Califruit Canning Co.

National Labor Relations Board - Board Decisions

Jul 8, 1948

78 N.L.R.B. 112 (N.L.R.B. 1948)

In the Matter of FRED VOLANDRI, DING VOLANDRI AND S. MONTANELLI,,
D/B/A CALIFRUIT CANNING COMPANY and FOOD, TOBACCO, AGRICUL-
TURAL & ALLIED WORKERS UNION OF AMERICA, CIO acid INTERNA-
TIONAL BROTHERHOOD OF TEAMSTERS, C13AUFFEURS, WAREHOUSEMEN
AND HELPERS OF AMERICA, AFL, AND CALIFORNIA STATE COUNCIL OF
CANNERY UNIONS, AFL, AND CANNERY WORKERS, PROCESSORS,
WAREIIOUSEMEN AND HELPERS, LOCAL UNION No. 601
Case No. 20-C-1566.-Decided July 8, 1948
Mr. Thomas J. Davis, Jr., for the Board.
Mr. J. Paul St. Sure, by Mr. Edward H. Moore, of Oakland Calif.,
for the Respondents.
Tobriner d Lazarus, by Mr. Mathew 0. Tobriner, of San Francisco,
Calif., for the AFL.
Gladstein, Andersen, Renner, Sawyer cC Edises, by Mr. Bertram
Edises, of San Francisco, Calif., and Mr. Steve Murdock, of San Jose,
Calif., for the FTA-CIO.
DECISION
AND
ORDER
On May 19, 1947, Trial Examiner Sidney L. Feiler issued his Inter-
mediate Report in the above-entitled proceeding, finding that the Re-
spondents had engaged in and were engaging in certain unfair labor
practices and recommending that they cease and desist therefrom and
take certain affirmative action, as set forth in the copy of the Inter-
mediate Report attached hereto., Thereafter the Respondents and
AFL filed exceptions to the Intermediate Report and supporting
briefs.
The Board 2 has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the Inter-
1 Section 8 (1), 8 (3), and 8 (5) of the National Labor Relations Act, which the Trial
Examiner found were violated, are continued in Section 8 (a) (1), 8 (a) (3). and 8 (a) (5)
of the Act as amended by the Labor Management Relations Act, 1947
'Pursuant to the provisions of Section 3 (b) of the Act. the Board has delegated its
power in connection with this case to a three -man panel consisting of Chairman Herzog and
Members Houston and Reynolds.
78 N. L H B,No.22
112
CALIFRUIT CANNIN' COMPANY 113
mediate Report, the exceptions and briefs and the entire record in the
case, and hereby adopts the findings, conclusions , and recommenda-
tions of the Trial Examiner , with the following modifications and ad-
ditions.
1. At the hearing , upon motion by counsel for the Board , the Trial
Examiner , over objections by the AFL and Respondents , permitted
.amendment of the complaint to include the general allegation of coer-
acive check -off of employees ' AFL dues.3 The Respondents and AFL
urged that the issue of coercive AFL dues collection by Respondents
during the period here concerned had been litigated and decided in a
previous case.4 There the Board found that the Respondent ille-
gally facilitated the collection of AFL dues, but that the evidence was
insufficient to establish that an illegal check-off was one of the methods
so employed . In these circumstances we do not feel that it will effec-
tuate the purposes of the Act further to consider the manner in which
the collection of AFL dues was facilitated . Accordingly , we hereby
strike paragraph 4 (b) from the complaint , as amended , without pass-
ing upon the Trial Examiner 's findings , conclusions and recommen-
dations.
2. The Trial Examiner found, and we agree, that the Respondents
discriminatorily discharged Walter and Pahnira Fender in violation
of the Act . With respect to Walter Fender , as fully set forth in the
Intermediate Report, the Respondents permitted a situation to develop
in which Fender was led by them to believe that the AFL spoke with
authority concerning his right to continued employment. He had
been expressly informed by the Respondents Dino and Fred Volandri
that he would have to remain in good standing with AFL to retain
his employment . Thereafter , when a group of AFL representatives
demanded Fender's discharge , Dino Volandri permitted them to enter
the plant to serve notice on Fender that lie was no longer an AFL
member in good stanclnig . In addition to serving the notice , the group
informed Fender that he was to leave immediately without finishing
the work he was doing , or be ejected . Fender in accordance with
their order left immediately. Although his departure may have been
voluntary by some standards , it is quite clear that it was impelled by
Respondents ' conduct toward the AFL and by Fender's knowledge
that his lack of good standing with the AFL would make his further
employment impossible.,'
'T'aiagiaph 4 (h) of the complaint, as amended, alleged that the Respondents "urged,
persuaded and coerced Walter Fender and Frederick Escalante and its other employees to
paw dues to the AFL by means of check-off and by other means "
a 7.i N L It R 290
6 Cf Matto of G Ii' Hume Company, 71 N L R B 533, 549
114 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
With respect to Palmira Fender; the wife of Walter Fender, the
evidence is clear that her discharge was also brought about in submis-
sion to pressure by the AFL.e There was credited testimony to the
effect that Respondent Fred Volandri said on the occasion of Pal-
inira Fender's discharge, "They told me to take you and your hus-
band out of here for my own good; but hell-my own good; I need you
now ! Why didn't they tell me that before we started the season?"
