Lincoln Packing Co.

National Labor Relations Board - Board Decisions

Aug 19, 1946

70 N.L.R.B. 135 (N.L.R.B. 1946)

In the Matter of LINCOLN PACKING COMPANY and FOOD, TOBACCO,
AGRICULTURAL & ALLIED WORKERS UNION OF AMERICA, C. I. O. and
INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WARE-
HOUSEMEN AND HELPERS OF AMERICA, A. F. OF L. and CALIFORNIA
STATE COUNCIL OF CANNERY UNIONS, A. F. OF L., PARTIES TO THE
CONTRACT
Case No. 20-C-1.438.Decided August 19,1946
Mr. Robert E. Tillman, for the Board.
Downey, Brand and Seymour, by Mr. John F. Downey, of Sacra-
mento, Calif., for the Respondent.
Gladstein, Andersen, Resner, Sawyer, and Edises, by Mr. Bertram
Edises, of San Francisco, Calif., for the C. I. O.
Tobriner and Lazarus, by Mr. Mathew 0. Tobriner, of San Fran-
cisco, Calif., for the A. F. of L.
Mr. Edward H. Moore, of Oakland, Calif., appearing specially for
California Processors and Growers, Inc.
Mr. Julius Topol, of counsel to the Board.
DECISION
AND
ORDER
On April 18, 1946, Trial Examiner Thomas S. Wilson issued his
Intermediate Report in the above-titled proceeding, finding that the
respondent 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 Inter-
mediate Report attached hereto. Thereafter, the respondent and the
AFL filed exceptions to the Intermediate Report and supporting
briefs. On July 2, 1946, the Board at Washington, D. C., heard oral
argument in which the respondent, the C. P. & G., the AFL, and the
FTA-CIO participated.
The Board has reviewed the rulings of the Trial Examiner at the
hearing and finds that no prejudicial error lias been committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and briefs, and the entire record in
the case, and hereby adopts the findings, conclusions, and recommenda-
70 N. L. R. B., No. 13.
135
136 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tions of the Trial Examiner, with the following addition and modi-
fication :
1. In accordance with the principles -enunciated in the Flotill
Products case,' we find, as did the Trial Examiner, that the respondent,
by concluding a closed-shop agreement with the AFL on February
27, 1946, during the pendency of a representation proceeding before
the Board involving employees covered by the contract, interfered
with, restrained, and coerced its employees,' within the meaning of
Section 8 (1) of the Act.
2. We find it unnecessary, for the reasons set forth in the Flotill
case, to determine whether, as found by the Trial Examiner, the ex-
ecution of the closed-shop agreement in the present case also con-
stituted a violation of Section 8 (3) of the Act. We shall, therefore,
dismiss the complaint insofar as it alleges that the respondent violated
Section 8 (3) of the Act. ,
ORDER
Upon the entire record in the case, and pursuant to Section 10 (c)
of the National Labor Relations Act, the National Labor Relations
Board orders that the respondent, Lincoln Packing Company, Lin-
coln, California, and its officers, agents, successors, and assigns shall:
1. Cease and desist from :
(a) Recognizing International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America, A. F. of L., and Cali-
fornia State Counsel of Cannery Unions, A. F. of L., as the exclusive
representative of its employees for the purpose of collective bargain-
ing, unless and until said organizations, or either of them, shall have
been certified by the National Labor Relations Board as the exclusive
representative of such employees;
(b) Giving effect to its contract dated February' 27, 1946, with
International Brotherhood ' of Teamsters, Chauffeurs, Warehousemen
and Helpers of America, A. F. of L., and California State Council of
Cannery Unions, A. F. of L., or to any extension, renewal, modifica-
tion, or supplement thereof, or to any superseding contract with those
labor organizations, or any labor organization or affiliate thereof,
unless and until said organizations, or either of them, shall have been
certified by the Board as the representative of the respondent's
employees;
(c) In any like or related manner interfering with, restraining, or
coercing its employees in the exercise 'of the right to self-organization,
to form labor organizations, to join or assist Food, Tobacco, Agricul-
tural and Allied Workers of America, C. I. 0., or any other organiza-
tion, to bargain collectively through representatives of their own
choosing, and to engage in concerted activities, for the purpose of
'Matter of Flotill Products, Inc., 70 N. L. R. B. 119.
