employment or that the respondent would accede to such a demand if the Ui\MW
insisted on it The record does not establish that the respondent agreed to bind itself to
require membership in the U\IW as a condition of employment * * * the proviso [to
Section 8 (3) ] affords no piotection to an arrangement in which an employer may at will
discriminate in favor of or against any employee with respect to the requirement of union
membership An employer, however excellent its motives, may not refuse to execute the
sort of agreement contemplated by the proviso and later invoke the proviso as a defense
to a dischaige made under a different agreement." To the same effect, see Matter of The
Iron Fireman Manufacturing Company, 69 N. L R B 19.
536 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
with those labor organizations or any other labor organization or
affiliate thereof, unless and until said organization or organizations
shall have been certified by the National Labor Relations Board as the
exclusive representatives of its employees;
(c) Discouraging membership in Food, Tobacco, Agricultural and
Allied Workers Union of America, C. I. 0., or encouraging or dis-
couraging membership in any other labor organization of its em-
ployees, by discharging or refusing to reinstate any of its employees,
or by discriminating in any other manner in regard to their hire or
tenure of employment or any term or condition of their employment;
(d) In any like or related manner Interfering with, restraining, or
coercing its employees in the exercise of their right to self-organiza-
tion, to form labor organizations, to join or assist Food, Tobacco,
Agricultural and Allied Workers Union of America, C. I. 0., or any
other labor organization, to bargain collectively through representa-
tives 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.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act.
(a) Offer to Clarence McVay and to the employees whose names
appear in Appendix B of the Intermediate Report, attached hereto,
immediate and full reinstatement to their former or substantially
equivalent positions, without prejudice to their seniority or other
rights and privileges, in the manner set forth in Section VI of the
Intermediate Report, entitled "The Remedy";
(b) Make whole the employees whose names appear in Appendices
B and C of the Intermediate Report for any loss of pay they may have
suffered by reason of the respondent's discrimination against them, in
the manner set forth in the afore-mentioned Remedy Section of the
Intermediate Report;
(c) Withdraw and withhold all recognition from California State
Council of Cannery Unions, A. F. of L., and Cannery Workers Union,
Local 22382, A. F. of L., as the exclusive representative of its em-
ployees for the purpose of collective bargaining with respect to rates
of pay, wages, hours of employment, and other conditions of employ-
ment, unless and until said organization or organizations shall have
been certified by the National Labor Relations Board as the repre-
sentatives of such employees ;
(d) Post at its cannery at Turlock, California, copies of the notice
attached hereto, marked "Appendix A." 6 Copies of the notice, to be
furnished by the Regional Director for the Twentieth Region, shall,
"In the event that this order is enforced by decree of a Circuit Court of Appeals, there
shall be inserted in the notice, before the words "A DECISION AND ORDER," the
words : "A DECREE OF THE UNITED STATES CIRCUIT COURT OF APPEALS EN-
FORCING."
G. W. HUME COMPANY 537
after being duly signed by the respondent's representative, be posted
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;
(e) Notify the Regional Director for the Twentieth Region, in writ-
ing, within ten (10) clays from the date of this Order, what steps the
respondent, Huine has taken to comply herewith.
IT IS FURTHER ORDERED that the complaint, insofar as it alleges that
the respondent California Processors and Growers, Inc., committed
unfair labor practices, be, and it hereby is, dismissed.
AND IT IS FURTHER ORDERED that the complaint, insofar as it alleges
that the respondent Hume * discriminated against John M. Smith
within the meaning of Section S (3) of the Act, be, and it hereby is,
dismissed without prejudice.
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 offer to those of the employees named below who have
not been reinstated, immediate and full reinstatement to their
former or substantially equivalent positions without prejudice to
any seniority or other rights and privileges previously enjoyed,
and make each of the following whole for any loss of pay suf-
fered as a result of the discrimination.
A. E. Berry H. F. Frazier A. E. Moore
Ernest G. Bishop Harlie Frischkneckt Harry E. Pierson
Vider Bjorklund Irwin C. Heagle Abe Thiessen
Jasper J. Bobb Oscar Johnson Neal Watts
Harold Dillard T. Boyd McKamey R. B. White
Wm. J. Ely Clarence McVay
Clyde Faddis Archie Miller
We will make whole the following named employees for any
loss of pay suffered as a result of our discrimination against them.
Clemie Robinson Agnes Hopkins Clifford C. Luther
Monroe Robinson Myrtle Brown R. E. Rearick
Thomas L. Broll Genevieve Alsup
Ruth Waite Marguerite Watts
538 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
We will not recognize the Cannery Workers Union, Local
22382, A. F. of L., and California State Council of Cannery
Unions, A. F. of L., as the exclusive representatives of our em-
ployees for the purpose of collective bargaining, unless and until
said organization or organizations shall have been certified by
the National Labor Relations Board as the exclusive representa-
tives of our employees.
We will not give effect to our contract dated March 25, 1946,
-with California State Council of Cannery Unions, A. F. of L., and
Cannery Workers Union, Local 22382, A. F. of L., or to any super-
seding contract with those labor organizations or any other labor
organization or affiliate thereof, unless and until said organiza-
tion or organizations shall have been certified by the National
Labor Relations Board as the exclusive representatives of our
employees.
We will not discourage membership in Food, Tobacco, Agri-
cultural and Allied Workers Union of America, C. I. 0., or en-
courage or discourage membership in any other labor organiza-
tion of our employees, by discharging or refusing to reinstate any
of our employees, or in any other manner discriminating in
regard to their hire or tenure of employment or any term or con-
dition of employment.
We will not in any like or related manner interfere with, re-
strain, or coerce our employees in-tine exercise of the right to self-
organization, to form labor organizations, to jour or assist Food,
Tobacco, Agricultural and Allied Workers Union of America,
C. I. 0., or any other labor organization, 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. All our employees are free to become or remain members of
Food, Tobacco, Agricultural and Allied Workers Union of Amer-
ica, C. I. 0., or any other labor organization. We will not dis-
criminate in regard to the hire or tenure of employment or any
term or condition of employment of any employee because of his
membership in or activity on behalf of any such labor organization.
G. W. HuME COMrANY,
F, mployer.
Dated ---------------- By --------------- ------------------
(1tepie.,entative ) ( Title)
NOTE : Any of the above-named employees presently serving in the
armed forces of the United States will be offered full reinstatement
upon application'in accordance with the Selective Service Act after
discharge from the armed forces.
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
C. W. HuME COMPANY
INTERMEDIATE REPORT
539
Mr John Paul Jeinir.gs, for the Board
Messrs Paul St Sicre and James 1i Agee, of Oakland, Calif., for the respondents.
Messrs Gladstean, Andersen, Resner. Suwiiei, & Edcses, by Mi Be? ti ama, Edises,
of Oakland, Calif., for CIO.
Messrs Tobriner d Lazarus. by Mr. Mathew 0. Tobriner, of San Francisco,
Calif, for AFL.
STATEMENT OF THE CASE
Upon a fourth amended charge duly filed on March 26, 1946, by Food, Tobacco,
Agricultural & Allied Workers Union of America, affiliated with the Congress of
Industrial Organizations, herein called CIO, the National Labor Relations Board,
herein called the Board, by the Regional Director for the Twentieth Region (San
Francisco, California), issued its complaint on March 27, 1946, against G. W,
Hume Company, Turlock, California, herein called Hume, and against California
Processors & Growers, Inc, herein called the Association, alleging that Hume and
the Association, collectively referred to herein as the respondents, had engaged
in and are engaging in unfair labor practices affecting commerce within the
meaning of Section 8 (1) and (3) of the National Labor Relations Act, 49 Stat.
449, herein called the Act. Copies of the complaint and the fourth amended
charge, accompanied by notice of hearing thereon, were duly served upon CIO,
upon each of the respondents, and upon two affiliates of the American Federation
of Labor, naively the International Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of Ainei ica, herein called Teamsters, and California State
Council of Cannery Unions, herein called the Council, designated in the complaint
as parties to the contract and collectively refereed to herein as AFL
With respect,to unfair labor practices the complaint alleged in substance that
the respondents- (1) since approximately August 1, 1945, interfered with, re-
strained, and coerced Hume's employees in the exercise of their rights as guaran-
teed in Section 7 of the Act by (a) urging, persuading, and warning the said
employees to refrain from becoming or remaining members of CIO, (b) demanding,
under threat of dismissal, that the said employees join and remain members of
AFL and pay dues, fees, and assessments to AFL, (c) granting to AFL representa-
tives access to.Hume's,plant while denying like privilege to representatives of CIO,
and (d) requiring the said employees, as a condition of employment, to obtain
clearance cards from AFL and to execute agreements for the check-off of AFL
dues; (2) discharged on or about November 21, 1945, 28 named Hume employees'
and discharged Harlie Frischneckt 2 and Clarence McVay on November 26, 1945
and December 7, 1945, respectively, because of their membership and activities in
behalf of CIO and their refusal to join and pay dues to AFL, that the said dis-
chaigoes were refused reinstatement for the same reasons for which they were
discharged, except that some of the dischargees were rehired on or about February
7, 1946. The complaint further alleged that a certain collective bargaining con-
tract entered into by Hume and AFL, on or about March 25, 1946, is illegal and
void because it was entered into by the parties thereto with the knowledge that
the question of representation of Hunie's employees was pending undetermined
before the Board.
The respondents duly filed a joint answer in which they admitted the allegations
of the complaint with respect to the nature, extent, and character of their respec-
tive businesses but denied the commission of the alleged unfair practices. The
answer also denied that at the time of the execution of the contract between Hume
' The naives of these persons are listed on Appendix "A," hereto annexed
z Also referred to in the record as Barley Cruikshank.
540 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and AFL, on or about 'March 25, 1946, there was pending undetermined before the
Board the question of representation concerning Hump's employees.
Pursuant to notice, a hearing on the complaint was held in Modesto, California,
on April 10 and 11, 1946, before the undersigned, Howard 'Myers, the Trial Ex-
aminer duly designated by the Chief Trial Examiner. The Board, the respondents,
CIO, and AFL, were represented by counsel and participated in the hearing. The
parties were afforded full opportunity to be heard, to examine and cross-examine
witnesses, and to introduce evidence pertinent to the issues. At the opening of
the hearing, counsel for AFL moved to dismiss the complauit in its entirety on
the grounds that (1) the proper forum to litigate the questions raised by the
complaint is the United States Circuit Court of Appeals for the Ninth Circuit, (2)
the Board, in its Supplemental Decision and Order of February 15, 1940, in
Matter of Bercut-Richaard,s Packing Company, et al, having, in effect, decided
that Hume and AFL could not lawfully enter into a new contract, has disqualified
itself from deciding this case, and (3) the complaint does not state a cause of
action. The motion was denied by the undersigned with permission to renew 3
AFL then filed an answer denying, in effect, that the respondents committed the
alleged unfair labor practices. At the conclusion of the taking of the evidence,
Board's counsel moved to conform the complaint to the proof, with respect to
minor matters, such as the correction of dates, misspelled words, and the like.
The motion was granted without objection. Oral argument, in which counsel for
all parties participated, was heard at the conclusion of the hearing and is part
of the record. The parties were granted leave to file briefs on or before April
16, 1946, with the undersigned. A brief has been received from counsel for AFL .4
Upon the record in the case and upon his observation of the witnesses, the
undersigned makes the following :
FINDINGS OF FACT
1. TIIE BUSINESSES Or TILE RESPONDENTS
G W Hume Company is a California corporation having its principal offices
and plant at Turlock, Califoinia, where it is engaged in canning and'processing
fruits and vegetables More than 62 percent of Huine's products, valued in
excess of $1,900,000 annually, is sold and shipped to customers located outside
the State of California.
California Processors & Growers, Inc, is a non-profit Califoinia corporation,
having its principal offices and place of business at San Frinicisco, Califoinia,
where it is engaged in, among other things, promoting friendly relations and
cooperation between its 61 members and their respective employee-,; in ascer-
taining and disseminating among its members facts relative to employer-em-
ployee relationship; in representing its mgmbeis as a group in collective
bargaining with their respective employees; and in advising and conferring with
its members relative to matters pertaining to their respective employees. Each
member of the Association sells and ships a substantial amount of its products
to points outside the State of California.
Each of the respondents concedes that is is engaged in commerce within the
meaning of the Act.
II TIIE ORGANIZATIONS INVOLVED
Food, Tobacco, Agricultural & Allied Workers Union of America, affiliated
with the Congress of Industrial Organizations, International Brotherhood of
I This motion was not renewed nor was any other motion to dismiss the complaint, of
any part thereof, made during the course of the hearing
"The time to file was extended to April 23, 1946. AFL's brief was received on April 29,
1946, but has nonetheless been given full consideration.