Further, the effort to explain the discharge on a non -discriminatory
basis is rendered unconvincing, not only by confusion in Respondents'
testimony in that regard, but by Respondent Montanelli's statement at
the time of Palmira Fender's discharge that up to the time of the
discharge she had done nothing wrong. Additionally, the prestige
which Walter Fender, an outspoken adversary of AFL, may have inci-
dentally possessed by virtue of being the husband of the supervisor
of all women employed in the plant, furnishes a readily perceptible
motive for the AFL to seek Palmira Fender's discharge.7 Her dis-
charge in submission to pressure by the AFL would clearly have the
desired effect of encouraging membership in that organization.
We agree with the Trial Examiner that Palmira Fender should
be reinstated with back pay, and we shall so order."
ORDER
Upon the entire record in the case, and pursuant to Section 10 (c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondents Fred Volandri,.
Dino Volandri, and S. Montanelli, copartners, doing business under the
firm name and style of Califruit Canning Company, and their agents,
successors, and assigns shall :
1. Cease and desist from :
(a) Discouraging membership in Food, Tobacco, Agricultural &
Allied Workers Union of America, affiliated with the Congress of In-
dustrial Organizations, or any other labor organization of their em-
ployees by laying off, discharging or refusing to reinstate any of their
employees and from refusing to employ any member of that union or in
any other manner discriminating in regard to hire and tenure of em-
ployment or any term or condition of employment;
9 Fear of economic reprisal is no defense to an employer 's violation of the Act N. L. R B.
V. Gluck Brewing Co., 144 F. (2d) 847, 853 and cases there cited.
I Discrimination against a wife because of the union activities of her husband has been,
held violative of Section 8 (3) of the Act. Matter of Texas Textile Mills , 58 N L. R. B.
352, 372 ; Matter of Union Buffalo Mills Company , 58 N L R B 384, 390'.
8 The Board has held that notwithstanding the exclusion of supervisors from the coverage
of the Act as amended , it retains the authority to order reinstatement of supervisory em-
ployees discriminated against in violation of the Act in force at the time of the discrimina-
tion. Matter of Republic Steel Corporation, 77 N. L. R. B. 1107.
CALIFRUIT CANNING COMPANY 115
(b) Refusing to bargain collectively with Food, Tobacco, Agricul-
tural & Allied Workers Union of America, affiliated with Congress of
Industrial Organizations, if and when said labor organization shall_
have complied within 30 days from the date of this Order, with Sec-
tion 9 (f), (g), and (h) of the Act, as amended, as the exclusive repre-
sentative of all their production and maintenance employees, exclusive
of office and clerical employees and supervisors, with respect to rates of
pay, wages, hours of employment, or other conditions of employment;
(c) In any other manner interfering with, restraining, or coercing
their employees in the exercise of their right to self-organization, to
form labor organizations, to join or assist Food, Tobacco, Agricultural
& Allied Workers Union of America, affiliated with the Congress of
Industrial Organizations, 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.
2. Take the following affirmative action, which the Board finds will
effectuate the policies of the Act :
(a) Offer Palmira Fender immediate and full reinstatement to per-
former or a substantially equivalent position, without prejudice to her-
seniority and other rights and privileges;
(b) Make whole Palmira Fender and Walter Fender for any loss of
pay they may have suffered by reason of the Respondents' discrimina-
tion against them by payment to each of them a sum of money equal
to an amount determined in the manner set forth in the section of the
Intermediate Report entitled "The Remedy";
(c) Upon request, and upon compliance by the union with the filing -
requirements of the Act, as amended, in the manner set forth above,
bargain collectively with Food, Tobacco, Agricultural & Allied Work-
ers Union of America, affiliated with Congress of Industrial Organi-
zations,as the exclusive representative of all their production and
maintenance employees, excluding office and clerical employees and
supervisors, in respect to rates of pay, wages, hours of employment,
and other conditions of employment, and if an understanding is
reached, embody such understanding in a signed agreement;
(d) Post in the Respondents' plant at Manteca, California, copies
of the notice attached hereto and marked "Appendix A." 9 Copies of
said notice, to be furnished by the Regional Director for the Twentieth
Region, shall, after being duly signed by the Respondents or their -
I In the event that this Order is enforced by decree of a Circuit Court of Appeals, there
shall be inserted , before the words "A DECISION AND ORDER" the words "DECREE OF
THE UNITED STATES CIRCUIT COURT OF APPEALS ENFORCING "
116 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
representatives , be posted by the Respondents immediately upon re-
ceipt thereof and be maintained by them for at least sixty ( 60) con-
secutive days thereafter , in conspicuous places, including all places
where notices to employees are customarily posted. Reasonable steps
shall be taken by the Respondents to insure that such 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) days from the date of this Order, what steps the
Respondents have taken to comply herewith.
CHAIRMAN HERZOG took no part in the consideration of the above
Decision and Order.
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that:
WE WILL NOT in any manner interfere with, restrain, or caerce
our employees in the exercise of their right to self -orgainzation. to
form labor organizations, to join or assist FooD, TOBACCO, AGRI-
CULTURAL & ALLIED WORKERS UNION OF AMERICA, CIO, or any
other labor organization, to bargain collectively through repre-
sentatives of their own choosing, and to engage in concerted
activities for the purpose of collective bargaining or other mutual
aid or protection.