LINCOLN PACKING COMPANY 137
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) Withdraw and withhold all recognition from International
Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers
of America, 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 with respect to rates of pay,
wages, hours of employment, and other conditions of employment, un-
less and until said organizations, or either of them, shall have been
certified by the National Labor Relations Board as the representative
of such employees;
(b) Post at its plant at Lincoln, California, copies of the notice
attached to the Intermediate Report herein, marked "Appendix A." 2
Copies of said notice, to be furnished by the Regional Director for
the Twentieth Region, shall, after being duly signed by the respond-
ent's representative, be posted by the respondent immediately uponu
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;
(c) Notify the Regional Director for the Twentieth Region, within
ten (10) days from the date of this Order, what steps the respondent
has taken to comply herewith.
IT IS FURTHER ORDERED that the complaint, insofar as it alleges that
the respondent discriminated against its employees, within the
meaning of Section 8 (3) of the Act, be, and it hereby is, dismissed.
INTERMEDIATE REPORT
Mr. Robert E. Tillman, for the Board.
Downey, Brand and Seymour, by John F. Downey, of Sacramento , Calif., for
the Respondent.
Gladstevn , Anderson , Resner, Sawyer, and Edises , by Bertram Edises, of San
Francisco , Calif., for the C. I. 0.
Tobrzner and Lazarus , by Mathew 0. Tobriner , of San Francisco , Calif., for
the A. F. of L.
Mr. Edward H. Moore, of Oakland, Calif ., appearing specially for California
Processors and Growers, Inc.
STATEMENT OF THE CASE
Upon a first amended charge duly filed March 21, 1946, by Food, Tobacco,
Agricultural and Allied Workers Union of America, CIO, herein called the
2 This notice , however , shall be, and it hereby is , amended by striking the last sentence of
the last paragraph commencing "We will not discriminate . . ." and by substituting the
words "A Decision and Order" in lieu of the words "Recommendations of A Trial Exam-
iner" appearing in the first paragraph.
138 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
FTA-CIO, the National Labor Relations Board, herein called the Board, by
its Regional Director for the Twentieth Region, hereinafter referred to as
Regional Director, issued its complaint, dated March 22, 1946, against the Lin-
coln Packing Company, herein called the Respondent and International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America,
A. F. of L., and California State Council of Cannery Unions, A. F. of L., herein
called the AFL, alleging that the Respondent had engaged in and was engaging
in unfair labor practices affecting commerce within the meaning of Section 8 (1)
and (3) and Section 2 (6) and (7) of the National Labor Relations Act, 49
Stat. 449, herein called the Act. Copies of the complaint and notice of hearing
thereon were duly served upon the Respondent, FTA-CIO, and AFL
With respect to the unfair labor practices the complaint alleged that during
the period while a question of representation between AFL and FTA-CIO at
the Respondent's plant was pending and undecided before the Board, the Respond-
ent executed an exclusive bargaining agreement with the AFL despite the
directive contained in the Board's Supplemental Decision and Order dated
February 15, 1946, issued in the representation proceeding that Respondent not
execute an exclusive agreement with either FTA-CIO or AFL, and that by signing
said exclusive agreement at said time the Respondent interfered with, restrained,
and coerced its employees in violation of Section 8 (1) and (3) of the Act
Thereafter the Respondent and the AFL filed answers wherein certain facts
were admitted but the commission of any unfair labor practices was denied.
Pursuant to notice, a hearing was held at Lincoln, California, on April 4, 1946,
before the undersigned, the Trial Examiner duly designated by the Chief Trial
Examiner. At the opening of the hearing, the California Processors and Growers,
Inc., hereinafter referred to as the C. P. & G., were permitted to appear specially
for the purpose of obj(&ting on certain stated grounds to the proceedings. At
the same time the AFL and the Respondent moved to dismiss the complaint on
various technical grounds. These motions to dismiss were denied with leave
to renew at the close of the hearing Said motions were not renewed, but will
be considered hereinafter as though renewed.
The Board, the Respondent, AFL, and FTA-CIO were represdnted by counsel,
participated in the hearing, and were afforded full opportunity to be heard, to
examine and cross-examine witnesses, and to introduce evidence bearing on the
issues. At the conclusion of the hearing all parties engaged in oral argument,
and the Respondent and the AFL thereafter filed briefs with the undersigned.
Upon the entire record in the case and from his observation of the witnesses,
the undersigned makes the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
Lincoln Packing Company is a California corporation, having its principal
office and only plant in Lincoln, California, where it is engaged in the business of
canning fruits and vegetables. The annual sales from Respondent's products
exceed $1,500,000, of which approximately 90% represents the amount of sales
of products which are shipped from the plant to points outside the State of Cali-
fornia. The Respondent admits that it'is engaged in commerce within the
meaning of the Act.