C. W. HUME COMPANY 541
Teamsters , Chauffeurs , Warehousemen and Helpers of America , affiliated with
the American Federation of Labor, California State Council of Cannery Unions
and its constituent unions, one of which is Local 22382 , affiliated with the
American Federation of Labor, are labor organizations admitting to inembei ship
employees of Hume and employees of the Association ' s other members
III. THE UNFAIR TABOR PRACTICES
1. The Master Agreement and the modification and amendments thereto
In the fall'of 1940, Cannery Workers Union Local 22382, a Federal Local
Union of the American Federation of Labor, commenced an organizational
drive among the employees of Hume, a member of Calitoinia Processors and
Gi ow ers, Inc , herein called the Association At about the same time , the em-
ployees of the other members of the Association , were being org .iized by Local
22382 or by some other Cannery Workers Union , similarly affiliated On or
about June 10. 1941 , an agreement , herein referred to as the 'Master Agreement,'
was executed by and between the Association , as collective bargaining iepre-
sentative for and on behalf of its members which included the respondent
Hume, and California State Council of Cannery Unions, herein called the Coun-
cil, as the collective bargaining representative for and on behalf of the various
Cannery Workers Unions. On or about J uly 3, 1941 , pursuant to a provision of
the Master Agreement, Flame executed an agreement with Local 22382 adopting
the M;tstei Agreement as applied to its operations The aforesaid Master
Agreement was amended on or about January 26. 1942, and again on or about
July 10. 1943 In the latter year the American Federation of Labor also became
a party to the contract, adopting and ratiiying all the terms and conditions of
the Master Agreement The Master Agreement , as last amended . was to con-
tinue to March 1, 1945, and thereafter from year to year unless either of the
patties informed the others , within a specified time, of its intention to modify
the said contract. No notice of intention to modify was served within the
specified time prior to March 1, 1945, and the Master Agreement was automati-
cally renewed to March 1, 1946
The section of the blaster Agi eei neat, as amended, which directly bears upon
the pertinent issues of this proceeding reads, in part , as tollows:
SecTioN 3 Preference of Employment and Hiring Practices.
(a) It is recognized that the refusal of Union members to work with non-
union employees who we within the jurisdiction of the local Union shall not
constitute a violation of this igi eenient, provided, however, that before any
strike action, job action on other dnect action is taken on this account,
the local Union will submit the matter for adjustment as prodidcd in Section
8 hereof' In order to and in the prompt adjustment of such matters, the
Union shall furgish its members with a clearance card, dues book or other
evidence of paid-up rireaibership, and ,when employees who al c on the seinortty
lusts, as defined in Section J he' col,' ate called to won k, the IJniplor/er will
request that such evidence be presented by those who have it , and wall keep a
b Also referied to in the record as the "green book agreement"
Section S establishes the grievance procedure and piovides for arbitration
Section 9 reads, in part as follows
Said [seniority ] list shall be based on the beginning date, as accurately as can be
determined , of continuous regular employment or consecutive seasonal employment, as
the case may be, as such employment is hereinattei defined. All employees covered b3
this agreement and referred to in Section 4 (a) hereof shall be named on said list
Section 4 ( a) states "all work peiformed in Employer' s canneries and storehouses,
warehouses , labeling rooms or in sheds or lots adjacent thereto , wheie commodities
or materials are processed or stored "
542 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
record, which. will be evadable to the Union, of all em.ployecs who do not
present such evidence Similarly the Union will from time to time, when such
information is available, notify the Employer of the names of delinquent or
suspended members, or other non-union employees, according to Union records.
The Employer shall be the sole judge of the qualifications of all its em-
ployees, subject to appeal as provided in Section 8 hereof, but in the selection
of new employees the Employer will give pi eference of employment to un-
employed members of the local union, pmovaded they have the necessary
qualifications and are available when new employees are to be leered "New
Employees," for the pica pose of this agreement. are defined -to be persons
who are not on the seneomrty list of the hiring plant, as defined in Section 9
hereof. even though they nary have been employed previously by said plant.
As a basis for preferential consideration as new employees as aforesaid,
unemployed members of the local union shall be required to present a clear-
ance card from the local union evidencing the fact of their paid-up member-
ship. [If such union membems are not available for such employment, the
Employer may hem e any pea son not a neemnber of the Union pm ovcded that such
person will be required to file an application for membership in the local
union before being put to work Upon filing such application lie shall receive
from the Union a written statement that he has made such application,
which statement shall be taken up by the Employer and returned to the
Union when the applicant is put to work It is thither understood that such
person must become a member of the local union within ten (10) days after
his employment, and that the local union will not reasonably refuse to accept
such person as a member ] 8 [Italics supplied.]
Subsection (b) of Section 3 provules for the mechanics of carrying out the
foregoing and requires the coati acting local union to have a representative
available in the plant to receive the applications from new employees. In this
subsection "the local union agrees to assume iesponsibitity for completing the
matter of subsequent affiliation by new workers as members of the Union "
On or about August 21, 11)44, Local 22382 and Iluine entered into the following
agreement
The Company hereby agrees to deduct from the pay of each employee
employed by the Company who is coveted by this agreement all Union dues
and assessments, and for this purpose the Union shall provide the Company,
on or before the flirt day of each month, the amount of dues payable per
mnouth to the Union by each member. Said dues shall be deducted from the
pay check of the employee on any payday that falls on the clay following
performance of three days work by the employees in any calendar month
The Company will promptly notify all employees of these conditions by
placing an appropriate statement thereof on the bulletin board ill the plant
of the Company.
If any new assessment shall be levied as against niernbcas of the Union
employed by the Company, such assessments nutst flu it be appm evicted (sic)
by the Union and notice themeof given to the Company before such assess-
ments can be deducted fmom- the salut y of the employees by the Company
Any sums deducted by the Company for the benefit of the Union in any
months shall be payable to the Secietaiy-Treasuiei of the Union on or before
the 25th day of the following month The Secietary'I'reasurer of the Union
IThe matter in brackets is a modification made on or about July 10, 1943, clue to the
then existing manpower shortage, to permit the cannelies to hire during the 1943 canning
season "emergency workers" who, howcA or, had to either file an application for membership
in the local union of the Council or obtain an "emergency card" therefrom before being
allowed to work.
G. W. HUME COMPANY 543
shall furnish an appropriate receipt to the Company upon receipt thereof.
The Company shall not be liable to the Union for any sums other than those
collected by the Company,
The Company and the Union shall work out a mutually satisfactory agree-
ment, by which the Company will furnish the Secretary-Treasurer of the
Union, monthly, a record of the dues, from whom the deductions have been
made, togetlier with the amount of such deductions [Italics supplied ]
In witness whereof we have hereunto set our hands and seals this 21st day
of August, 1944.
[SEAL]
GEORGE W HUME COMPANY,
By R. G IlUME. 1'residciat
CANNERY WORKERS' UNION # 22382,
R M ToMSON, Secretai y-Treasurer.
REFERENCE IS MADE TO "DUES, COLLECTION AND CHECK-OFF AGREEMENT" DATED THE
21ST DAY OF AUGUSr 1944
It is hereby mutually agreed and understood that this letter becomes a
part of the above mentioned Agreement for the purpose of fixing possible
expiration date of the Agreement by notification by either party on or before
March first of any year; the teiminetion of the Agieement to become effec-
tive if notice is filed by either party on or before 12 o'clock noon on the first
day of Match of any year.
GEORGE W. Hu1.IE COMPANY,
By 14 GFIuME
Accepted this 21st day of August, 1944.
[SEAL] CANNERY Wor cEas' UNION No 22382.
By R M ToMSON, Sccretar ij-Ti easui at.
In June 1945, the Association, the Council, and the American Federation of
Labor entered into a written agreement which bore the following legend :
The within memorandum of agreement contains the amendments to the
collective bargaining contract between California Processors and Growers,
Inc , and The American Federation of Labor and California State Council of
Cannery Unions, as negotiated during 1944 and as ordered by the National
War Labor Board in Case No. 111-7430--D This memorandum shall con-
stitute an inteinn memorandum modifying the amended contract executed
July 10, 1943 (originally adopted June 100, 1941), and the Supplementary
Emergency Agreement of the same date in 1943, for the purpose of setting
forth the understandings reached by the parties since March 1, 1944, and the
subsequent directive orders of the War Labor Board, pending the conclusion
of negotiations for the 1945 season, at which time it is contemplated that
the basic agreement will be repainted, with the following modifications
included:
This agreement provided, among other things, for the inclusion of a new sub-
section to Section 3 of the Master Agreement of June 10, 1941, as amended.
This new sub-section reads as follows :
3 (c) The Employer will deduct from their wages and turn over to the
proper officers of the union the initiation fees and union dues of such mem-
bers of the union as individually and voluntarily certify in writing that
they authorize such deductions Such authorization shall apply until or
unless it is revoked individually and voluntarily, in writing, by such union,
members
The Employer and the Union each agree that neither of them nor any of
then officers or members, or employees, will intimidate or coerce employees
717734-47-vol 71 36
544 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
into executing such certificates or causing them to be revoked. If any dis-
putes arise as to whether there has been any violation of this pledge, such
disputes shall be regarded as a grievance and submitted to the grievance pro-
cedure established by this agreement.
2. Attempts to induce the employees to clear through AFL
At or about the time of the execution of the 1945 agreement referred to in
the immediately preceding paragiaph, all the "regular" employees of Hume," being
some 20 or 30 in number, were assembled in the cannery during working hours
and were addressed, in the presence of Factory Superintendent Fordliain, by H C.
Torreano and L. B. Brown, representatives of Local 2382 Torreano and Brown
suggested that Local 22382 affiliate with the Teamsters The employees suggested
that a vote be taken of the membership i0 This suggestion was rejected by Tor-
Yeano and Brown who informed the employees that the question of affiliation
could not be voted. After a lengthy discussion the employees decided that they
did not desire to affiliate with Teamsters. Torreano and Brown then left the
cannery.
Later in June 1945, each "regular" employee of Hume handed to President R.
G. Hume his signed revocation of the dues check-off authorization previously
executed. Thereafter no dues were deducted by Hume from the pay of its
"regular" employees nor did these employees pay any dues thereafter to Local
22382 or to any affiliate of the American Federation of Labor.
In the early part of August 1945, just prior to the peach canning season, the
"regular" employees of Hume were notified by their respective foremen to
assemble in one of the check rooms" Besides Torreano, Brown, and Factory
Superintendent Fordham. the meeting was attended by seven or eight representa-
tives of Teamsters," Assistant Superintendent Gallaido, and F S. Clough, a field
iepiesentative of the Association According to the undenied and credible testi-
mony of Employee Irwin C. Heagle, Clough sought to induce the "regular" em-
ployees "to clear through the Teanisteis' Organization in order to keep the plant
operating in a peaceful manner" thioughout the coming peach canning season.
Hoagie further testified, without contradiction, and the undersigned finds, that,
in response to a question put to him, Clough stated that if these employees
cleared through the Teamsters they would not be compelled to execute dues
check-off authoiizations; and that, relying upon Clough's assurances, all the
"regular" employees of Hume signed the requested clearance slips at this
meeting. Those "regular" employees whose employment started after the execu-
tion of the Master Agreement, had cleared with Local 22382 when they were
9 At the time of this incident, the Hume Cannery was not in production and hence only
"regular" employees as distinguished fiom "seasonal" employees were working in the plant
The names of the above referred to "regular" employees appear on Hume's seniority list.
10 Local 22382 admits to membership employees of other canneries in the vicinity of
Hume's
11 At the time of this meeting, only "regular" employees were working in the cannery
12 The record does not disclose the means whereby Teamsters became injected into the
picture as representative of the employees other than that in May or June 1945, President
Green of the AFL "ordered" Local 22382 to affiliate with Teamsters There is no evidence
of a merger of Teamsters and Local 22382, either by consolidation, absorption, or other-
wise In August 1945, however, Teamsteis appears to have taken control for all practical
purposes and to be the group with whom Hume was dealing This question is not material,
lioriover, to a determination of the present issues and for the purposes of this report, the
.term AFL will be applied generally to such organizations here involved which are affiliated
with the American Federation of Labor without attempting to distinguish between them
as "Cannery workers" or Teamsters, except when such distinction may be required by the
matter then under discussion.
G. W. HUMP COMPANY 545
originally hired as "new employees"; and since then, as employees on the
seniority list, no further clearance had been required of them either under the
Master Agreement or by custom, for recur ring seasons.