WE WILL OFFER to the employees named below 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 them whole for any loss
of pay suffered as a result of the discrimination.
WE WILL BARGAIN collectively upon request with the above-
named union as the exclusive representative of all employees
in the bargaining unit described herein with respect to rates of
pay, hours of employment or other conditions of employment,
and if an understanding is reached, embody such understanding
in a signed agreement. The bargaining unit 'Is:
All production and maintenance employees, excluding office
and clerical employees and all supervisory employees with
authority to hire, promote, discharge, discipline, or otherwise
effect changes in the status of employees or effectively recom-
mend such action.
CALIFRUIT CANNING COMPANY 117
EMPLOYEE TO BE REINSTATED
Palmira Fender
EMPLOYEES TO RECEIVE BACK PAY
Palmira Fender
Walter Fender
All our employees are free to become or remain members of the
above-named union or any other labor organization. We will not
discriminate in regard to hire or tenure of employment or any term or
condition of employment against any employee because of membership
in or activity on behalf of any such labor organization.
FRED VOLANDRI , DINO VOLANDRI and S. MONTANELLI,
d/ib/a/ CALIFRUIT CANNING COMPANY,
Employer.
Dated ---------------- By ----------------------------------
(Representative ) ( 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 dis-
charge 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.
INTERMEDIATE REPORT
Mr. Thomas J Davis, Jr, for the Board.
Mr. J. Paul St Sure, by Mr. Edward M. Moore, of Oakland, Calif, for the
respondents.
Tobriner & Lazarus, by Mr. Mathew 0. Tobrvner, of San Francisco, Calif., for
the AFL.
Gladstean, Andersen, Resner, Sawyer & Edises, by Mr. Bertram Edises, of Sari
Francisco, Calif, and Mr. Steve Mai dock, of San Jose, Calif., for the FTA-CIO.
STATEMENT OF THE CASE
Upon an amended charge duly filed by Food, Tobacco, Agricultural & Allied
Workers Union of America, CIO, herein called FTA-CIO, the National Labor
Relations Board, herein called the Board, by its Regional Director for the
Twentieth Region (San Francisco, California), issued its complaint dated Decem-
ber 3, 1946, against Fred Volandri, Dino Volandri, and S. Montanelh, co-partners,
doing business tinder the firm name and style of Califruit Canning Company,
Manteca, California, herein called the respondents, alleging that the respondents
had engaged in and were engaging in unfair labor practices affecting commerce
within the meaning of Section 8 (1), (3) and (5) 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 duty served upon the
respondents, the FTA-CIO, and ' Internationale Brotherhood , of Teamsters,
Chauffeurs, Warehousemen and Helpers of America; AFL, and California State
798767-48-vol 78 9
118 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Council of Cannery Unions, AFL, and Cannery Workers, Processors, Warehouse-
men arid Helpers, Local Union No 601, herein jointly and severally called the
AFL, parties to the contract.
With respect to unfair labor practices, the complaint alleged that the re-
spondents since approximately April 1, 1946, urged, persuaded, and warned
Walter Fender, an employee, not to become or remain a member of FTA-CIO
and urged, persuaded, and coerced lum to,pay dues to the AFL ; discharged Walter
Fender, Palmira Fender, and Frederick Escalante and refused to reinstate
them because of their union member ship and activities on behalf of FTA-CIO
and their failure to become or remain members of the AFL and pay clues therein ;
and refused since October 2, 1946, to bargain with FTA-CIO as the duly certified
collective bargaining representative of its employees in an appropriate unit.
The respondents in their answer, dated December 16, 1946, admitted the
jurisdictional allegations in the complaint, denied the allegations as to the
alleged wrongful discharges, the alleged assistance to the AFL, and the alleged
interference with the FTA-CIO ; and denied that the unit set forth in the com-
plaint was an appropriate one. The answer also alleges that the acts performed
by them have been pursuant to the ter ms of a valid closed-shop contract with
the AFL. '
The AFL filed an answer dated December 16, 1946 In its answer, the AFL
denied that the respondents were guilty of any unfair labor practices with respect
to Walter Fender, Palmira Fender, and Frederick Escalante, alleged that the
certification of the FTA-CIO was not operative until after the expiration of an
existing contract between the respondents and the AFL ; and set forth as a
separate defense that charges as to the dismissal of Palmira and Walter Fender
had been heard and dismissed in a prior proceeding
Pursuant to notice, a hearing was held at Manteca, California, on December
17, 18, and 19, 1946, before the undersigned, Sidney L Feller, the Trial Examiner
designated by the Chief Trial Examiner. The Board, the respondents, and the
AFL were represented by counsel The FTA-CIO appeared by counsel and a
representative. Full opportunity to be heard, to examine and cross-examine
witnesses, and to introduce evidence bearing on the issues was afforded all
parties.
At the beginning of the hearing, the Board moved to amend the complaint,
Paragraph 4, subparagraph B, to read as follows :
urged. persuaded, and coerced Walter Fender and Frederick Escalante and
its other employees to pay dues to the A F of L by means of checkoff and
by other means.
The respondents and the AFL objected to the proposed amendments The specific
objections will be dealt with in detail hereinafter. After hearing argument, the
undersigned granted the motion to amend, but indicated that he would entertain
an application later in the hearing for additional time to prepare pleadings to
the amendment, evidence, or both No such request was made, the objecting par-
ties relying on their oral objections No pleadings were filed as to the amendment.