II. THE ORGANIZATIONS INVOLVED
Food, Tobacco, Agricultural and Allied Workers Union of America, CIO, Inter-
national Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of
America, A. F. L., and California State Council of Cannery Workers, A. F. of L.,
are labor organizations admitting to membership employees of the Respondent.
LINCOLN PACKING COMPANY
III. THE UNFAIR LABOR PRACTICES
1. The Facts
139
The facts in the instant case are very simple and with but one minor exception,
which is of no moment to the decision here, are admitted by all parties.
Beginning in 1942 and extending to March 1, 1946, the Respondent maintained
contractual relations with AFL, or its predecessor, AFL Cannery Workers
Union, No. 20324, Sacramento County, Calif.' In July 1943 the Respondent be-
came a member of C. P. & G., an organization for the purpose of handling labor
relations for and on behalf of its member packing companies, hereinafter called
the members, and as such member subscribed to the agreements negotiated
thereafter between C. P. & G. and the AFL. The last of the contracts so ne-
gotiated by C. P. & G. was by its terms to expire on March 1, 1946.
On August 7, 1945, Cannery and Food Process Workers Council of the Pacific
Coast, then an independent labor organization, filed with the Board a Petition for
Certification alleging that a question had arisen concerning representation
among the Respondent's employees, and naming both Cannery and Food Process
Workers Union of the Sacramento area and "Teamsters, Chauffeurs, Ware-
housemen and Helpers of America, AFL," as claiming representation in the
appropriate unit, refined in the Petition as "all employees of the above named
Company" excluding clerical and supervisory employees. This proceeding en-
titled "In the Matter of Lincoln Packing Company and Cannery and Food
Process Workers Union of Sacramento area, affiliated with Cannery and Food
Process Workers Council of the Pacific Coast", became Case No. 20-R-1452.
After many other Petitions had been filed by various and sundry unions in-
volving many other companies engaged in the canning of fruits and vegetables,
some of which, like the Respondent, were members of C. P. & G. and some of which
were non-members of C. P. & G., hereinafter called the Independents, all such
cases were consolidated by Order of the Board dated August 22, 1945 2 Hearings
were held in these consolidated proceedings, at which the Respondent was
represented by counsel for C. P. & G.
On October 5, 1945, the Board issued a telegraphic order of Direction of
Election in the "Bercut-Richards" case. In this order the Board found that
"all production and maintenance employees of members of California Processors
and Growers, Inc., excluding" certain named categories of employees, con-
stituted a single appropriate unit and ordered an election to be held among
such employees to determine the question of representation. In the same tele-
graphic order the Board further found that the same classes of employees em-
ployed by each of the Independents constituted individual, separate appropriate
units and ordered individual elections held therein. The Respondent was not
individually named in the body of the order but was clearly included therein
among the members of C. P. & G. This telegraphic order stated that it would
be followed by a written Board order.
On October 9, 1945, the Respondent withdrew its membership from C. P. & G.
and notified the Regional office of the Board, in San Francisco, thereof on
October 11, 1945.
On October 12, 1945, in compliance with the statement in the telegraphic order
the Board issued its written Order and Direction of Election in' "Bercut-
Richards," this Order being merely a more complete statement than that con-
1 It would not be germane to the issues here involved to trace the historical relationship
between the above-named AFL affiliates.
2 This consolidated proceeding has become known as the "Bercut-Richards case" from
the name of the first company mentioned in the title.
140 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tained in its prior telegraphic order . In this Order the Respondent was listed
as one of member companies of C. P. & G.
On October 12, 1945, the election was conducted by the Board agents among
the Respondent 's employees . Prior to the actual opening of the election at the
Respondent 's plant, Respondent 's Secretary and General Manager , M. C. Gordon,
informed the Board 's agents that he was not sure that the election was sup-
posed to be held due to, the Respondent 's recent withdrawal from C. P. & G.
After telegraphic communication with the Regional Director , it was determined
to hold the election and then to impound the ballots , unopened, until the Board
determined whether the Respondent remained an integral part of the C. P. & G
unit or, by its withdrawal from C. P. & G., became a separate appropriate unit
as had been provided in the case of the Independents . The election was there-
upon held and the ballots impounded awaiting such Board determination.
' Between October 29, 1945, and January 5, 1946, the AFL duly filed objections
to the conduct of the ballot in the several elections affecting employees of
C. P. & G. and of the Independent companies . On January 16, 1945, the Regional
Director issued his Report on Objections in which, among other things, he
recommended that the Respondent 's withdrawal from C. P. & G. be considered
a valid withdrawal therefrom, that the employees of the Respondent be held
to constitute a separate appropriate unit as in the case of the Independents, and
that the ballots theretofore impounded be opened and counted separately.