On August 8, 1945, the first day of the peach canning season, Heagle, who had
been the chairman of the shop committee for Local 22382, complained to Fordham
that all the seasonal employees were being "double crossed" because they were
forced to execute dues check-off authorizations before they could obtain clearance
slips IIeagle's protest was of no avail since General Superintendent Birchall
continued to insist that all the seasonal employees, some of whom had worked
for Hume for a great many years and obviously were on the seniority list, "clear
with the union" before they could be put to work, notwithstanding that he knew
Local 22382 was refusing to issue clearance slips until the employees should
execute a check-off authorization reading as follows:
AUTHORIZATION FOR DEDUCTION OF UNION INITIATION FEES AND UNION DUES
I, ------------------------------, a member of Cannery Workers Union
A. F. of L, and an employee of ----------------------------------
-------------------- at ------,--------------, do hereby individually and
voluntarily certify that I authorize, by this writing, the above named Coin-
pany to deduct from my wages, and turn over to the Treasurer of Cannery
Workers Union of .. A. F of L., any and all union initiation fees and dues
certified by said Union to said employer now or hereafter to be due from or
payable by me to said Union This authorization is signed by me under the
provisions of Section 3 (c) of the collective bargaining agreement between
California Processors and Growers, Inc, and the American Federation of
Labor and California State Council of Cannery Unions, and shall continue
in force until or unless it is revoked individually and voluntarily by me, in
writing
Between August 8 and 13, approximately 150 of the 400 people then in Hunic's
employ executed and personally delivered to President Hume signed revoca-
tions of the dues check-off authorizations which they had been compelled to exe-
cute before clearance slips were issued to them.
3 CIO organizes the employees. Events leading up to the November 20, 1945,
discharges
During the latter part of August 1945, CIO commenced an organizational drive
among Humne's employees For some weeks previous, organizational drives were
being conducted by CIO and another labor organization among the employees of
other meinheis of the Association as well as those of non-members Numerous
petitions had been filed by these 2 labor organizations with the Board seeking
certification of representatives of the employees in the various canneries The
Maid, by appropriate order, consolidated these petitions and held hearing there-
on on various days between July 3, and September 11, 1945" On October 12,
194.x,n the Board issued its Direction of Election and Order wherein it directed
that an election by secret ballot be conducted under the auspices of the Regional
Director for the Twentieth Region among the employees of all the members of the
Association and certain non-members. In this order the Board found that the
is This proceeding is entitled Hatter of Rercut-Richards Packing Company, et al API,
was a party to this proceeding and participated therein by counsel
19 On October 5, 1945, the Board issued a telegraphic decision subject to confirmation by
a written opinion, which was issued on October 12, 1945.
546 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employees, with the customary exceptions, of all members of the Association, in-
cluding the respondent Hume. constituted an appropriate unit.
Between October 11 to October 18, 1945, elections were held at the various
c:uuieiies" The election at Hume was conducted on October 17. Thereafter
objections to the conduct of the elections wei e filed by AFL, and on the basis of
such objections, the Board on February 15, 1940, issued its Supplemental Deci-
sion and Order setting aside the elections "
General Manager Birchall testified, and the undersigned finds, that shortly
after the 150 employees had handed President Hume their revocations of check-
off authorizations, copies of which were sent to Local 22352. Brown and another
Local 22382 representative sought to persuade the signers of the revocations to
cancel them, but they refused to do so; that no dues were deducted from the
pay of the signers of the revocations after their receipt by Hume, that early in
November 1945, at the beginning of the fall spinach canning season. Local 22382
demanded that Hume "lay off or fail to employ all those who would not clear"
through Local 22382: that on receipt of this demand, Brown, the representative
of Local 22382 and President Hume placed a telephone call to the Association to
check the legality of the request. that the conversation was between President
Hume and Clough: that Clough advised President Hume that the company had
no right to discharge workers for their refusal to "sign up" with the union, that
President Hume conveyed this information to Local 229S2 and refused its de-
mand, that on November 19, the Teamsters Union refused to allow L. J. Swan-
son Co, an independent truck contractor, to deliver spinach to the II ine cannery ;
that Torreano informed President Hume. who arrived at the cannery at about 11
o'clock that night, "the spinach deliveries would be stopped until certain em-
ployees were discharged" ; that on the following day, November 20, the employees
could not work because AFL had placed a picket line around the cannery and
refused to allow any truck to enter.
On the moaning of November 20, a iepiesentative of Local 22352 telephoned
President Hume and gave him a list of 28 persons whose discharge Local 22382
was demanding on the ground that they had not paid their dues and had been
suspended The telephone call was followed by a letter which was handed to
President Hume later in the day. Upon receiving this demand, Hume assembled
the "regular" employees, explained the situation, had the list of names read
aloud by Ileagle, and told those whose names had been read that they were ]aid
off until the matter could be straightened out" Following this action, AFL
'5 Except that an election at one of the canneries was held on December 20, 1945
10 The tally of the votes at the elections of the employees of the Association 's members
show
Approximate number of eligible voters--------------------------- 23, 545
'valid votes counted------------------------------------------- 10,968
Votes cast for California State Council of Cannery Unions, A. F of L_ 4, 701
Votes cast for F T. A.-C. I O________________________________ 6, 067
Votes cast for Cannery and Food Process Workers Council of the
Pacific Coast,Independent ----------------------------------- 110
Votes cast against participating labor organizations-------------- 90
Challenged ballots-------------------------------------------- 1,291
Void ballots ------------------------------------------------- 248
r7 The "regulars" who were thus laid off included , A E Berry, Ernest G Bishop, Vider
Biorlrlund, Jasper J Bobb, Harold Dillard, William J Ely, Clyde Faddis, H F Frazier.
Ilarlic Frischkneckt, Irwin C Ileagle, Oscar Johnson, T Boyd McKamey, Archie Miller,
A E. Moore., Harry E Pierson, Abe Thiessen, Neal Watts, R B. White, all of whose names
are listed as "regulars" on Appendix B, hereto annexed While Moore's name was not in
the letter, it was one of those originally given Huine over the telephone The omission,
which was unintentional, was subsequently corrected on November 20, by telephone.
G. W. HUME COMPANY 547
lifted the picket line and allowed spinach to be delivered to the cannery '8 There-
upon the operation of the cannery continued not mal until the end of the spinach
canning season on or about January 5, 1946
4 The November 20 and 21, 1945, discharges
On the morning of November 21, AFL blocked the entrances to the cannery
and permitted no male employee, except ex-service men, to enter who was unable
to exhibit a current clearance slip Those who were barred included not only
the group of "regulars" who had been "laid oil" the previous day, but also soma
seasonal employees who were on the seniority list These excluded employees
attempted to force the picket line A scuffle ensued and after it had been stopped
by the watchman. Factory Superintendent I ordhani was sent for.
Dleanwhile, the women employees and the ex-service men who had been per-
nutted to pass through the picket line without exhibiting clearance slips were
being canvassed within the cannery by Assistant Superintendent Gallardo as to
whether they were members in good standing in Local 22382 Those who were
not were told they could not work until they had cleared with Local 22382 and
were sent off the job These reached the outside while Fordham was addressing
the men who had been excluded and were in the group as Fordham told the group
that they could not woik there, and ordered them off the premises n
rs By this time, the contest between AFL and CIO for representation of the employees of
the members of the Association had reached a high pitch The following letter, dated ATo-
rember 20, 1945, from the Association to the Council not only illustrates this, but also sets
out with cluity, the position of the Association on the subject of discharges of employees
for failure to maintain membership in good standing in their local union
This will acknowledge receipt of your letter of November 17; 1945 concerning a
bulletin alleged to have been issued by Local 82 PTA-CIO, and quoted by you as
follows
"We have reached an agreement with the California Processors and Growers and
that no one has to pay dues to the APL to work in the canneries Every FTA-CIO
member should immediately sign a revocation slip and start paying dues to Local 82,
PTA-CIO "
Replying to your demand for "an official statement . . as to whether or not any
understanding or agreement had been reached between the FTA-CIO and the Cali-
fornia Processors and Growers," the following is our response
1. California Processors and Growers, Inc has reached no agreement with PTA-
CIO that "no one has to pay dues to the AFL to work in the canneries "
In discussions with representatives of FTA-CIO, we have reiterated our position
that the existing collective bargaining agreement will be observed by California Proces-
sors and Growers, Inc. Since these discussions, we have received a telegram from
Edgar Warren, Director of Conciliation Service, U S. Department of Labor at Wash-
ington, D. C , advising us that the contract with the APL remains "in force and effect
until -March 1, 1946."
2 California Processors and Growers, Inc has advised representatives of PTA-
CIO that new employees are required to affiliate with the AFL as a condition of em-
plo inent, and that canneries are required to supply the APL unions with lists of all
employees who fail to present evidence of AFL union membership.
In discussions with representatives of PTA-CIO, we have outlined the procedures
followed under the contract, and have advised them that despite the fact that we are
not obligated by contract to discharge employees for failure to maintain union mem-
hership, nevertheless, all disputes arising in this connection are required to be sub-
mitted to the Central Adjustment Board, under the contract, for final determination.
We have in no wise changed our position concerning payment or nonpayment of clues,
nor have we reached any agreement with FTA-CIO concerning revocation slips, which
are controlled by the 1945 W. L B Directive Order.
A copy of this communication is being sent to the officials of FTA-CIO.
in Fordham denied that he told the group that they were discharged, as testified to by
several hoard witnesses He testified that lie "told them to get off the property . . until
they had cleared with the union" The undersigned finds that the employees listed in
Appendices B and C, hereto annexed, were in fact discharged at that time.
548 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Pursuant to Fordham's orders, all those piesent, both the "regular" eniplo.Nees
and those seasonal workers 10 on the seuiotity list whose names make up Appendix
C, hei eto annexed, left Hume's pieimses and were not rehired by Hume until early
in 1946, as is hereinafter set out. Although the "seniority list" was not intro-
duced in evidence, it is found that each of the persons "laid off" on November 20,
1945, and those seasonal employees who were discharged on November 21. 1945,
whose names are listed on Appendices B and C, hereto attached, were employees
coming within the Master Agreement's description of employees on the seniority
list
5. The discharge of Harlie Frischkneckt
On November 20, 1945, Hume discharged Harlie Frischkneckt under the follow-
ing circumstances :
In April 1945, following his discharge from the Armed Forces, Frischkneckt
was hired by Hume as a "new" employee and given "regular" employment in
the warehouse At the time of his employment, Frischkneckt complied with the
requirements of the Master Agreement by making application for meniheiship in
Local 22382, and received the clearance slip that was necessary to enable him to
begin work with Hume In August 1945, warehouse Superintendent Granberg,
told Frischkneckt and the other warehouse employees that they would have to
obtain new clearance slips "through the AFL in order to work" and sent then
to an AFL iepresentative in the vicinity of the pay-roll office who, he said, would
sign them up. Frischkneckt went as directed and told the AFL representative
that he did not want to "get nixed up with the Teamsters." Nonetheless, the
representative insisted that Frischkneekt not only sign a clearance slip but that
he execute the check-off authorization heretofore referred to Frischkneckt did
as rgquired and returned to work Later in the day, he executed and delivered
to Hume a revocation of the check-off authorization.
In its records, Local 22382 appears to have erroneously entered Frischkneckt's
name as Harley Cruikshank, for in its letter of November 20 to Hume demanding
the dismissal of the warehouse crew, it omitted the name "Harlie Frischkneckt'
but included the name "Harley Cruikshank," although there was no person of
that name employed by Hume. On receipt of this letter from Local 22382. the
warehousemen were assembled and told that they would be laid off The con-
fusion of names led to some inquiry by Frischkneckt as to whether he was in-
cluded He was told that his name was not on the list but had his attention
called to the "Cruickshank" name. Actually Frischkneckt had paid no dues,
was a part of the delinquent group, and was unable to understand why,his name
should be omitted. He joined the others when they left the cannery pursuant to
the group lay-off above described.
On November 21, the group arrived at the cannery at about 8 in the morning
and attempted to go through the picket line The scuffle heretofore referred to
took place, following which Fordham appeared, told the group, including Frisch-
kneckt, that they could not work there and ordered them away.
The following Monday, November 26, Frischkneckt again went to the plant
where lie inquired of Birchall as to whether his name was on the list After
20 The seasonal workers who were thus discharged on November 21, 1945, included Clemie
Robinson , Monroe Robinson , Thomas L Broll , Ruth Waite, Agnes Hopkins , Myrtle Brown,
Genevieve Alsup, Marguerite Watts, Chfiord C Luther, R. E Itearick, all of whose names
are listed as seasonal employees on Appendix C hereto annexed The name of John M
Smith, a seasonal employee listed in the complaint , has been omitted from Appendix C and
no finding is made with respect to his discharge since the record contains no evidence upon
which to base a finding as to his status on November 21, 1945 , or thereafter Smith did not
appear at the hearing Accordingly , the undersigned will recommend that the complaint
as to him be dismissed without prejudice
G. W. HUME COMPANY 549
consulting the list, Birchall told him he was not on the list and sent him in to
work He worked about 4 hours. He testified that then-
the AFL man came around and wanted to know if I was going to go up before
a board and pay my back dues, and everything, and I talked with him there
quite a while, and lie said he would vouch for me it I wanted to go into the
AFL, and I told him I would think it over, and when noon come I got to
thinking about it, and I found out we would have to pay dues'to the AFL,
so I just left and never reported back to work anymore, because I did not
figure on paying AFL dues.