After all the testimony had been presented, the parties were =afforded an op-
portunity to present oral argument, but all parties waived argument. A date
was then set for the filing of briefs and/or proposed findings of fact and con-
clusions of law. Briefs were received from the Board, the respondents, and
the AFL.
Upon the entire record in the case. and frofn his observation of the witnesses,
the undersigned makes the following:
CALIFRUIT CANNING COMPANY 119
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENTS
The respondents , Fred Volandri , Dino Volandri , and S. Montanelli are co-
partners doing business under the firm name and style of Califruit Canning
Company , having their principal office and place of business at Manteca, Cali-
fornia , where they operate a plant ( hereinafter referred to as the plant) for
the canning and processing of fruits and vegetables . The annual gross sales
of the respondents ' products exceed $100 ,000, of which in excess of 90 percent
constitutes sales of products sold and transported in interstate and foreign com-
merce and from the respondents ' plant to States and territories of the United
States other than the State of California , and to foreign countries . The re-
spondents admit that they are 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
Teamsters, Chauffeurs, Warehousemen and Helpers of America, California State
Council of Cannery Unions, and Cannery Workers, Processors, Warehousemen and
Helpers, Local Union No 601, each affiliated with the American Federation of
Labor, are labor organizations admitting to membership employees of the
respondents.
III. THE UNFAIR LABOR PRACTICES
A. Background
The parties to the present proceeding were also parties in another Board pro-
ceeding in which the respondents were charged with the commission of unfair
labor practices (Case No. 20-C-1428). The hearing therein was held in August
1946 and the Trial Examiner issued his Intermediate Report on October 18, 1946.
The Board, in its decision, adopted his findings, conclusions, and recommendations
with one modification not material herein'
In the instant proceedings, the parties stipulated as a correct statement of
the facts the following material which appears in the afore-mentioned Inter-
mediate Report :
This case stems from the conflicting claims of the FTA-CIO and the
A F. of L. to represent employees of various Independent Companies, as well
as Member Companies of the California Processors and Growers, Inc., gen-
erally referred to in the industry and throughout the proceedings in which
they have been involved as the CP & G The controversy finally culminated
in a series of petitions for investigation and certification of representatives
which were consolidated, and have since been designated as the Bercut-
Richards cases'
The respondents have been engaged in the cannery business since 1942 and,
although not members of the CP & G, but operating as an Independent Com-
pany, have adopted and agreed to be bound by the terms of a collective bar-
gaining agreement between the CP & G and the A. F. of L., as adopted on
June 10, 1941, (amended January 26, 1942 and July 10, 1943), commonly
4 See footnote 1 [See flatter of Bercat-Richards Packing Company, et at, 64
N L R B 133. See also Supplemental Decision and Order, 65 N L R. B 1054 j
1 73 N L R B 290. April 10, 1947
120 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
designated the "Green Book" or Master Agreement. Thus, by a document,
dated July 17, 1944, the respondents entered into a stipulation with the A F.
of L,' acknowledging the existence of a collective bargaining agreement be-
tween the parties identical with the terms of the "Green Book" contract, as
amended, further acknowledging the custom of executing agreements identical
with those negotiated between the CP & G and the A. F. of L, and agreeing
to be bound by the determination of the National War Labor Board for the
Tenth Region, in proceedings entitled "In the Matter of California Processors
and Growers, Inc., and the California State Council of Cannery Unions, A. F.
of L, Case No. 111-7439," and to execute a collective bargaining agreement
embracing the provisions of any directive order issued by the Regional War
Labor Board.
On January 9, 1946, the respondents entered into an agreement with the
A F. of L ,° reaffirming and adopting the terms and provisions of the "Green
Book" contract, as amended, and providing, among other things, for union
security and preferential hiring. This agreement expired in accordance with
its terms on March 1; 1946.
On April 13, 1946, the respondents entered into the agreement with the A. F.
of L., which is directly in issue in these proceedings, and upon which the
respondents rely for justification of their subsequent action.
2. The representation proceedings ; the elections and subsequent action thereon
In the summer of 1945, a number of petitions for investigation and certifica-
tion of representatives were filed, alleging that a question affecting commerce
had arisen concerning the representation of employees of Member Companies
of the CP & G and of Independent Companies, including the respondents
herein. The Board, by appropriate proceedings, consolidated these petitions
for hearing which were held between July and September 1945 7
On October 5, 1945, the Board issued a telegraphic order of Decision and
Direction of Elections in the cases so consolidated and, thereafter on October
12, 1945, issued its formal Decision, Direction of Elections and Order, in
which it found that the existing contracts constituted no bar to the proceed-
ings; that all production and maintenance employees, with the conventional
exclusions, of the Member Companies of the CP & G, constituted one appro-
priate unit, and that those of the Independent Companies including the re-
spondents herein, constituted separate appropriate units ; and ordered that
elections be held among each of these units of employees to determine the
question of representation.' Elections were thereupon conducted, pursuant
to the Board's Decision and Direction of Election, between Octcb3r 11 and
8 The contracting unions are therein denominated, "California State Council of
Cannery Unions, and Cannery Workers Union No 20676," the latter being the apparent
predecessor of Cannery Workers, Processors, Warehousemen and Helpeis, Local Union
No. 601.