After oral argument before the Board in Washington, D C , and on February 15,
1946, the Board , with one member dissenting , issued its "Supplemental Decision
and Order"- in the consolidated proceeding in which, after discussing a number
of the objections to the election raised by the AFL, it stated :
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
has 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 . It is of vital importance to the
Board's effectuation of the policies of the Act that the integrity of its pro-
cedures 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 con-
ducted in accordance with our usual standards or under conditions tending
to create confidence in the result or to lay the foundation for satisfactory
bargaining . We are 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 reluctance because it means that the employees will have no
bargaining representative to negotiate an 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 AFL contract will
expire on March 1, and since the legal effect of the foregoing determination
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 ," the employers
14 "See Matter of Midwest Piping & Supply Co., Inc , 63 N. L . R. B. 1060. See also
Matter of Ken -Rad Tube & Lamp Corporation, 62 N. L. R. B 21."
LINCOLN PACKING COMPANY 141'
may not pending a new election, give preferential treatment to any of the,
labor organizations involved, although they may recognize each one as the
representative 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; the inclusion of any such provision
in any new agreements, or action pursuant thereto, would clearly be con-
trary to the proviso in Subsection 8 (3). Nothing in our decision, however,
should be construed as requiring any change in the substantive conditions
of employment 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
mail ballots as well as by the manual method, provided the feasibility of
this procedure, with adequate safeguards, can be demonstrated by the sub-
mission of data not incorporated in the present record. As an alternative,
the Board will consider holding a new manual election as early in the 1946
season as there is substantial reemployment.
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 the 25-day eligibility rule and the action taken respecting employ-
ees "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.
ORDER
IT IS HEREBY ORDERED that the elections held from October 11 to December
20, 1945, inclusive, among the employees of members of C. P. & G. and
among the` employees of the Independent Companies be, and they hereby
are, vacated and set aside.
Signed at Washington, D. C., this 15th day of February 1946.$
The Respondent acknowledges that it received a copy of this "Supplemental
Decision and Order" in due course of the mail.
On or about November 20, 1945, the Respondent signed a memorandum of
agreement with AFL. Respondent's General Manager could not recall the con-
tents of this document at the hearing but thought "it was due to reclassifications
and wages." No further evidence of its contents was presented at the hearing.
On February 25, 1946, the Respondent received a registered letter from the
President of FTA-CIO, which quoted verbatim from the Board's "Supplemental
Decision and Order" dated February 15, 1946, the third and fourth paragraphs
quoted hereinbefore.
$ Italics supplied.
142 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Two days thereafter, on February 27, 1946, the Respondent and AFL executed
the following contract :
This MEMORANDUM OF AGREEMENT, made and entered into this
twenty-seventh day of February, 1946, by and between LINCOLN PACKING
CO., located at Lincoln, California, hereinafter referred to as Employer,
CALIFORNIA STATE COUNCIL OF CANNERY UNIONS, A. F. of L., and
CANNERY WORKERS' LNION LOCAL 857 INTERNATIONAL BROTH-
ERHOOD 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 employees 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 unemployed
members of the local Union shall be required to present a clearance 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 retro-
active to that date.
In witness whereof, the parties hereto have caused this Memorandum to
be signed by their duly authorized officers this 27th day'of Feb. 1946.
LINCOLN PACKING CO.,
By M. C. GORDON,
CALIFORNIA STATE COUNCIL OF UNIONS, A. F. OF L.,
By ----------------------------- ----------
CANNERY WORKERS' UNION LOCAL 857,
By GEORGE COLE.
On or about March 19 representatives of FTA-CIO called upon the Respondent
requesting a contract. M. C. Gordon for the Respondent indicated that he would
be willing to execute an agreement with FTA-CIO if FTA-CIO would give proof
of some representation in the plant. After PTA-CIO representatives inquired if
the Respondent had executed an agreement with AFL and discovered that it had,
they inquired how it would be possible in view of such exclusive agreement
with AFL, for the Respondent to execute another agreement with FTA-CIO.
There was some talk about the illegality of AFL's contract." FTA-CIO offered
no showing of representation stating that its cards were in its Sacramento office.
No agreement was ever signed between these parties.
4 The details of this conversation as testified to by FTA-CIO representative and Gordon
are in conflict but which the undersigned does not find necessary to resolve.
LINCOLN PACKING COMPANY 143
2. Defenses and Arguments
The facts above found are conceded by all parties . Under these facts the
Respondent and AFL have alleged a number of defenses and argued a number
of other points.