Frischkneckt was in the same position as were all the others in the warehouse
group Only the circumstance of the error in names excluded him from being
included in the group listed on Appendix B, hereto annexed He realized this
He had joined the CIO some months before mud knew he was in default of dues
in AFL The discharge of November 20 and the confirmatory action by Fordham
on November 21 was notice to him of the intent to include him when the name
Cruikshank was eironeously used. His conversation with the AFL representative
on November 26 was lurtlier notice that it was through 'error that lie had been
permitted to return to work on that day. When he left the job, it was with the
appearance of having (]one so voluntarily. Actually, however, there was nothing
voluntary about it. His termination actually took place on November 20, and
it is so found, but whether the 20th or 26th, it was, impelled by Plume's conduct
toward the group and the knowledge, based on that experience, that his refusal
to reinstate himself with AFL would result in his dismissal. Under such circum-
st<,nces, Frischkneckt's termination is found to be a discharge attributed to
Hume's conduct, based on Frischkneckt's refusal to maintain membership in good
standing in AFL. This finding is buttressed by Frischkneckt's undenied and
credited testimony that shortly after November 26, he was told by Supervisor
Orville Hopkins that lie would not be able to work unless he "would sign up with
the AFL "
6 The discharge of Clarence McVay
Clarence MeVay, a seasonal employee, was discharged by Hume on December
7,10,45j, for failure to maintain his membership in Local 22382 When McVay was
first hired by Hume sometime in 1945, he received a clearance from Local 22382,
obviously after he had made application for membership in that organization,
and at the same time executed a dues check-off authorization. However, he
revoked the check-off authorization soon after its execution and never paid any
dues to Local 22382. On December 7, 1945, a representative of Local 22382 came
to the cannery and told McVay, in the presence of his foreman, that if he (lid not
pay his union dues lie could not work When McVay refused, his foreman, at
the request of the representatives of Local 22382, took McVay's time card,
punched it out on the clock, and handed it to McVay McVay then placed the
card in the box where punched cards are usually placed and left the cannery.
The undersigned finds that McVay was discharged by Hume on December 7,
1945, because of his failure to pay dues to a labor organization.
7. Hume's attitude toward compulsory maintenance of membership
From the time the Hume employees revoked their dues check-off authorizations
in June 1945, Hume endeavored to induce its employees to comply with AFL
demands and pay dues to the AFL These efforts were made, as Birchall and
President Hume admitted at the hearing, for the purpose of maintaining har-
monious relations with Local 22382 and to induce the Teamsters to permit spinach
and other products to be shipped in and out of the Hume cannery Hume's
550 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
actions appear to have been based on an erroneous understanding of the Master
Agreement, but this was clarified in November before any of the discharges
herein discussed took place As a result of advice Hume received concerning the
provisions of the Master Agreement it refused the demands of AFL to discharge
any employee for failure to maintain good standing nrembeiship in Local 22382
However, as a result of the AFL pressure it capitulated as found above. This
finding is buttressed by the credible testimony of Birchall who testified as follows :
At that time of the fall spinach signup, the management, 11 G Hume,
was told by the union representatives, Brown and Evans .. to lay off those
workers who refused to sign up These included full time workers who had
been working all year Whereupon Brown and Hume priced it call to the
C P & G" to check the legality of the union's request A conversation be-
tween Hume and Clough Clough advised that the company had no right to
discharge workers for their refusal to sign with the union The com-
pany conveyed this information to the Union The company conveyed
this information to the union, and acted accordingly Belore checking with
the C P & G, the company was under the impiession that the woikeis had
to sign up in of der to stay on the ,lob, n nd those workers who were hired
were so informed This position was reversed and clarified upon receipt of
the C. P & G.'s advice. No workers were discharged at this time because of
their failure to sign up.
8. Reinstatement in 1946
On February 7. 1946 , Flume rehired some of the regular employees it had laid
off on November 20, 1945 Others were rehired from time to time thereafter =2
These persons were relined and were in Hume's employ at the time of the hearing,
despite the fact that they had not paid clues to Local 22382 since June 1945, and
obviously had not presented any clearance credentials.
On February 8, 19-16 , a special meeting of the Central Adjustineiit Board-' was
held. According to the minutes of that meeting the following ensued:
Chairman Pankey presented the complaint involving the G W Hume Co.
dated February 4, 1946, as follows
Nature of Complaint:
"The G W Flume Company has mailed letters to appioxiniately twenty-
five ex-members of Local Union #22352 who were not in good standing
,.The letters mentioned above advise and request that these ex-members
return to work at the Hume plant on Thursday, February 7, 19-10"
Mr. St Sure described the various discussions held in the recent past con-
cerning the application of Section 3 (a) of the agreement , stating that these
=i C P & G is referred to herein as the, Association.
21 While the record is clear that some of the group who were discharged on November 20,
1945, were subsequently se-employed by Hume for portions of the canning seasons, it does
not reflect with definiteness all of those who were so rehired nor the length of their respec-
tive employment after being rehired. For this reason no specific finding is made as to the
extent of re-employment by Hume of any of those who are here involved, except as to
Clarence McVay and John M Smith, seasonal employees on the seinouty list, neither of
whom was ieliired by Hume in any capacity, and Oscar Johnson, a "regular" employee
who entered the Aimed Services sometime after November 20, 1945, and was still in the
services at the time of the hearing herein
e3 The Master Agreement provides for a Central Adjustment Board, composed of an equal
number of representatives of the Association and of the Council, to adjust grievances which
cannot be satisfactorily adjusted by the individual member. The agreement further pro-
vides that the decisions of the hoard shall be final and binding upon the parties concerned,
unless there is a deadlock among the members of the board, then, in that event, an outside
person, mutually satisfactory , shall be called upon to make the final decision.
0
G. W. HUME COMPANY 551
discussions have resulted in no common agreement between union and
employer representatives concerning the interpietation of Section 3 (a) of
the contract
Mr St. Sure described the question at issue in this case as follows:
"Whether the G W. Hume Co , a member of California Processors and
Growers, Inc , in accordance with the terms of the collective bargaining
agreement between California Processors and Growers, Inc and California
State Council of Cannery Unions, and/or the agreement between G W.
Hume Co and Local Union 22382. and/or the past practices of the union
and the plant management, is required to maintain a union shop "
It was moved by Mr Elorduy. seconded by Mr Rizzo. that the G W Hume
Company be required to maintain a union shop in accordance with the above
considerations which comprise the issue
The following were designated as voting members :
Ted Lopez A. 'VV Ford
Harry Rizzo Ralph Wanzer
hike Elorduy A. I. Walters
Rose Sanders Sam Kai Kee
A secret ballot resulted in a four to four vote whereupon the Board
ordered the case transmitted to an arbitrator for decision.
Following discussion upon the choice of an arbitrator, it was mutually
agreed by all parties that the U. S. Conciliation Service would be requested
to appoint a permanent staff member of that Service as arbitrator and the
secretaries of California State Council of Cannery Unions and of California
Processors and Growers, Inc, were directed to prepare and transmit the
Stipulation to Arbitrate.
The same day, the following "Stipulation to Arbitrate" was entered into by
the Association and the Council :
It is hereby agreed by the parties listed below that the issues described
below shall be heard by an arbitrator to be named by the Director of the U. S.
Conciliation Service, Department of Labor, said arbitrator to be a member
of the permanent staff of the U S Conciliation Service.
The issues to be determined are as follows :
Whether the G W Hume Co, a member of California Processors and
Growers, Inc , in accordance with the terms of the collective bargaining
agreement between California Processors and Growers, Inc and California
State Council of Cannery Unions, and/or the agreement between G W Hume
Co and Local Union 22382, and/or the past practices of the union and the
plant management, is required to maintain a union shop.
The decision of the arbitrator shall be final and binding upon the parties.
No price issue is involved.
By-letter dated April 3, 1946, George Cheney, the arbiter designated by the
United States Conciliation Service of the United States Department of Labor
confirmed the oral statement he had made to counsel for the Association several
weeks prior thereto that he would not serve as arbitrator in the matter. At the
time of the hearing no other arbitrator had been appointed and nothing further
had been done in the matter
9. Vacation .of Election Results
On February 15, 1946, the Board issued a Supplemental Decision and Order
in the "Bercut-Richai ds" matter wherein the Board, one member dissenting,
ordered the elections which had been held pursuant to its Direction of Election
552 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in that consolidated case, vacated and set aside. The majority decision of the
Board reads, in part, as follows :
Upon consideration of all the foregoing facts, we are of the opinion that
the elections were not, under the circumstances here presented, attended
by such procedural safeguards or certainty concerning eligibility as to con-
stitute a proper foundation for a Board certification in an industry which
had been the scene of such bitter strife. There is substantial doubt whether
the results are truly representative of the desires of the employees who
should have been eligible to vote therein. (See Matter of Kennecott Copper
Corporation, 55 N. L. R B 929. See also, Matter of Mobile Steamship Com-
pany, 11 N. L. R. B. 374.) It is of vital importance to the Board's effectuation
of the policies of the Act that the integrity of its procedures be maintained
at all times and at all cost, and that the regularity of the conduct of its
elections be above reproach. In this view of the matter, it is relatively
unimportant that there is no sure proof that one party to the election was
prejudiced more than the other.
We therefore are constrained to conclude that the balloting was not
conducted in accordance with our usual standaids or under conditions tend-
ing to create confidence in the result or to lay the foundation for satisfactory
bargaining. We ate of the opinion, therefore, that the purposes of the
Act will best be served by setting aside all of the elections held herein.
While we view the record as requiring this result, we reach it with
considerable icluctance because it means that the employees will have no
bargaining representative to negotiate in exclusive collective agreement
to cover the coming season, until a new election can be held which may
result in one of the rival unions being certified The current APL contract
will expire on March 1, and since the legal effect of the foregoing determi-
nation is to keep the question of representation pending before the Board,
none of the unions is entitled to an exclusive status as the bargaining agent
after that date. In accordance with well-established principles (see Met-
west Ptping & Supply Co lite, 63 N. L R. B. 1060. See also Matter of
Ken-Rad Tube & Lamp Corp , 62 N L R. B 21), the employers may not,
pending a new election, give preferential treatment to any of the labor
organizations involved, although they may recognize each one as the rep-
resentative of its members. In this state of the record, no legal effect
may be given the closed-shop provision contained in the current collective
agreements after their expiration date; (moreover, no requests for dis-
charges resulting from activity in the election are justified even under the
present agreement See Matter of Rutland Court Ouniems, 44 N L R. B.
587, 46 N. L. R. B 1040) the inclusion of any such provision in any new
agreements, or action pursuant thereto, would clearly be contrary to the
proviso in Subsection 8 (3). Nothing in our decision, however, should
be construed as requiring any change in the substantive conditions of em-
ployment now existing by virtue of the foregoing agreements
In order to expedite final disposition of the case, the Board will conduct
new elections as soon as eligibility lists can be prepared which meet the
objections discussed herein. Upon appropriate motion, the Board will
explore the possibility of holding the election at an early date by use of
snail ballots as ii ell as by the manual method, provided the feasibility
of this procedure, with adequate safeguards, can be demonstrated by the
submission of data not incorporated in the present record. As an alterna-
tive, the Board will consider holding a new manual election as early in the
1946 season as there is substantial reemployment.
ii
G. W. HUME COMPANY 553
In setting aside these elections, we are aware of the fact that the pro-
cedural defect arising from the absence of a master eligibility list is not
applicable to the elections held among employees of the independent Com-
panies However, the other defects based on uncertainty concerning the
meaning of 25-day eligibility rule and the action taken respecting employees
"temporarily laid off," are just as applicable to these elections as they are
to the elections held among the employees in the C P & G unit. We are of
the opinion that by-reason of these difficulties, the elections conducted among
employees of the Independent Companies raise such a possibility of error
that such elections should also be vacated and set aside. As a practical
matter, this will be in harmony with our ruling regarding the elections
in the C P & G unit and will avoid inconsistent disposition of the problems
of the cannery industry.
Sometime prior to March 1, 1946 but after the issuance, and the receipt of
copies thereof by the parties thereto, of the afore-mentioned Supplemental De-
cision of the Board, AFL served a demand upon the Association for a contract
to replace the Master Agreement, which after the service of the said demand,
was to terminate by its own terms on March 1, 1946 In its demand AFL stated,
among other things, that it wanted "a contract on behalf of our organization
that continues to give us exclusive bargaining rights and that affords us a
Union shop."