° [This footnote was excluded from the stipulation.]
7 The petition involving the respondents herein is numbered Case No 20-R-1428.
8 The labor organizations appearing on the ballot in the proceedings involving these
respondents were :
Cannery and Food Process Workers Union of Stockton Area, affiliated with
Cannery and Food Process Workers Council of the Pacific Coast.
California State Council of Cannery Unions, American Federation of Labor.
Food, Tobacco, Agricultural & Allied Workers Union of America, CIO.
CALIFRUIT CANNING COMPANY' 121
October 18, 1945, inclusive,9 with the results, at the respondents' plant, set
out below.10
Thereafter, between October 28, 1945 and January 5, 1946, the A. F. of L.
duly filed objections to the conduct of the elections held among the employees
of the CP & G and of the Independent Companies. On January 16, 1946, the
Regional Director issued his Report on Objections to the elections and, on
February 15, 1946, the Board issued a Supplemental Decision and Order
respecting the consolidated cases, vacating and setting aside the results of the
elections.
The Board, in its Supplemental Decision and Order, stated, in part :
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,14 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 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; 36
the inclusion of such provision in any new agreements, or action pursuant
thereto, would clearly be contrary to the proviso in Sub Section 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."
Except for an election held at one of the companies not here involved.
10Approximate number of eligible voters__________________________________ 136
Valid votes counted___________________________________________________ 101
Votes cast for California State Council of Cannery Unions, A, F. of L-------- 22
Votes cast for F T A -O I. O__________________________________________ 77
Votes cast for Cannery and Food Process Workers Union of Stockton Area,
Independent ------------------------------------------------------- 1
Votes cast against participating labor organizations______________________ 1
Challenged ballots---------------------------------------------------- 0
Void ballots--------------------------------------------------------- 2
14 See Matter of Midwest Piping & Supply Co , Inc., 63 N. L. R. B. 1060 See also
Matter of Ken-Rad Tube & Lamp Corp, 62 N L. R B 21.
15 Moreover, no requests for discharges resulting from activity in the election are
justified under the present agieement. See Matter of Rutland Court Owners, 44
N L R B 587, 46 N L R B 1040
3' The respondents acknowledged that they received a copy of this Supplemental
Decision and Order within the usual course of the mails.
Thereafter, the Board issued a Second Supplemental Decision,' a Third Sup-
plemental Decision and Second Direction of Elections,3 and a Fourth Supple-
mental Decision and Amendment to Second Direction of Elections 4 setting the
time for elections at this plant and others, ruling on the eligibility of certain
categories of employees, the composition of units, and miscellaneous matters.
B. The refusal to bargain
1. The appropriate unit ; representation by the FTA-CIO of a majority therein
Pursuant to the decisions of the Board outlined in the preceding section of
this report , an election to determine the wishes of employees as to collective
2 68 N. L. R. B. 605, June 13, 1946.
3 70 N L. R. B 84, August 16, 1946.
1 70 N. L R. B. 272, August 22, 1946
122 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
bargaining representation was conducted on August 30, 1946, in a unit of the
respondents' employees consisting of all production and maintenance employees
excluding office and clerical employees and all supervisory employees with au-
thority to hire, promote, discharge, discipline, or otherwise effect changes in
the status of employees or effectively recommend such action. A majority of
the ballots were cast in favor of the FTA-CIO 6
On October 2, 1946, the Board issued its Order Severing Case and Certifica-
tion of Representatives in which it severed the representation case concerning
the respondents' plant (Case No. 20-R-1428) from the consolidated Bercut-
Richards case (Case No 20-R-1414) and certified that the FTA-CIO had been
designated and selected by a majority of the employees in the afore-mentioned
unit as their collective bargaining representative and that the said organization
was the exclusive collective bargaining representative
The respondents and the AFL maintain that the unit established by the Board
is not appropriate on the ground that the appropriate unit should include
the respondents' plant with others in an industry-wide unit rather than a single-
employer unit The arguments advanced in support of this contention are:
1 That the labor relations experience at the plant was and is that the re-
spondents consistently follow and adopt the collective bargaining contracts
negotiated by the C. P. & G. as well as interim agreements and decisions agreed
to by C. P. & G.
2 That none of the parties herein opposed the establishment of an industry-
wide unit at the hearing on the consolidated case.
3 That an industry-wide unit is in accord with the collective bargaining
history in the industry.
4. That an industry-wide unit would increase the stability of labor relations
in the industry.
5. That canning operations are seasonal, and workers shift from plant to plant
during the canning season, and that employees would be more able to shift from
plant to plant if there were a single collective-barg*aining representative in the
industry.