First, the Respondent contends that neither the Board 's Direction of Election
or Supplemental Decision and Order applied to it because , after its withdrawal
from membership in CP & G, it was not included in those orders under the CP & G
membership nor mentioned in the individual enumeration of Independents and
hence there was nothing pertaining to it in either order . As a corrollary to this
the Respondent further contends that there was no question of representation
pending before the Board as to its employees . These arguments are highly
technical and completely overlook the fact that at the time of the telegraphic
Order of October 5, 1945, of which the written Order of October 12 was merely
confirmation, Respondent was still a member of CP & G and hence bound by
that portion of the Order . They also ignore the fact that the October 12
Order names the Respondent specifically as a member of CP & G and the February
15, 1946, Order , contains the following language:
The ballots in this election [ Lincoln Packing Company ] in which there
were apparently no challenged ballots, have not been counted but -have
been impounded , pending a determination of the questions as to whether
the employees of Inncoln Packing Company should be included in the CP
d G unit or should constitute a separate appropriate unit. ( Italics added.)
It is therefore obvious that these Orders did apply to the Respondent and that
both the question of the appropriate unit and the question of majority therein
were still pending and undecided before the Board , the agency which by law had
the exclusive jurisdiction to determine such questions.
The Respondent and AFL both plead that the directive contained in the Sup-
plemental Decision and Order dated February 15, 1946, against the execution of
exclusive agreements with either of the competing unions either did not apply to
the Respondent or was illegal . The first part of this contention has been an-
swered. The latter part of the argument is without merit since it has long been
established law that during the pendency of a representation question before the
Board an employer is bound to maintain strict neutrality and not to interfere by
any means with the selection of representatives of the employees own choosing.
The Respondent and AFL strongly argue that in the instant case the Respondent
was bound by the Act to bargain exclusively with the AFL as all 24 of its then
employees were members of AFL and had authorized the Respondent in writing
to check-off their dues to AFL and that the contract of February 27, 1946, was
legal under the closed shop proviso of Section 8 ( 3) which permits closed shop
agreements "if such labor organization is the representative of the employees as
provided in Section 9 (a), in the appropriate unit covered by such agreement
when made ." From the pleadings of AFL and CP & G as well as the oral argu-
ment made by Respondent ' s counsel at the hearing , as well as from the facts, the
proviso clause clearly does not cover this agreement for both the question of the
appropriate unit and the question of majority were still pending and undecided
before the Board when this agreement was executed . The execution of check-off
authorizations is not determinative of the desires of even these 24 employees for
experience has proved that many employees who will execute such authorizations
144 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
will not vote for the same union as their bargaining agent ° in a secret election
Furthermore, employment was at its lowest ebb at the time the agreement was
signed, as later in the season the Respondent customarily employed as many
as 400 persons, and hence Respondent's determination was made at a time when
it was impossible to secure a representative determination of the question In
executing the agreement of February 27, 1946, the Respondent arrogated unto
itself the determination of the unit question as well as the question of majority
therein, both questions which, under the circumstances here disclosed, were
clearly under the exclusive jurisdiction of the Board. Moreover, it did this at
a time when it knew that these very questions were pending and undecided by
the Board and also at a time when it is incumbent upon the employer to maintain
strict neutrality between competing unions, especially in the canning industry
in California where bitterness and intense rivalry exists between the competing
factions. Indeed the machinery of the Board was created for the express purpose
of impartially determining the precise questions at issue, in older to eliminate
the necessity of an employer having to make such decisions The Act, far from
requiring the Respondent here to bargain with the AFL on February 27, required
that it should refrain from so doing until after the Board's determination of
the appropriate bargaining unit and the Board's election process to determine
the true wishes of the employees.
AFL and C. P. & G. contend that the instant proceeding is prematurely brought
and should wait until after the Board has ruled upon whether, after Respondent's
withdrawal from C. P & G. its employees remained a part of the C P & G unit or
became a separate appropriate unit. As the Board ruled in its Supplemental
Decision and Order that the bailors of the employees of the Respondent would
remain impounded, pending determination of the unit question raised by Respond-
ent's withdrawal from C. P. & G, it is obvious that the Board would not dismiss
the Petition involving this Respondent. The instant proceeding was brought to
test the legality of the February 27 agreement and to determine whether or not
said agreement interfered with, restrained, and coerced the employees of the
Respondent in their free choice of'a bargaining agent. The requirement that
the employees enjoy complete freedom of choice in the selection of a bargaining
agent remains the same whether it is ultimately determined that the employees
remain a part of the C. P. & G. unit or constitute a separate appropriate unit.