On or about March 25, 1946, the following agreement was entered into :
This Memorandum of Agreement, made and entered into this 25th day
of March, 1946, by and between G W Hume Co., located at Turlock, Cali-
fornia, hereinafter referred to as Employer, California State Council of
Cannery Unions, A. F. of L., and Cannery Workers' Union, Local 22382,
International Brotherhood of Teamsters, Chauffeurs, Warehousemen and
Helpers, A F. of L, hereinafter referred to as Union,
Witnesseth : That in consideration of the premises it is mutually agreed
as follows:
1. It shall be a condition of employment with the employer that all
employees covered by this agreement shall become and remain members
of the Union in good standing. Present employees who are not as of the
date of this agreement members of the Union must become members within
ten (10) days from the date hereof. Any new employee shall be required
within ten (10) days of the date of hiring to become a member of the
Union and thereafter remain a member in good standing.
Persons who fail to maintain good standing in the Union in accordance
with the By-Laws thereof shall be discharged within thirty-six (36) hours
after the company is so notified by the Union.
In the hiring of additional employees, the employer shall give preference
to unemployed members of the local Union provided such individuals have
the necessary qualifications and are available within forty-eight (48)
hours after being notified. As a basis for preferential consideration un-
employed members of the local Union shall be required to present a clear-
ance card from the local Union, evidencing the fact of their paid-up
membership.
2. Any adjustment in wages, hours or conditions, which may hereafter
be agreed upon by the parties, shall be effective as of March 1, 1946 and
retroactive to that date
The record shows that the parties to the foregoing contract intended it to
he an agreement of indefinite duration, incorporating all the terms of the Master
Agreement which were not inconsistent with the March 25, 1946, contract. In
554 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
short, the parties intended it to be a new over-all agreement providing for a
closed-shop plus the pertinent provisions of the Master Agreement.
In addition to all the foregoing, it is to be noted that after March 1, 1946,
Hume admittedly permitted representatives of Local 22382 free access to the
cannery for the purposes of collecting dues and soliciting membership but at
thesame time denied like privileges to representatives of CIO.
Analysis and conclusions concerning events prior to March 25, 1946
1. The discharges under the Master Agreement
There is no dispute as to the foregoing facts. The issue, as it arises from them
turns on the questions whether, as a condition of continuous employment, (1)
all employees on the seniority list, which included the "regular" and seasonal
employees here involved, were required to become members of Local 22382 and
(2) whether employees, once having taken out membership in the Union, were
thereafter required to maintain such membership in good standing.'
Both of these questions must be resolved in the negative. The Master Agree-
ment clearly exempts employees on the seniority list from being required to ob-
tain clearance slips as a condition for going to work from season to season
and is wholly 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 provision in the Master Agreement
that requires an employee who had joined a local union, to maintain his mem-.
bership in good standing, as a condition of employment. The sole requirement
that the 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 em-
ployer's responsibility 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 his 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 Master Agreement is no more than a preferential hiring contract.'
The employees here involved were discharged at the instance of Local 22382
because of their failure and refusal to pay dues to that organization and to ob-
tain from it clearance slips, obtainable only by those in good financial standing.
All of them were either "regular" year round employees or seasonal employees
on the seniority list. None were required, under the clear terms of the Master
Agreement, to carry or exhibit evidence of being in good standing in the local
union. Those who had been members of Local 22382 had elected to abandon it.
24 The record indicates, although it does not clearly reflect, that all-the discharged em-
ployees here involved had been members of Local 22382 up to June 1945, when they
abandoned their membership.
"The status of the contract of March 25 , 1946, is separately discussed below.
G. W. HUME COMPANY 555
That was their right in the absence of a contractual obligation to maintain their
membership
The Master Agreement, to be sure, recognizes the right of union members to
refuse to work with non-union employees and provides that such a refusal shall
not constitute a breach of the agreement AFL contends that this provision is
tantamount to it requirement that every employee must maintain membership in
'good standing in the appropriate local union as a condition of employment.
Even if such reasoning were sound, which it is not, the right is not absolute under
the terms of the agreement. The right may not be exercised until the matter has
been submitted to the grievance procedure of Section S of the Master Agreement
and has ultimately been disposed of, either by the Central Adjustment Board or
by a named tibitrafor. In any eNeit, the Agreement sustains no such interpre-
tation as that proposed by AFL The contention is therefore wihout merit
In this situation. it may be said that AFL was relying on that provision in
picketing Hume 's cannery and permitting no one to work therein without a
clearance slip, but such reliance was wholly contrary to the terms of the agree-
ment. AFL usurped the grievance procedure of Section 8, by its insistence that
the employment, of the persons here involved be terminated for While and re-
fusal to maintain membership in good standing in Local 22382. The Master
Agreement lends no justification for the discharges here involved The sole
reason for the dischai ges was the refusal of the employees to comply with Hume's
demand that they join or reinstate themselves in Local 22382 and thereafter re-
main in good financial standing, which position was brought about through
AFL's threat of economic hardships to Flume if the employees did not comply.
In its brief, AFL appears to stress the compulsory check- off agreement entered
into with Hume in August 1944, as a closed-shop agreement. This contention is
without merit and it is not supported by the record The agreement clearly was
intended as a supplement to the Master Agreement If it had any force as a
closed-shop provision, it was completely abrogated by the memorandum of June
1945, amending the Master Agreement which was made pursuant to a directive of
the -National War Labors Board, which provided for Voiuirtany check-offs revo-
cable at will Moreovei, by its language, the August 1044 agreement contains
no provision that can be construed to compel ei,ery employee to be and remain a
member in good standing in Local 22382 The agreement clearly applied only to
the nienibcrs of that organization and at most imposes an obligation on Hume to
make deductions from the pay of union niembe's and tin n it over to Local 22382.
It Hume failed to do this, the question was between Hume and Local 22332.
Hume's failure ,still could not impose an obligation on a member to pay his dues
The agreement is also silent on the proposition that the employees must icuiain
in good standing in Local 22.;82 as a condition of employment. In short, the
agreement has no hearing on the issues here
It has been found that no contractual relationship required the discharges.
The discharges were brought about through coercion of Hume by AFL Dis-
charges thus brought about are not excused or exempted by-the Acts The dis-
charges were discriminatory and designed to suppoit and encourage meniber-
ship in AFL and to discourage membership in any rival labor organization, and
therefore interfered w'th, restrained, and coerced the employees in the exeicise
of the rights guaranteed in Section 7 of the Act, and the undersigned so finds
2 The Board's jurisdiction versus contract provisions
The respondents and AFL also argued that the Board should not assume juris-
diction over the controversy involving the discharges here considered in the face
20 N. L. R. R. v. Star Publishing Connpanij , 97 F (2d ) 465 (C. C A 9).
556 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of the contractual provisions for the disposition of grievances through the Cen-
tral Adjustment Board and, in event of a tie vote in that board, through a third
party who would serve in the capacity of an arbitrator. The Master Agreement
provides that a decision reached through such procedure shall be final and bind-
ing upon all parties.
Section 8 of the Master Agreement provides:
In addition to the power to adjust grievances referred to it by local unions'
or the Employer as hereinabove provided, and the determination of appeals
in crises of contested discharge, the Adjustment Board shall have the power
and responsibility to investigate and determine all matters arising under
Section 3 (a) hereof relating to the refusal of union members to work with
non-union employees In all such cases notice of the existence and nature of
such dispute shall be submitted in writing to California Processors and Grow-
ers, Inc, by the local union, in addition to presentation to the Shop Com-
mittee and/or local business agent as hereinabove provided.
and further provides:
In addition to meetings called to consider specific disputes as herein pro-
vided, the Central Adjustment Board shall meet at least once a month, or at
other tildes determined by mutual agreement of the members thereof, tor the
purpose of considering any matters, in addition to the adjustment of griev-
ances presented by any party hereto, that may relate to the interpretation or
administration of the provisions of this agreement All decisions of said
Board in adjusting grievances, and all determinations of said Board relating
to the interpretation or admimstiation of this agreement shall be reduced tv
writing and shall be sent to each local union and to each Employer, party
to this agreement. Adjustments or interpretations made in settlement of
local disputes prior to submission to the Board shall not be binding upon the
Central Board, buttany adjustment or interpretation made by the Cential
Board shall be binding on all parties hereto
In February 1946, the question concerning these discharges came before the
Central Adjustment Board, not on the merits of the discharges themselves, but
on the question of whether Hume might rehire the dischargees without requiring
clearance with Local 22382. On an even decision, it was determined to submit the
question of the "closed shop" or "union shop" issue to an arbitrator to be ap-
pointed by the United States Conciliation Service from among the permanent staff
inembei s of that Service. In March 1946, the arbitrator so designated declined
to act At that tune a charge had been pending before the Board and was under
investigation The Board did not assume jurisdiction over all the subject mat-
ter until March 27, 1946, when its complaint was issued, at least a week after the
designee of the Conciliation Service had declined to serve.
Under such circumstances, it is not necessary to dispose of the technical ques-
tion of a conflict between the exercise by the Board of its functions in this case
and the open ition of the terms of the Master Agreement The question concern-
ing the discharges and its consideration by the Board does not impinge upon any
of the rights of any of the parties to the Master Agreement It is the function
of the Board to follow the mandate of the Act in the interest of the public welfare.
Its power and duty to do so, expressed in Section 10 (a) of the Act, is " exclusive,
and . not . , affected by any other means of adjustment or prevention that
has been of may be established by agreement, code, law, or otherwise "
Contractual provisions for the settlement of grievances or disputes are orderly
procedures for the avoidance of interruptions to interstate commerce and trade,
brought about by collective bargaining, and are encouraged by the Act. Whether
G. VV. HUME COMPANY 557
the Board may override such provisions and, ignoring them, assume jurisdiction
and determine a question which might properly have been handled under the
grievance procedure of a contract, is not here involved Here the arbitration
procedure had broken down and no steps have been taken to proceed further.
ldeanwhile, a question of unfair labor practices affecting commerce and the
public welfare in a veiy material way has arisen The board has a duty in such
circumstances to resolve it and apply a remedy, especially rni a case where, as
here, the contract contains no justification for the discharges under consideration.
Admittedly, the situation in the instant proceeding created by the demands of
AFT, that these employees be discharged regardless of the terms of the agreement,
.,of up an obstruction to interstate commerce; but the manner in which Hume
niet the situation was violative of the Act for it deprived its employees of the
rights guaranteed them by the Act Without Board action, the situation has no
prospects of being remedied and the existence of an unused remedial provision in
a private agreement may not be allowed to paralyze the board's statutory grant
of exclusive jurisdiction 2'
i Contentions that the Board has heretofore determined the "closed-shop" issue
The Association and AFL vigorously contend that the Board, in its Supple-
mental Decision in the flutter of Rex cut-Richards Packing Coiuprrrwl, et al., has
roreclosed any question as to the closed-shop character of the Master Agreement
and has given the agreement official sanction as a closed-shop contract when it said
. No legal effect may be given the closed-shop provision contained in
the current (ollective agieenicnts after their expiration (late . . .
The language of the Board carries no such import In the first instance, the
nature of the Supplemental Decision was such that it could in no wal be re-
garded as a determination of anything beyond the fact that the elections, as
contended, did not afford the employees a full opportunity to make a free choice
and that under the circumstances the elections must be set aside and others
held at an early date. The position of Board's counsel that the language was
intended to advise the parties of their broad over-all legal rights and obligations
in the interim is sound But, for the purpose of setting at rest the contentipn
of the Association and AFL that the ]nnguage is of the nature of It commitment
by the Board or of a prejudgment on its part of the issues involved in the instant
pioceeduig, it must be and it is found to be without merit Through the develop-
ment of machinery for "union security," the terns "closed-shop" has taken on a
generic meaning, applied generally by laymen, to any provision of it contract that
contains an element of compulsion in the matter of becoming a member of the
centiacting union or maintaining membership in good standing therein In the
Hatter of 13c)-cut-10chaids Paclitrtq Company, et al., the Master Agreement was
not under investigation. The Board there was not confronted with the problem
of eNaluating it, as it is here In the proceeding out of which the Supplemental
Decision arose, the term "closed-shop" had been bandied about. Each party
thereto commented on it and each recognized that the Master Agreement con-
tained some elements of compelling at least certain employees to become mem-
bers of a local union. The Board, on prior occasions, has been confionted with
other contracts containing provisions for compulsory membership, that have
expired in the midst of representation proceedings." It would appear that the
Cf N L R B v Newark Moi ring Ledger Co , 120 F (2d) 262 (on re-argument)
(C C A. 3), cert den. 314 U S 693.
29 See Matter of Phelps Dodge Copper Products Corporation , Habirshaw Cable and Wire
Division , 63 N L It B 686, 687
558 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
language used by the Board was but a warning against repetition of such conduct
of employers in other cases which had previously been found to be violative of
the Act It makes no difference whether the provision is one for maintenance
of membership, a union shop, a closed-shop, or a preferential shop-all of them
come within the layman's broad genetic term "closed-shop pl ovisions " It
cannot be found that the language was intended to be a determination of the
exact character of the contract.