While the respondents and the AFL presented some evidence at the present
hearing as to policy of the respondents to commit themselves to, and to follow
the labor relations policy of, the C P & G , they relied to a great extent on the
testimony and the exhibits presented at the hearing of the consolidated case
The Board's Decision, Direction of Elections, and Order in that case clearly
shows that the Board had in mind the arguments and the considerations urged
in the present case. Among other matters the Board, in its decision, outlined
the respective positions of the parties as to the appropriate unit and mentioned
the custom of non-members of C. P. & G. to sign agreements identical with those
negotiated for C. P. & G. members. Nevertheless, it determined that employees
of each independent company comprised a separate appropriate unit. This posi-
tion was adhered to by the Board in the subsequent supplemental decisions
previously enumerated herein culminating in the certification herein based upon
5 The tally of ballots was as follows :
Approximate number of eligible voters----------------------------------- 326
Void ballots ---------------------------------------------------------- 2
Valid votes counted---------------------------------------------------- 249
Challenged ballots-----------------'----------------------------------- 18
Votes cast for AFL---------------------------------------------------- 107
Votes cast for FTA-CIO------------------------------------------------ 137
Votes cast against participating labor organizations ------------------------ 5
CALIFRUIT CANNING COMPANY 123
a single-employer unit. Under the circumstances, the undersigned concludes that
the prior determination of the Board is controlling herein.
The undersigned, therefore, finds that all production and maintenance em-
ployees of the respondents at Manteca, California, excluding office and clerical
employees and all supervisory employees with authority to hire, promote, dis-
charge, discipline, or otherwise effect changes in the status of employees or
effectively recommend such action, constitute and at all times material herein
constituted a unit appropriate for the purposes of collective bargaining. The
undersigned further finds that on and at all times after October 2, 1946, the
FTA-CIO was the duly designated collective bargaining representative of the
employees in said appropriate unit.
2. The refusal to bargain
At the hearing herein the parties entered into the following stipulation :
It is stipulated by and between the parties that representatives of the
FTA-CIO requested recognition of the FTA-CIO as the exclusive bargaining
agents of the Company's employees, and endeavored to bargain with the
management of the Califruit Canning Company, on three occasions sub-
sequent to the issuance by the National Labor Relations Board of the
certification of the FTA-CIO as the exclusive bargaining representative of
the employees of the Califruit Canning Company in the unit described by
the Board in its certification ; the dates of these three occasions being about
October 18, October 26 and November 1, all in 1946. The October 18 meeting
had been preceded by a letter dated October 5 from Jack Montgomery,
FTA-CIO representative, asking the Company to set a date for a bargaining
conference, to recognize the FTA-CIO as exclusive bargaining representa-
tives, and to cease recognizing the AFL.
The Company, however, has refused to bargain with FTA-CIO and has
refused to recognize FTA-CIO as the exclusive bargaining representative of
the employees ; giving as reasons, among others, that the company has a con-
tract for exclusive recognition of the A. F of L. which remains in force until
March 1947, and the further reason that the Company was afraid of trouble
with the A. F. of L. if the Company should recognize the CIO as the bargaining
representative.
It is further stipulated that during that period and since, up to and includ-
ing the present time, the Company has continued to recognize the A. F. of L.
as exclusive bargaining representative for its employees.
The contractual history between the respondents and the AFL has been outlined
in Section III of this report. The argument that an existing contract barred
recognition of the FTA-CIO rests on the validity of an agreement dated April
13, 1946, and signed by the respondents and the AFL.° The substantive part of
the agreement is as follows :
1. It shall be a condition of employment with the Employer that all em-
ployees 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
The parties also had signed an agreement on January 9, 1946, but that agreement
expired on March 1, 1946.
124 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(10) days of the date of hiring to become a member of the Union and there-
after 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. Asa 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.
At the time of the execution of the contract of April 13, 1946, the respondents
had actual notice of the pendency of a question concerning representation at its
plant. The Board, in its Supplemental Decision of February 15, 1946, in the
consolidated representation proceeding, expressly called the attention of the
parties to well-established principles that none of the unions involved was entitled
to an exclusive status as bargaining agent after the expiration of their old
contracts, that the employers, pending a new election, could not give preferential
treatment to any of the labor organizations involved, and that the inclusion of
any closed-shop provision in any future agreement or extension of a current
agreement would be violative of the Act, while the question concerning repre-
sentation remained pending and undetermined.'
The respondents chose to ignore the notice contained in the decision and
executed a contract giving preferential treatment to the AFL. The respondents'
conduct was violative of the Act and the Board so held in its recent decision in
the prior unfair labor practice case involving the respondents herein. The
undersigned therefore concludes that the contract of April 13, 1946, was not a bar
to the recognition of the PTA-CIO.
The AFL further contends that the Board recognized the validity of the April
13 contract and similar agreements. It relies on the following language by the
Board in the Third Supplemental Decision and Second Direction of Elections
in the consolidated representation hearing:
5. Necessity of waivers with respect to pending charges of unfair labor
practices
We now turn to the question of the propriety of directing elections at
this time, in view of the fact that there are pending charges filed by the CIO
alleging the commission of unfair labor practices on the part of certain of
the Companies involved herein. The Board customarily will not proceed
to an election without first requiring a charging petitioner to agree that it
will not urge the subject matter of its pending unfair labor practice charges
as grounds for objecting to the conduct of the election in the event that it
loses.' In the present instance, the Board requested that the CIO file the
usual waivers with respect to its pending charges of unfair labor practices.