Hence the determination of the unit question does not affect the issues here.
AFL further argues that, as AFL has been the bargaining agent for these
employees for a number of years, it remained such representative until another
-agent was certified and hence it had the right to renew the relationship which
was then in existence. This argument is based upon the presumption that a
majority once established continues until the certification of another union.
But this does not mean that, in the face of conflicting representation claims by
rival unions and the assumption of jurisdiction over the dispute by the Board,
an employer can, with impunity, and before a decision by the Board, make a
new exclusive bargaining agreement upon the expiration of the old.
5 The majority of the authorizations are dated in July 1945 and are checked-off for the
Cannery Workers Union, Local 20324, a directly chartered union of the A F of L The
agreement of February 27, 1946, is made with California State Council of Cannery Unions,
A F of L. and Cannery Workers' Union, Local 857, affiliated with the International
Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers, A F of L Theme is
evidence in the record of dissatisfaction of some of the Respondent's employees with the
conferring by the A. F. of L. of jurisdiction over the cannery workers to the Teanictems.
The record indicates that at about this time an independent union came into the picture
known as Cannery and Food Process Workers Union of Sacramento Area and it filed a
petition for Investigation and Certification of representatives with the Board on, Jui^ 4,
1945, claiming to represent a majority of the employees of the Respondent nm a unit
composed of all of the Respondents employees excluding cleiicai and supervisomy enmpiv}ees.
LINCOLN PACKING COMPANY 145
AFL also pleaded that, by including the above-mentioned directive against
exclusive agreements in its Supplemental Decision and Order, the Board has
prejudged the instant case and is thereby precluded from sitting. This defense
is frivolous for the Board merely reiterated a well known rule of law in its
opinion. If such argument should prevail, then no court or agency which ever
quoted well established law would be competent to sit on any violation of that
law.
Therefore the undersigned holds the pleaded defenses to be without merit.
3. Concluding Findings
On October 5, 1945, the Board ordered elections to be conducted in the Bercut
Richards consolidated cases which included Case No 20-R-1452 which involved
the employees of the Respondent. The Board there found two general types
of appropriate units : (1) the employees of member companies of C. P. & G.
of which the Respondent at that time was one, and (2) the employees of the
Independent Canneries as separate appropriate units. Respondent's employees
as of this date were clearly in the first unit. The fact that the Respondent
subsequently withdrew from membership in C. P. & G and notified the Board
thereon 1 day before the election was insufficient to void the Board's Order
and could only suffice as a request to the Board for a change of decision as to,
the appropriate unit. The Board recognized this change by impounding the
ballots of the employees of the Respondent pending is final decision on the
unit question. The fact that the written Order of the Board confirming the
above-mentioned telegraphic Order of October 5, 1945, was issued 1 day sub-
sequent to receipt of notice by the Board's Regional Office of Respondent's with-.
drawal from C. P. & G. cannot affect the binding effect of the Order on the
Respondent as contended by Respondent in its brief.
On February 15, 1946, the Board voided all the elections held under its
Orders of October 5 and 12, 1945, because of fear that the employees had not
been given the opportunity to freely express their choice of representatives.
On February 27, 1946, the Respondent well knew that there remained pending
and undecided before the Board the question concerning representation of its
own employees, including both the question of the appropriate unit created by
Respondent's withdrawal from C. P. & G. and the question of which labor
organization, if any, the majority of the employees desired as their bargaining
agent. The Board had exclusive jurisdiction to determine both questions. The
Respondent well knew this from the Supplemental Decision and Order of Feb-
ruary 15, 1946, and from the letter of FTA-CIO received by the Respondent on,
February 25, 1946, quoting pertinent parts of that Decision of the Board. From
these documents Respondent also knew that the Board intended to hold another
election to determine the questions.
This was the situation on February 27, 1946, when the Respondent and AFL.
chose to disregard the exclusive jurisdiction of the Board on those matters by
executing a closed shop agreement requiring that the Respondent's employees
had to be members of AFL as a condition of obtaining and retaining employ-
ment with Respondent. It has long been a well established principle of law
that, pending the Board's investigation and certification of representatives, it
is the duty of an employer to maintain an attitude of strict neutrality between,
the competing labor organizations in order that the representative may be the-
free and untrammeled selection of the employees' own choosing.