4. Contentious relative to interpretation of Master Agreement by parties thereto
The contentions of the respondents and AFL that during the life of the Master
Agreement the parties thereto had interpreted it as requiring membership in good
standing in an appropriate local union as a condition of employment are not
supported by the record Prior to about November 11515, there appears to have
been some uncertainty with Hume as to the application of the agreement in re-
quiring membership in good standing as a condition of employment There is
some evidence that Assistant Superintendent Gallardo, at the instance of Local
22352, had, from time to time, between 1941 and 1944, informed employees that
they could not work there unless they had clearances with Local 22382 and that
such non-union employees either dud not report for work again or obtained clear-
ances R M Tomson, secietary-tieasuier and business manager of local 22382
from about July 1942 to June 1945, and president of the Council trom about
Februaiy 1944 to June 1945. adnattc-d on the wibiess st.•nd that the only times
the Council or Local 22382 had asserted that the Master Agreement was a closed-
shop contract was when they thought they could get away ivitli it " He testified
that the Council always sought a closed-shop contract but that, the Association
would never agree to the gianting of one
however, with the amendments to the Master Agreement in the June 1945
nienioranduni, made pmsuant to a National War Labor Boa id directive, the
situation began to clear itself and e.n ly in November 1945, on a direct inqun y
by Hume to Clough, a field representative of the Association, Hiune was informed
by Clough that the Master Agreement contained no compulsion on the employees
who were on the seniority list to become or remain members of Local 22382.
Following this advice, accoid'ng to the testimony of General Manager Biichall
above quoted, Hume consisteiitlj' followed C;lough's interpretation, advised Local
22382 of its position and theteatter refused to accede to any of that unions de-
mands for discharges because of failure to maintain membership in good standing'
in it, until the discharges here involved took place
That the Association does not and has not regarded the Master Agreement as
either a "closed shop agreement" or a "maintenance of membership agreement,"
runs through the entire record and is confirmed, not only by Clough's advice to
Hume but by the position taken by the Association before the Central Adjustment
Board in February 1940, and also before this Board when, during the oral argu-
ment in Washington, D C , before the Board in the Matter of Bercict-Richards
Packntg Company, et al, on January 24, 1940, respondents' counsel, in response
to a question put to him by Board Member Reilly, stated :
. . The contract we have provides that initial employment shall call for
affiliation with the union, but the contract itself does not expressly require
that we discharge people for not maintaining good standing in the union.
A. F. of L maintains the side that we have a union shop and should dis-
charge people. We are in that conflicting position The contract does not
express it. The A. F of L observes us as a union shop and they have picketed
us for not doing so. That contract is in effect until the 28 of February. It
is our position that it is in effect, because the Board assumed that it was
G. W. HT ME COMPANY 559
in its decision; although I understand some question has been raised to
that We assume it is to effect.
From the foregoing, the undersigned finds that the contract was not, either by
mutual consent or custom, regarded by the panties as one requiring membership
in good standing In the local union as a condition of employment, but that it was,
in accordance with its clear terms as heretofore found, devoid of any provision
requiring employees on the seniority list to be or become members of the local
union, or requiring any enrplo^cc to maintain his membership it the union after
becoming a member.
The 1-[arch 2.5, 19116, coati act
1 Execution thereof during pendency of representation proceeding
On Febrnai', 15, 1946, the Bo,ird issued its order setting aside the elections in
the -1lattea of Beicut-Ricli(ods Puckrii- Compenij. et al. for reasons set forth
in its Supplemental Decision of that (late The Board thenem stated that new
elections would be conducted at ,in catty date The decision also recites
The cure eat AFL contra act will expn e on March 1, and since the legal effect
of the foregoing deter minat ion is to keep the question of representation pend-
ing before the Board, none of the unions is entitled to an exclusive status as
the bargaining went after that date In deco dance with well-established
principles. the etnployeis niay not pending a new election, give prefeientarl
ineatmcnt to any of the labor a gantrations Involved, although they may
recognize each one as the representat rave of its members In this state of the
i ccord, no legal effect may be gn en the closed-shop provision contained in
the cur' eat collective agt cements after them expiration (late ; the inclusion
of any such provision in any new agreements, or action pursuant thereto,
would clearly be coatrarv to the proviso in Subsection S (3) Nothing in
our decision. however, should be construed as requiring any change in the
substantive conditions of emplolment now existing by virtue of the foregoing
agreements.
-Notwithstanding this admonition by the Board, Hume entered into the contra act
set out at length in Section 111. A, above, on of about March 25, 1946
The respondents and AIL contend that since the Board had set aside the
elections in Hatter of Beiwit-R,rchai6 Puci-rnq Conipany/, ct al. Hume was not
only free "to deal with and recognize the Ab'L as the exclusive representative
of the employees but the employer is obligated to do so " By a process of elimina-
tion, AFL reasons that since no other selection has been made, it rennams the
choice of the majority and therefore is entitled to be recognized and dealt with as
such, on the theor} that once a majority representative status has been established,
the representation continues until another representative had been selected and
certified as such by the Boa rd The decisions cited by AFL in its brief in support
of its contention are directed to this point alone. They do not touch on the
situation that is created when a question concerning representation has arisen
between rn al organizations and the matter is pending before the Board for deter-
mination Becauuse they :lie not in point, it would serve no useful' purpose to
here discuss them. -
It i^ undisputed that at the time the agreement of March 25, 1946, was executed,
a proceeding w as pending befoi e the Board for the determmat ion and certification
of the collective bargaining representative of not only Flunme's employees but also
the employees of all the members of the Association as a single appropriate unit.
The Board had determined that the appropriate unit consists of all the production
and maintenance employees of the members of the Association, with certain
717734-47-vol 71 37
560 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
specified exceptions, and the proceeding had reached the stage where an election
had been held and ultimately set aside at the insistence of AFL While the
voting at the election determined nothing, it reflected that CIO was the preferred
representative of a very substantial number of the employees of the Association's
members, which included Hume The question then pending was a very real one
as to who represented the employees It still is and it cannot be determined
until the Board's processes have been exhausted in it valid election or elections.
Hume and AFL were not free to enter into a collective bargaining contract
merely because the Board had set aside the elections, An election is only one
step in the investigatory processes of the Board to determine who represents
the employees The process starts with the filing of a petition. It then goes
through the preliminary field investigation on which rests the decision as to
whether to proceed further. If further proceedings are to be taken, a hearing
is held at which the parties advance their ideas as to the appropriateness of the
unit and other pertinent matters. The Board, after considering the record made
at the healing, either decides to proceed no further or to conduct an election
by secret ballot to determine the desires of the employees in the unit it has found
to be appropriate After the election, the Board considers all questions raised
as to the validity of the election Ti the Board finds that the election was con-
ducted in such a manner, or under such circumstances, that it does not reflect
a free expression of choice of those entitled to participate therein, the Board
may, and usually does, set it aside and orders a new election After a valid
election has been had, the Board takes the final steps of certifying the union
shown to have been selected by a majority of those voting
The representation proceeding concei ring Hume',, employees together with
those of the other members of the Association, having been set in motion, it
remains a bar to new collective bargaining contracts containing exclusive recog-
nition between Flume and any labor organization until 1he entire proceeding has
run its course It was thei efore Humes obligation under Ilie Act to refuse to
deal with any labor organization as the exclusive representative, of its employees.
The fact that Hume believed AFL to be the majority representative of the em-
ployees at the time of the execution of the March 25, 1".46, contract is not suffi-
cient The question of the majority representation was before the Board and it
was the 1ioai d's, and not Hume's function to resolve that question By taking
upon itself to determine the question of representation, Hume committed an
unfair labor practice by lending prestige to AFL through the process of con-
tracting with it while the employees were making their selection
In Its order of February 15, 1946, setting aside the elections, the Board had
before it ample precedent for its pronouncement that, pending the holding of
subsequent elections and a determination of their results, no new agreement
of an exclusive bargaining character might be entered into by any of the em-
.prioycrs involved in ll[atter of Bereitt-Richards Pacl.i.nq Company, et at , with
any union This was no more than a statement of the established legal restric-
tions surrounding any employer and rival unions in sin_riar circumstances
In Matter of Elastic Stop Nat Corporation, 51 N. L R. B. 694, enf'dn 142 F.
(2d) 371 (C. C. A. 8), cert den 323 U. S. 722, the Board entered an 8 (2) cease
and desist order largely bottomed on recognition of one of two contending unions
under similar circumstnces, and used the following language at page 702.
A neutral employer, when faced with the conflicting representation claims
of two rival unions, would not negotiate a contract with one of them until
its right to be recognized as the collective bargaining representative had
been finally determined under the procedures set up under the Act
In 11[attcr of Phelps Dodqe Copper Products Corporation, etc., 63 N L R. B.
656, the Board again enunciated the same principle and held discharges under
G. W. HUME COMPANY 561
a closed-shop contract-extended after maturity to hold over during representa-
tion proceedings-to be in violation of Section 8 (3), saying at page 687:
We are of the opinion that if, during the pendency of an election directed
by the Board to resolve a question concerning representation, an employer
extends or renews an existing contract with a labor organization, or makes
a new one, he violates the Act insofar as that organization is accorded
recognition as exclusive bargaining representative or employees are required
to become or remain members thereof as a condition of employment.
In the Matter of Midwest Piping and Supply Co., Inc., 63 N. L. It. B. 1060,
the respondent executed a union shop agreement with one of two contending
unions while a reperesentation petition filed by the oilier union was pending
The Board said at pages 1070-71:
The respondent knew, at the time that the contract was executed, that
there existed a real question concerning the representation of the employees
in question The record shows that both the Steamfitters and the Steel-
workers had vigorously campaigned in the plant, but apprised the respond-
ent of their conflicting majority representation claims, and had filed with
the Board conflicting petitions, which are still pending, alleging the existence
of a question concerning the representation of the employees covered by the
agreement. Under such circumstances. the Congress has clothed the Board
with the exclusive power to investigate and determine representatives for
the purposes of" collective bargaining. In the exercise of this power, the
Board usually makes such deteiminatlon, after a proper hearing and at a
proper time, by permitting employees freely to select their bargaining repre-
sentative by secret ballot In this case, however, the respondent elected to
disregard the orderly representative procedure set up by the Board under
the Act, for which both unions had theretofore petitioned the Board, and to
arrogate to itself the resolution of the representation dispute against the
Steelworkers and in favor of the Steamfitters In our opinion such conduct
by the respondent contravenes the letter and the spirit of the Act, and leads
to those very labor disputes affecting commerce which the Board's adminis-
trative procedure is designed to prevent
We further find that the respondent's afotc-mentioned conduct also con-
stitutes a breach of its obligation of neutrality. As we have previously held,
a neutral etrplo} er, on being confronted with conflicting representation
claims by two rival unions, "would not negotiate a contract with one of
them until its right to be recognized as the collective bargaining represent-
ative had been finally determined under the procedure set up under the
Act " Here, the respondent knew that the Board already had jurisdiction
over the existing question concerning the representation of the employees
coveted by the contract, and that, in accordance with its usual practice, the
Board would not proceed to a resolution of that question until it had passed
upon the then pending original complaint herein, hearing on which had
already been concluded. That no unfair labor practices are found herein
on the original complaint does not alter the effect of the respondent's later
breach of its neutrality obligation
The same general rule is inherent in the Board's numerous decisions that such
a contract entered into after representation proceedings have been instituted, is
no bar. See Radio Corporation of Agnes ica. 63 N L R. B. 235.29
20 See also, Matter of John Engelhorn cC Sons, 42 N L R B 866, 875-876 , enf'd 134
F. (2d) 553, 556 (C C. A. 3) ; Matter of Southern Wood Preserving Co, 45 N. L R B 230,
238, enf'd 135 F. ( 2d) 606, 607 (C. C. A 5) , Matter of Phelps Dodge Copper Products
Corporation , supra.
562 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
It is also apparent that the March 25 contract sets up the employees of Hume
as a separate appropriate bargaining unit despite the fact that the Board had
already found that the employees of the members of the Association constituted
the appropriate bargaining unit. In this respect, too, the March 25 agreement
must fall since it fails to comply with the requirements of the proviso in Section
8 (3) of the Act. At the time of the hearing Hume was still a member of the
Association.
By entering into the closed-shop contract of March 25, 1946, Hume, created a
condition of discrimination in regard to the hire and tenure and terms or condi-
tions of employment of its employees, which had the coercive effect of encouraging
membership in Local 22382 and discouraging membership in CIO. It is therefore
found that the foregoing conduct of Hume was, in fact, a discrimination in regard
to the hire and tenure and terms or conditions of employment of its employees
because it compelled its employees to become and remain members of Local 22382,
and, therefore interfered with, restrained, and coerced its employees in the exercise
of the rights guaranteed in Section 7 of the Act.
2 Execution thereof under duress
In a prior section of this report, the subject of coercion and the exigencies of
the business as a defense against conduct prohibited by the Act, has been dealt
with. Here it is again raised with reference to the pressure exerted by AFL
to compel the execution of the March 25, 1946, contract by Hume The circum-
stances and the reasons that actually impelled the execution of the contract
are both reflected in the following uncontradicted and credible testimony of
President Hume while under examination by respondents' counsel :
Q Before March 1, 1946, were you given a demand by the union, that is,
by the AFL union, that you sign up an exclusive bargaining contract with
them, with closed shop provisions?