Although the CIO has failed to file such waivers, it has given no indication
4 See Matter of The May Department Stores Company, d/b/a Famous Barr Company,
61 N. L. R. B. 258.
7 Matter of Flotill Products, Inc, 70 N L It. B 119.
CALIFRUIT CANNING COMPANY 125
that it does not desire that election be conducted at this time. Inasmuch as
the elections cannot be truly representative, because of the character of the
industry involved, unless conducted during the present season of peak
operations, and in view of the fact that the pending charges cannot be
determined in time to hold the elections during the present season, we are
disposed under all the circumstances of this case, including the importance
of conducting an election in this industry during 1946, to direct elections
without first requiring the filing of waivers by the CIO. We shall not, how-
ever, permit the subject matter of the pending unfair labor practice charges
to constitute a valid basis for setting aside the elections, if that result should
ever be sought.'
5 After the hearing which preceded our Second Supplemental Decision, the AFL filed a
motion to dismiss the unfair labor practice charges prior to the conduct of the elections.
In view of the above provision that the unfair labor practice charges are not to be
utilized as the basis of objections to the conduct of the election, the motion of the AFL
is hereby denied.
The AFL argues that the above language recognized the validity of existing con-
tracts and indicated that they would not be superseded by any certification until
their expiration date The undersigned does not agree. The Board, in its
decision, merely ruled that existing charges of unfair labor practices would not
be considered as a valid basis for setting aside the elections to be conducted. The
Flotill case, supra, constitutes a complete exposition of the Board's position as to
the validity of contracts such as the one here in question.
The stipulation entered into by the parties as to the respondents' refusal to
bargain with the FTA-CIO lists as a reason for its action "that the Company
was afraid of trouble with the A. F. of L if the Company should recognize the
CIO as the bargaining representative." It is well settled that fear of adverse
consequences affords no justification for a violation of the Act.'
The undersigned finds that the respondents on October 18, 1946, and at all
times thereafter, have refused to bargain collectively with the FTA-CIO as the
exclusive representative of its employees in an appropriate unit in violation of
Section 8 (5) of the Act and have thereby interfered with, restrained, and
coerced their employees in the exercise of the rights guaranteed in Section 7
of the Act.
C. The invalidity of the check-off procedure followed by the respondents
1. The amendment of the complaint
Paragraph 4 (b) of the complaint, as originally drawn, was as follows:
4. The respondents while engaged in business as described above, by their
officers, agents, and employees since approximately April 1, 1946, have:
(b) urged, persuaded, and coerced Walter Fender to pay dues to
the AFL
At the commencement of the hearing, the Board moved to amend paragraph
4 (b) to read as follows:
urged, persuaded, and coerced Walter Fender and Frederick Escalante and
its other employees to pay dues to the A. F. of L. by means of check-off and
by other means.
IN. L. R. B. v. Star Publishing Company, 97 F (2d) 465, 470 (C. C. A. 9) ; N L. R. B.
v. Hudson Motor Car Company, 128 F. (2d) 528, 533 (C. C. A. 6) ; Matter of Eureka
Vacuum Cleaner Company, 69 N. L. It. B. 878.
126 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Objections were made by the respondents and the AFL to the proposed amend-
ment which objections were later amplified in their briefs.
The first objection was that the issue sought to be raised had been litigated in
the prior hearing on a complaint charging the respondents with the commission
of unfair labor practices, Case No 20-C-142S.
The objectors point to the following allegations of the complaint in the prior
proceeding, dated August 1, 1946:
7. The respondents while engaged in business as described above, by their
officers, agents, and employees, have since approximately April 1, 1946 inter-
fered with, restrained and coerced their employees at the plant in the
exercise of their rights guaranteed in Section 7 of, the Act, by various acts
and statements including without limitation the following:
(c) Respondents have urged, persuaded and coerced its employees to
pay dues to the A. F of L.; (d) Respondents have required said em-
ployees at the plant to obtain clearance cards from the A. F. of L as
a condition of employment, and have refused to employ or continue in
its employ, persons who failed or refused to obtain such clearance.
10. Respondents discharged and refused, and still refuse to reinstate the
said employees named above, because of their membership in and activities
on behalf of FTA-CIO, and because of their failure to become or remain
members of the A. F. of L, or to pay dues and assessments to the A F. of L.
An examination of the Board's prior complaint decision (73 N. L R. B 290)
reveals that it does deal with the validity of the contract of April 13, 1946, and
certain aid and assistance furnished the AFL by the respondents in the enforce-
ment of its provisions on April 15, 1946. However, the issue of any check-off
arrangements between the AFL and the respondents and deductions thereunder
was not litigated. This is made clear in footnote 31 of the said decision wherein
it is said :
Although there is some intimation in the record that membership dues
of employees of the respondents were checked off in favor of the A. F. of L.
at times under the several contracts„ the evidence is insufficient to establish
that such an arrangement was actually in effect during the period involved.
Inasmuch as none of the employees alleged herein to have been discriminated
against were afforded membership in the A. F. of L. during this period, and
were not employed after April 15, 1946, when seasonal operations were
resumed, obviously no question of refund of dues is involved with respect
to them. Moreover, inasmuch as it is not specifically alleged in the complaint
that membership dues of employees were checked off involuntarily for the
period involved, and the record affords no justification for finding that this
occurred, it will not be recommended that any dues paid to the A. F. of L.
by the respondents' employees be refunded.
The undersigned concludes that the issue sought to be raised here was not the
subject of prior adjudication.
It was also contended that the proposed amendment did not specify all the
employees from whose salaries dues were checked off. This is unnecessary.