By the execution of a new exclusive agreement with AFL at this time, and
under the situation then existing, the Respondent necessarily assisted the AFL
by adding to its prestige and clearly indicating to the employees its intent and
146 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
desire that AFL should be selected as the bargaining representative. By the
closed shop terms of the agreement the Respondent necessarily coerced its
employees and interfered with their free choice of representatives by forcing
them into membership in AFL as a condition of employment. This necessarily
encouraged membership in AFL and discouraged membership in FTA-CIO at
a time when it was incumbent upon the Respondent to allow its employees to
choose their own representative without coercion and interference from the
employer. Under these conditions the agreement of February 27, 1946, was
clearly illegal and void as violative of Section 8 (1) and (3) of the Act:
The undersigned finds that the Respondent, by executing a closed shop agree-
ment with one of three competing labor organizations at a time when a question
of representation involving its employees is pending and undecided before the
Board, interfered with, restrained, and coerced its employees in the exercise
of the rights guaranteed in Section 7 of the Act in violation of Section 8 (1) of
the Act, and has discriminated in regard to their terms and conditions of em-
ployment, thereby encouraging membership in AFL and discouraging member-
ship in FTA-CIO, in violation of Section 8 (3) of the Act.
Iv. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in Section III, above, occurring in
connection with the operations of the Respondent 's business described in Section
I, above, have a close, intimate, and substantial relation to trade, traffic, and
commerce among the several States, and tend to lead to labor disputes burdening
and obstructing commerce and the free flow of commerce.
v. THE REMEDY
Having found that the Respondent has engaged in certain unfair labor prac-
tices within the meaning of the Act, the undersigned will recommend that it
cease and desist therefrom and take certain affirmative action designed to
effectuate the policies of the Act.
It has been found that the Respondent has unawfully assisted the AFL and
interfered with FTA-CIO by recognizing and entering into a closed-shop agree-
ment with the AFL as the exclusive representative of its employees. It is
obvious that no free selection of a bargaining representative can be made while
an agreement containing such terms remains in effect while the question con-
cerning representation remains pending and undecided before the Board. In
Order to restore to the employees of the Respondent their freedom of selection,
it is necessary that the Respondent cease and desist from recognizing the AFL
as such exclusive representative and that it cease and desist from requiring
membership in the AFL as a condition of retention of employment unless and
until the AFL has been certified as such representative by the Board. Since
the contract of February 27, 1946, perpetuates the Respondent's unlawful assist-
ance to the AFL and precludes the employees from exercising their right to
select a bargaining representative of their own choice, it shall be recommended
that the Respondent cease giving effect to said contract or to any extension,
renewal, modification, or supplement thereof, unless and until the AFL shall be
certified by the Board as the exclusive representative of the Respondent's em-
ployees. Nothing herein, however, shall be construed as requiring the Respond-
ent to vary any wage, hour, seniority, or other substantive features of its re-
lations with the employees themselves which the Respondent has established in
the performance of this contract or to prejudice the assertion of the employees
of any rights they may have under such an agreement.
Upon the foregoing findings of the fact and upon the entire record in this case,
the undersigned makes the following:
LINCOLN PACKING COMPANY 147
CONCLUSIONS OF LAW
1 Food , Tobacco, Agricultural and Allied Workers Union of America, CIO,
International Brotherhood of Teamsters, Chauffeurs , Warehousemen and Helpers
of America , AFL, and California State Council of Cannery Unions , AFL, are
labor organizations within the meaning of Section 2 ( 5) of the Act.
2. By interfering with, restraining , and coercing its employees in the exercise
of the rights guaranteed in Section 7 of the Act , the Respondent has engaged in
and is engaging in unfair labor practices within the meaning of Section 8 (1) of
the Act.
3. 'By discriminating in regard to the terms and conditions of employment of
its employees by the terms of the agreement dated February 27, 1946, with AFL,
thereby encouraging membership in AFL and discouraging membership in FTA-
CIO, the Respondent has engaged in and is engaging in unfair labor practices
within the meaning of Section 8 ( 3) of the Act.