A. We were asked to, yes
Q. Was that asking accompanied by any statement as to what would happen
if you did not comply with that request?
A. It was intimated
Q. That what?
A. That we would not be able to operate.
Q. In your opinion, had you not entered into the contract which you sub-
sequently did, with that union, would your plant have been able to operate?
A. We know that it would not, because we did not enter into any agreement
until the absolute deadline The trucks were •tied up,.so.therefore we-were
forced to enter into an agreement.
Q. The agreement that you entered into under those circumstances was
made on what date?
A. March 25, 1946
Q. Between March 1, 1946 and March 25, 1946, what occurred in connection
with the operation of the plant or the stoppage of operation of the plant?
A. Trucks were not allowed to come in or out of the warehouse. We were
not operating at the time The picket was placed down by the warehouse,
so that no trucks could come in or out.
* * *
Q Between March 1, 1946 and March 25, 1946, the bulk of the work on opera-
tions there would consist of'shipment egdthg,out ^Fthe plantlfrom"'tbe ware-
house?
A. That is correct.
G. W. HUME COMPANY 563
Q And those shipments of course are customarily hauled by truck, are
they?
A Partially rail, partially truck
Q. Were any shipments (luring that period made out of the plant by way
of rail9
A Yes
Q Were any shipments during that period made out of the plant by way
of trucks?
A No
A
Q
You say there was a picket line maintained during that period?
Correct.
By whom?
The AFL
Did the Teanisters who were driving the trucks observe that picket line?
They did.
None of them went through?
No.
You knew that if the picket line was maintained , that no incoming trucks
could haul produce into the plant, is that correct?
A That is correct
Q Did the company commence canning operations on March 25th and carry
on continuously thereafter9
A. We did.
This testimony cleanly indicates that the sole reason Hume entered into the
contract of March 25, 1946. was to escape the penalties that were implicit in
the threats of AFL, and not because AFL was the majority representative of
the enuployees.20 In other words, Hume entered into the contract because it
feared that by refusing to do so it would be visited with economic loss As in the
case of the discharges under like pressure, the choice selected was without the
pale of the law Between the penalties attached to a disregard of the obliga-
tion imposed by the Act to permit the Board, after it had assumed jurisdiction,
to determine the question of representation, and the economic hardships that
might develop from the threat of AFL to bar Hume from the receipt of mei-
chandise, Hume elected to bow to the latter and accept the former Hume there-
fore must be directed to reverse its position to conform to the requirements of
the law As the United States Circuit Court of Appeals for the Ninth Circuit
carefully pointed out in N. L. P B v Star Pubitshvng Co., 97 F (2d) 465, "The
Act prohibits unfair labor piactices in all cases It permits no immunity be-
cause the employer may think that exigencies of the moment require infraction
of the statute In fact, nothing in the statute permits or justifies its violation
by an employer." This rule has also been followed in, numerous other cases
involving employers who have refused to obey the mandate of the Act because
of pressure by one union which was party to a jurisdictional labor dispute The
statute "perinits no immunity because of undue hardship or economic pressure
imposed on the employer It leaven, no room for the appeasement of hostile in-
terests . ' A contrary principle making enforcement of the provisions
11 President IIunie admitted that he had no direct evidence that AFL represented the
majority of the employees on March 25, 1946, but that he assumed that it represented them
because "we had always been AFL "
31 See McQiiay-Norris Mfg Co. v N. L. R. B , 116 F. (2d) 748, 752 (C. C A 7), cert den
313 U S 565 See also N L. R B v. Isthmian Steamship Go, 126 F. (2d) 598, 599
(C C A. 2) ; N L R B. v. Hudson Motor Car Co, 128 F (2d) 528, 532 (C C A 6) ;
N. L. R. B v . John Nngethorn i Sons, 134 F . ( 2d) 553, 557, (C . C A. 3) , South Atlantic
564 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of the Act dependent upon considerations of the economic hardships Imposed upon
an erliployer would, as here, nullify the right of employees, guaranteed to them
by the Act, to bargain through representatives of their own choosing Itepre-
sentativcs for the purpose of collective bargaining under such a principle would
be determined by the degree of economic pressure rival unions or even one's
customers would be able to bring to bear upon an employer, rather than by the
free choice of a majority of the employees a Such a defense is without merit
and as previously stated, it must be and it is found that the contract of March 25,
1946, was entered into under circumstances prohibited by the Act and that
thereby Hume has interfered with, restrained, and coerced its employees in the
exercise of the rights guaranteed in Section 7 of the Act.
The undersigned further finds that Hume by (1) urging its employees to be-
come and remain members in good standing in Lccal 22382, (2) grar.mg, efter
March 1, 1946, to representatives of AFL access to its cannery while denying like
privilege to representatives of CIO, and (3) requiting, as a condition of employ-
ment, the employees on the seniority list to obtain new clearance slips from
Local 22382, interfered with, restrained, and coerced its employees in the exercise
of the rights guaranteed in Section 7 of the Act
IV. THE LIABILITY OF TIIE ASSOCIATION FOR THE UNFAIR LABOR PRACTICES
COAIMII1"TED BY HUME
The complaint alleged that by virtue of the fact that the Association, among
other things, advised its membeis relative to their respective tabor policies and
other matters incident thereto, including the negotiation and execution of col-
lective bargaining contracts covering the employees of its members, the Associa-
tion is an employer within the meaning of the Act. The joint answer of the
respondents neither admitted nor denied these allegations although at the hear-
ing, the Association concedes that it is an employer within the meaning of the
Act. The Association cannot be charged ipso facto with violating the Act, be-
cause one of its members may have committed an unfair labor practice without
some showing of participation therein by the Association The facts tinder Sec-
tion III, A and B, show that Clough, a field representative of the Association,
attended a meeting at the Hume cannery in August 1945, which was also attended
by Hume's "regular" employees, several representatives of Local 22382, about
7 or 8 representatives of Teamsters, and by Gallardo, and Fordham represent-
ing Hume, and that Clough "asked" the assembled employees to clear through
"the Teamsters' Organization in order to keep the plant operating in a peace-
ful manner so they could pack their peaches " According to the credible testi-
mony of Heagle, Clough, in answer to a question put to him by Heagle, as to
whether the "regular" employees "would be forced" to sign dues check-off authori-
zations if they cleared as suggested, Clough replied in the negative The record
shows that none of the "regulars" signed any clearance slips in the Teamsters,
Steamship Co v N L R. B., 116 F (2d) 480, 481 (C C A. 5), cert den 313 U S 582;
N. L. B. B. v Gluek Brewing Co, et at., 144 F (2d) 847, 853 (C C A. 8) ; Warehousemen's
Union v. N. L. B B., 121 F. (2d) 84, 87 (App. D. C.), cert. den 314 U. S. 674; N. L. R. B.
v National Broadcaetinq Company, et (it, 150 F (2d) 895 (C C A 2).
'- In the Matter of A J. Showalter Company, 64 N L R. B. 573, the Board held that the
threat of it loss of business, sufficient even to cause the plant to be shut down, did not justify
the president in telling his employees of the threat and the effect it might have on their
jobs if they continued to remain members of a certain union. In the recent case of Matter
of Toledo Desk & Fixture Company, 65 N. L R. B. 1086, the same principle was again
announced when the employer urged that, to recognize the C. I. 0. would deprive it of the
right to use the A F of L . label and thereby render its products unsalable in their customary
markets
G. W. HUME COMPANY 565
in response to this request, but that they did exec-ate new clearance slips in
Local 22382 and the cannery continued in uninterrupted operation until November
19, 1945. Moreover, none of the "regulars" executed new check-off authoriza-
tions after they had executed the revocations in June 1945 It is a fact that those
"regulars" who did not remain in good standing in Local 22382 were later dis-
charged by Hume at the behest of that organization, but those discharges were
not the result of any unfair labor practices of the Association Clough's official
states with the Association was not developed at the hearing beyond the state-
pnent by counsel for the Association, that he was an "employee" and the state-
ment of Birchall that, so far as he knew, Clough was a "field representative."
Such statements, uncontroverted, are insufficient to attach to the Association re-
sponsibility for whatever Clough may have clone at the August 1945 meeting
when the peach canning season was being threatened by the demands of AFL
1 hat went beyond the terms of the Master Agreement. Moreover, assuming that
Clough had authority to bind the Association, Clough's statements on that
occasion must be read in the atmosphere of the occasion. He (lid not threaten
anyone, but he did appeal to the employees for co-operation and, in explaining
that no check-off of dues would be involved, pointed out, in effect, that clearing
through Teamsters would be no more than a gesture. That Clough nor the
Association entertained an idea of compelling such action is clearly shown by
the telephone cony ei sation of early November 1945, between President Hume,
with a representative of Local 22382 present at Hiime's end, wherein Clough
advised Hume not to discharge any employee on the seniority list because he
was not in good standing with Local 22352 The undersigned is convinced, and
finds, that the evidence is insufficient to base a finding that the Association
violated the Act by the acts and statements of Clough, as described above, nor
does the evidence show that the Association participated in the unfair labor
practice committed by Hume Accordingly, the undersigned will recommend
that the allegations of the complaint with respect to the Association be dismissed.
V. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Hume set forth in Section III, above , occurring in connection
with the operations of Hume described in Section I, above, have a close, intimate,
and substantial relation to trade, traffic, and commerce among the several States,
and such of them as have been found to be unfair labor practices tend to lead to
labor disputes burdening and obstructing commerce and the free flow of
commerce.
VI THE REMEDY
Having found that Hume has engaged in unfair labor practices, the under-
signed will recommend that it cease and desist therefrom and take the following
affil mative action which it is found will effectuate the policies of the Act.
Since it has been found that Hume discriminated in regard to the hire and
tenure of employment of the 1S persons whose names appear on Appendix B,
hereto annexed, by discharging them and thereafter refusing to reemploy some of
them '3 because they, and each of them, had failed and retused to remain mem-
bers in good standing in Local 22382, the undersigned will recommend that the
respondent offer to each of them who has not been heretofore reinstated imme-
diate and full reinstatement to their former or substantially equivalent positions
without prejudice to their seniority and other rights and privileges.
3i The record is not clear how many "regular" employees have been rehired since Novem-
ber 20, 1945.
566 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Since it has been found that Hume disciiminated in regard to the hire and
tenure of employment of Clarence McVay, a seasonal employee, the undersigned
will recommend that Hume offer him immediate and full reinstatement to his
former or substantially equivalent position, without pi ejudice to his seniority
or other rights and privileges, and make him whole for any loss of, pay he 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 December 7, 1945, the date of his discharge, to the date of Hume's
offer of reinstatement to him, less lus net eoinings" during said period How-
ever, since Hume's business is seasonal, it is possible that the cannery may not be
in operation at the time said otter of leinstatement is made; in that event the
offer of reinstatement of McVay shall become effective at such time as Hume's
seasonal business next begins. Met cover, since McVay, is a seasonal employee,
the undersigned will not recommend back pay for the period in which he normally
would not have worked in Hume's cannery, nor will the undersigned recommend
the deduction as earnings of any monies earned elsewhere by him during such
period.
Since it has been found that Clemie Robinson, Monroe Robinson, Thomas L.
Broil, Ruth Waite, Agnes Hopkins, Myrtle Brown, Genevieve Alsup, Marguerite
Watts, Clifford C. Luther and R B Rearick (the persons whose names appear on
Appendix C, hereto annexed) are seasonal employees and had been reinstated
by Hume prioi to the heating herein, the undersigned will recommend that Hume
make them whole for any loss of pay they may have suffered by reason of Hunie's
discrimination against them, by payment to each of them of a sum of money
equal to the amount he or she normally would have earned as wages during the
pei nod from November 21, 1945, the date of their discharges, to the (late when
each of then was reinstated by Hume, less his or her net earnings during such
period Since Hume's business is seasonal in nature and since the pen sons named
in this paragraph are seasonal employees, the undersigned will not recommend
back pay for the periods in which they normally would not have worked in
Hume's cannery, not, will the undersigned recommend the deduction as earnings
of any monies earned elsewhere by them during Such periods.
At the time of the hearing Oscar Johnson, a "regular" employee was in the
military forces of the United States and is accordingly not available for imme-
diate reinstatement. Therefore, the undersigned will recommend that Hume,
upon application by Johnson within ninety (90) days after his discharge from
the aimed forces of the United States, offer him reinstatement to his former or
substantially equivalent position, without prejudice to his seniority or other
rights and privileges. The undersigned will further recommend that Hume make
Johnson whole for any loss of earnings lie may have suffered by reason of Hume's
discrimination against bin), by payment to him of a sum of money equal to the
amount he normally would have earned as wages during the period: (1) between
November 20, 1945, the date of his discharge, and the date of his entry in the
armed forces of the United States and (2) between the date five (5) days after
Johnson's timely application for reinstatement by Hume and the actual offer
of reinstatement, less his net earnings during these periods.