4 The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2 ( 6) and ( 7) of the Act.
RECOMMENDATIONS
Upon the basis of the foregoing findings of fact and conclusions of law, the
undersigned recommends that the Respondent , Lincoln Packing Company, its
officers, agents, successors, and assigns shall:
1. Cease and desist from :
(a) Recognizing the International Brotherhood of Teamsters , Chauffeurs,
Warehousemen and Helpers of America, AFL, and California State Council of
Cannery Unions, AFL, as the exclusive representatives of its employees for the
piu poses 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 February 27, 1946, with the Inter-
national Brotherhood of Teamsters , Chauffeurs, Warehousemen and Helpers of
America, AFL, and California State Council of Cannery©Unions, AFL, or to any
extension , renewal, modification or supplement thereof, or to any superseding con-
tiact with those labor organizations or any labor organization or affiliate thereof
unless and until said organizations, or either of them, shall be certified by the
Board as the representative of the Respondent's employees ;
(c) In any like or related manner interfering with, restraining , or coercing
its employees in the exercise of the right to self-organization, to form labori
oiganizations, to join or assist Food, Tobacco, Agricultural and Allied Workers
Union of America, CIO, or any other organization, to bargain collectively through
representatives of their own choosing and to engage in concerted activities for
the purposes of collective bargaining or other mutual aid or protection as guar-
anteed in Section 7 of the Act ;
(d) In any like or related manner encouraging membership in the International
Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America,
AFL, and California State Council of Cannery Unions, AFL, or discouraging
membership in the Food, Tobacco, Agricultural and Allied Workers Union of
America, CIO, or any other labor organization of its employees, by discriminating
in regard to any term or condition of employment of any of its employees.
2 Take the following affirmative action which the undersigned finds will
effectuate the policies of the Act :
(a) Withdraw and withhold all recognition from the International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, AFL,
and California State Council of Cannery Unions, AFL, as the exclusive repre-
sentatives of its employeees for the purposes of collective bargaining with re-
712344-47-vol 70-11
148 DECISIONS OF NATIONAL LABOR - RELATIONS BOARD-
spect 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 representative of
such employees ;
(b) Post at its plant at Lincoln, California, copies of the notice attached
hereto marked "Appendix A."- Copies of said notice, to be furnished by the
Regional Director for the Twentieth Region, after being duly signed by Re-
spondent's representative, shall 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 cus-
tomarily posted Reasonable steps shall be taken by the Respondent to insure
that said notices are not altered, defaced or co\ered by any othermaterial;•
(c) Notify the Regional Director for the Twentieth Region, in writing, within
ten (10) days from the date of the receipt of this Intermediate Report, what
steps the Respondent has taken to comply therewith.
It is further recommended that unless on or before ten (10) days from the
receipt of this Intermediate Report, the Respondent notifies said Regional
Director in writing that it will comply with the foregoing recommendations,
the National Labor Relations Board issue an order requiring the Respondent
to take the action aforesaid.
As provided in Section 33 of Article II of the Rules and Regulations of the
National Labor Relations Board, Series 3, as 'amended, effective November 27,
1945, any party or counsel for the Board may, within fifteen (15) days from the
date of the entry of the order transferring the case, to the Board, pursuant to
Section 32- of Article 11 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 a brief in support thereof.' Immediately upon the filing of such state-
ment of exceptions and/or brief, the party or counsel for the Board tiling the
same shall serve a copyv-hereof 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
THObmAs S WILSON,
Trial Fwanil ner
Dated April 18, 1946.
APPENDIX A
NOTICE TO ALL EMP).o1EEs
Pursuant to the reconmmendations of a Trial Examiner-of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that :
WE wiLL NOT recognize the Cannery Workers Union, Local 857, Interna-
tional Brotherhood of Teamsters,; Chauffeurs, Warehousemen, and Helpers
of America, AFL, and/or California State Council of Cannery Unions, AFL,
and/or any of them, as the exclusive representative of any of our em-
ployees for the purposes of collective bargaining, unless and until said
organizations, or either of them, shall have been certified by the Board as
the representative of such employees.
LINCOLN PACKING COMPANY 149
WE WILL NOT give effect to our contract dated February 27, 1946, with
California State Council of Cannery Unions, AFL, and Cannery Workers
Union, Local 857, International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, AFL, or to any extension, renewal
modification or supplement thereof, or Ito any superseding contract with
said labor organizations, or either of them, unless and until said organiza-
tions, or either of them, shall have been certified by the Board as the repre-
sentative of the employees of this company.
WE WILL NOT in any like or related manner interfere with, restrain, or
coerce our employees in the exercise of their right to self-organization, to
form labor organizations, to join or assist Food, Tobacco, Agricultural and
Allied Workers Union of America, CIO, or any other-labor organization, to
bargain collectively through representatives of their own choosing, and to
engage in concerted activities for the purposes of collective bargaining or
other mutual aid- or protection.
All our employees are free to become or remain members of the Food, Tobacco,
Agricultural and Allied Workers of America, CIO, or any other labor organiza-
tion. We will not discriminate in regard to any term or condition of employment
against any employee because of membership in or activities on behalf of any
such labor organization.
LINCOLN PACKING COMPANY,
B. ------------------ ----------
(Representative) (Title)
Dated------------------------------
This notice must remain posted for 60 days from the date hereof, and must uof
be altered , defaced, or covered by any other material.