Since it has been found that A E Berry, Ernest G Bishop, Viler Bjorkhmd,
Jasper J. Bobb, Harold Dillard, William J Ely, Clyde Faddis, H F. Frazier,
Si By "net earnings" is meant earnings less expenses, such as for transportation, room,
and board, incuried 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 Matter
of Ciossett Lumber Company, 8 N L 11 B 440 Monies received for work perfoimed upon
Federal, State, county, municipal, or other work-relief piojects shall be considered as earn-
ings . See Republic Steel Corporation v. N. L. R B., 311 U S 7
G. W. HUME COMPANY 567
Hai-lie Fi'ischneckt, Irwin C. Heagle,° T Boyd McKamey, Archie Miller, A. E.
Moore, Harry E Pierson, Abe Thiessen, Neal Watts, and It B. White (the per-
sons whose names appear on Appendix B, hereto annexed) are "regular" em-
ployees and were also d iscriuuuatorily discharged by Hume, and that an
undetermined number of them have been reinstated by Hume, the undersigned
will recommend that Hume make each of them whole for any loss,of pay he may
have suffered by reason of Hume's discrimination, by payment to each of a sum
of money equal to the amount he normally would have earned as wages during the
period from the (late of the respective discharges to the date when each of them
was reinstated by Hume, or shall hereinafter be offered reinstatement, less his
net earnings during such period.
It has been found that by reason of the demands of AFL for changes in the
Master Agteenient, made prior to March 1, 1946, that contract expired by its
own terms on March 1, 1946, and that the contract of March 25, 1946, was in-
tended by the parties thereto to be a contract of indefinite duration, to incor-
porate all the terms of the Master Agreement, and to be a new over-all agree-
ment embodying the terms of the March 25, 1946, contract plus the provisions
of the Master Agreement Since it has been found that the March 25, 1946,
contract constituted an unfair labor practice on the part of Hurne, the undersigned
will recommend that Hume be ordered to cease and desist from giving effect to
said contract and such other contracts, understandings, supplements, extensions,
or other agreements as may have been related thereto, provided, however, in so
doing, Hume shall not be requii ed or permitted to vary those provisions of such
contracts, understandings, supplements, extensions or other agreements which
establish wages, hours of employment, rates of pay, sentoiity, or other sub-
stantial rights of its employees, until such time as it new contract is entered into
with an exclusive collective bargaining representative of its employees duly
certified as such representative by the Board.
In acceding to AFL's demand for the discharge of the 29 persons whose names
appear on Appendices B and C, hereto annexed, Hume violated Section 8 (3) of
the Act Normally in cases in which an employer has unlawfully discriminated
against an employee by discharging him, in addition to affirmative relief, the
Board orders the emploSer to cease and desist from in any manner infringing,
upon the rights guaranteed in Section 7 of the Act. In the instant case, how-
ever, Hume discharged the 29 persons not to satisfy any purpose of its own but,
rather, yielded to the pressure of AFL who refused to allow the cannery to
operate because the said 29 persons were not in good standing with Local 22382.
Under such circumstances, and in view of the absence of any evidence that
danger of other unfair labor practices is to be anticipated from Hume's conduct
in the past, the undersigned will not recommend that Hutne be enjoined from
the commission of any and all unfair labor practices Nevertheless, the under-
signed will recommend that Hume be ordered to cease and desist from the unfair
labor practice herein found JS
Since it has been found that the evidence does not support the allegations of
the complaint that the Association committed unfair labor produces, the under-
signed will recommend that the allegations of the complaint with respect to the
Association be dismissed
Since John M Smith did not appear at the hearing and no evidence was intro-
duced with respect to his status, the undersigned will recommend that the alle-
gations of the complaint with respect to John M Smith be dismissed without
prejudice
On the basis of the foregoing findings of fact and upon the entire record in
the case, the undersigned makes the following:
w See Matter of American Car and Foundry Company , 66 N L R. B 1031.
568 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
CONCLUSIONS OF LAW
1. Food, Tobacco, Agricultural and Allied Workers Union of America, affiliated
with the Congress of Industrial Organizations, International Brotheihood of
Teamsters, Chauffeurs, Warehousemen and Helpers of America, affiliated with
the American Federation of Labor, California State Council of Cannery Work-
ers, affiliated with the American Federation of Labor, and Cannery Workers
Union, Local 22382, affiliated with the American Federation of Labor, 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 the
29 persons whose names appear on Appendices B and C, hereto annexed, thereby
encouraging membership in certain affiliates of the American Federation of
Labor and discouraging membership in Food, Tobacco, Agricultural and Allied
Workers of Ameiica, affiliated with the Congress of Industrial Organizations,
and other labor organizations, Hume 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, Hume has engaged in and is
engaging in unfair labor practices within the meaning of Section 8 (1) of the Act
4 By discriminating in regard to the hire and tenure and terms or conditions
of employment of its employees, through the medium of the illegal contract of
March 25, 1946, with Cannery Workers Union, Local 22382, and California State
.Council of Cannery Workers, both affiliated with the American Federation of
Labor, to encourage membership in that oiganization. and discourage member-
ship in Food, Tobacco, Agricultural and Allied Workers Union of America,
affiliated with the Congress of Industrial Organizations, Hume has engaged in
and is engaging in unfair labor practices within the meaning of Section 8 (3)
of the Act.
5 The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 (6) and (7) of the Act.
6 Califoinia Processors and Growers, Inc, did not violate the Act as alleged
in the complaint.
RECOMMENDATIONS
Upon the basis of the above findings of fact and conclusions of law, the under-
signed recommends that the respondent, G W. Hume Company, Turlock, Cali-
fornia, its officers, agents, successors, and assigns shall:
1. Cease and desist from :
(a) Recognizing the Cannery Workers Union, Local 22382, and California
State Council of Cannery Workers, both organizations being affiliated with the
American Federation of Labor, as the exclusive representatives of its employees
for the purposes of collective bargaining unless and until said organizations,
or either of them, shall be certified by the National Labor Relations Board as
the exclusive representative of such employees;
(b) Giving effect to its contract dated March 25, 1946, with California State
Council of Cannery Workers and Cannery Workers Union, Local 22382, both
organizations being affiliated with American Federation of Labor, or to any
extension, renewal, modification or supplement thereto, or to any superseding con-
tract with those labor organizations, or any other labor organization or affiliate
thereof, provided, however, in so doing, Hume shall not be required or permitted
to vary those provisions of such contracts, understandings, supplements, exten-
sions, ar other agreements which establishes wages, hours of employment, rates
of pay, seniority, or other substantial rights of its employees unless and until
G. W. HUME COMPANY 569
said organizations, or either of them, shall be certified by the National Labor
Relations Board as the representatives of Hume's employees ;
(c) Discouraging membership in Food, Tobacco, Agricultural and Allied Work-
ers Union of America, affiliated with the Congress of Industrial Organizations,
or any other labor organization of its employees, by discharging or refusing to
reinstate any of its employees, or in any other manner discriminating in regafrd
to their hire and tenure of employment or any term or condition of employment;
(d) Encouraging membership in Federal Labor Union Local 22382, or any
other labor organization, by yielding to pressure from that organization, or other
pressure, through discharge or refusal to, reinstate any employee or through any
other form of discrimination in regard to hire or tenure of employment or any
term or condition of employment
2. Take the following affirmative action which the undersigned finds will
effectuate the policies of the Act :
(a) Offer to the persons whose names appear on Appendices B and C, hereto
annexed, immediate and full reinstatement to their former or substantially
equivalent positions without prejudice to their seniority and other rights and
privileges in the manner set forth in "The remedy" ;
(b) Make whole in the manner set forth in "The remedy" the persons whose
names appear on Appendices B and C, hereto annexed, for any loss they may have
suffered ;
(c) Withdraw and withhold all recognition from California State Council of
Cannery Workers and Cannery Workers Union, Local 22382, both organizations-
being affiliated with the American Federation of Labor, as the exclusive repre-
sentatives of its employees for the purposes of collective bargaining with respect
to rates of pay, wages, hours of employment and other conditions of employment
unless and until said organizations, or either of them, shall have been certified by
the National Labor Relations Board as the representatives of such employees;
(d) Post at its Turlock, California, cannery copies of the notice attached
hereto and marked Appendix D. Copies of the notice, to be furnished by the
Regional Director for the Twentieth Region, after being duly signed by the Hume
representative, shall be posted by Hume 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 Hume to insure that said notices are not
altered, defaced or covered by any other material;
(e) F'ile 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 Hume has com-
plied with the foregoing recommendations
It is further recommended that unless Hume 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 Hume to take the action aforesaid.
It is further recommended that the complaint with respect to the California
Processors and Growers, Inc., be dismissed.
It is further recommended that the complaint with respect to the discharge of
John M. Smith be dismissed without prejudice.
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) days from the
date of the entry of the order transferring the case to the Board, pursuant to
570 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Section 32 of Article II of said Rules and Regulations, file with the Board,
Rochambeau 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 it 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) (lays 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.
HOWARD MYERS,
Trial Eramaner.
Dated May 20, 1946.
A E. Perry
Ernest G. Bishop
Vider Bjorklund
Jasper J. Bobb
Harold Dillard
Wm. J. Ely
Clyde Faddis
H. F. Frazier
Harlie Frischkneckt
Irwin C. Heagle
Oscar Johnson
T. Boyd McKamey
Archie Miller
A. E Moore
Harry E. Pierson
A. E Berry
Ernest G. Bishop
Vider Bjorklund
Jasper J. Bobb
Harold Dillard
Wm J. Ely
Clyde Faddis
H. F. Frazier
Harlie Frischkneckt
Clemie Robinson
Monroe Robinson
Thomas L Broll
Clarence McVay
Ruth Waite
Agnes Hopkins
APPENDIX A
APPENDIX B
APPENDIX C
Abe Thiessen
Neal Watts
R. B. White
Clemie Robinson
Monroe Robinson
Thomas L. Broil
Clarence McVay
Ruth Waite
Agnes Hopkins
Myrtle Brown
Genevieve Alsip
Marguerite Wafts
Clifford C. Luther
R. E. Rearick
John M Smith
Irwin C. Heagle
Oscar Johnson
T. Boyd McKamey
Archie Miller
A E. Moore
Harry E. Pierson
Abe Thiessen
Neal Watts
R B White
Myrtle Brown
Genevieve Alsup
Marguerite Watts
Clifford C Luther
R E Reariek
C. W. HUME COMPANY
APPENDIX D
NOTICE TO ALL EMPLOYEES
571
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 offer to Clarence McVay and Oscar Johnson immediate and full
reinstatement to their former or substantially equivalent positions without
prejudice to any seniority or other rights and privileges enjoyed ,'and make
them whole for any loss of pay suffered as a result of the discrim i nation.
We will offer to those of the employees named below who have not been
reinstated already, immediate and full reinstatement to their former or
substantial ] y equivalent positions without prejudice to any seniority or other
rights and privileges enjoyed , and make each of the following whole for any
loss of pay suffered as a result of the discrimination.
A E. Berry Clyde Faddis A E Moore
Ernest G Bishop B. F. Frazier Harry E. Pierson
Wider Bjorklund Harlie 1+'rischkneckt Abe Thiessen
Jasper J Bobb Irwin C Beagle Neal Watts
Harold Dillard T Boyd McKamey It B. White
lVal. J. Ely Archie Miller
We vv ill make whole the follovN mg for any loss of pay suffered as a result
of our discrimination against them
Clemie Robinson Agnes Hopkins Clifford C Luther
Monroe Robinson Myrtle Brown 11 E Rearick
Thomas L. Broil Genevieve Alsup
Ruth Waite Marguerite Watts
We will not encourage membership in Cannery Workers Union, Local
22332, or in any other labor organization, by yielding to pressure from that
or any other labor organization, ox other pressure, tinougli discharges or
refusal to reinstate any employee or through any other form of discrimina-
tion in regard to hire or tenure of employment or any term or condition of
employment.
All our employees axe free to become or remain members of Food, Tobacco,
Agricultural & Allied Workers Union of America, CIO, or any other labor
organization We will not discriminate in regard to lure or tenure of em-
ployment or any term or condition of employment against any employee
because of membership in or activity on behalf of any such labor organi-
zation.
G. W. HUME CODIPANY,
Employer.
Dated------------------ By ----------------- ----------------------
(Represeiitative) (Title)
Noro: Any of the above-named employees presently serving in the Armed
Forces of the United States will be offered full reinstatement upon application in
accordance with the Selective Service Act atter discharge from the Armed Forces.
This notice must remain posted for 60 clays from the (late hereof, and must not
be altered, defaced, or covered by any other material.