A further contention was raised as to the failure to specify the period during
which the alleged check-off was operative. As to this, counsel for the Board
orally stated that the Board intended to confine this allegation to the period
from April 1, 1946.
CALIFRUIT CANNING COMPANY 127
A final objection was one of surprise. The undersigned granted the motion
to amend, but at the same time notified the objecting parties that he would
entertain a request from them later in the hearing for some additional time
to prepare a defense or to draft pleadings in answer to the amendment. No
such request was received and, as appears hereinafter, testimony in defense to
the allegation was presented.
2. The operation of the check-off procedure
The agreement of April 13, 1946, provided that it should be a condition of
employment that the respondents' employees, both as to employees then work-
ing and future employees, become and remain members of the AFL in good
standing This agreement was promptly put into effect.
On April 15, the plant reopened, for the canning of asparagus. A large group
of employees appeared at the plant pursuant to notice that the respondents had
sent them. Before they were allowed to work they were required by the re-
spondents to "clear" with the AFL. For this purpose a table had been set up
on plant premises. AFL representatives were seated at the table Those who
presented themselves to the AFL representatives and were accepted by the AFL
representatives for clearance signed a document authorizing the respondents to
deduct AFL initiation fees and dues iron their wages and to pay those sums
to the AFL Clearance cards were then issued to those who had signed certifying
that they were members in good standing in the AFL and eligible for employment
at the plant. Those who had "cleared" were then put to work Those who re-
fused to clear or were refused clearance were not put to work.' Employees
already working were required to obtain clearance cards from the AFL.10 Em-
ployees hired after April 15 were also required to follow this procedure.11 It
is undemed that the respondents honored the dues check-off authorizations. Dino
Volandri testified that the respondents followed and enforced the terms and
conditions of their contracts with the AFL. He further testified that AFL dues
and initiation fees were checked off puisuant to the authorizations signed by
employees.
The procedure followed by the respondents was a clear violation of the Act.
With full knowledge of the pendency of a question concerning representation
at the plant they entered into a contract making membership in the AFL a term
and condition of employment They lent their active support and assistance to
the AFL in the enforcement of the contract provisions and required their em-
ployees to clear with the AFL. It is obvious that employees did not sign the
check-off authorizations as a fiee act, but did so because of the economic penalty
they would receive if they failed to do so. The undersigned will accordingly
recommend that the respondents be required to refund all dues and initiation
0 These findings are based primarily upon the credited testimony of employee Lillian
N Ryan A detailed recital of what took place on April 15 and the active parts played
by partners Dino Volandri and S. Montanelli in urging, persuading, and requiring the
employees to clear with the AFL, is contained in the Board's decision in the prior case.
Dino Volandri and Montanelli did not deny Mrs Ryan's testimony. Montanelli testified
that he did not have a clear recollection of the events on April 15.
10 This finding is based upon the testimony of employee Walter Fender.
11 This finding is based upon the testimony of former employee Frederick Escalante.
Employee Richard E McCracken testified that he was reemployed on August 12, 1946,
having left toi military service in April 1944, and that he was not.required to sign a dues
deduction authorization and obtain a clearance card However, it is clear from all the
testimony that the practice on and after April 15, 1946, was to require employees to clear
with the AFL.
128 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
fees deducted from the salaries of their employees pursuant to check-off author-
izations after April 13, 1946, the date of the contract granting the Al'+'L exclusive
membership rights in the plant.12
D. The discriminatory discharges
1. Walter Fender"
Walter Fender was first employed by the respondents in 1945 and assigned
work as a master mechanic. The work included the repair and maintenance of
machinery in the plant. Unlike the seasonal employees who processed and
canned fruit and vegetables, Fender was employed on a year-round basis.
Fender, as a maintenance employee, was eligible to and did join the unions which
attempted to organize the employees at the plant. He first jiined the AFL. In
the latter part of 1945 he espoused the cause of the F'I`A-CIO He wore an
FTA-CIO button at the time of an election conducted at the plant in October 1945.
In November 1945, he began paying dues to that of ganizatuni and also tried
to persuade other workers to join.
In the early part of April 1946, lie had a conversation with a representative
of the AFL named Brown concerning Fender's arrearage in the payment of
dues to the AFL Brown told him that if he did not make those payments lie
would be taken out of the plant. Fender replied that he did not think that lie
had to in view of Board rulings. He also spoke with Dino Volandri and Fred
Volandri on the same day. They urged him to comply with Brown's request
and said that he could not work in a cannery if he did not After thinking
the matter over, Fender told the Volandris that he would sign up with the
AFL. He signed a dues deduction authorization and was cleared by the AFL14
On June 24, Brown went to Fender while the latter was at work in the plant
and introduced him to another AFL representative who, he said, was a "fighter."
On June 27, a group of AFL officials saw Dino Volandri in the plant office.
They showed him a letter stating that Walter Fender was no longer a member in
good standing and they then requested that Fender be discharged. Dino Volan-
dri refused to comply with this request, the men asked to see Fender and Volan-
dri gave them permission to do so.
The group then proceeded to Fender's place of work and the AFL representative
who had been introduced to Fender on June 24 by Brown handed Fender a
communication from the AFL stating, in substance, that charges had been
filed against him by members in good standing, that he was no longer in good
standing and was suspended and that he was no longer eligible to work at the
plant. Fender said that he wanted to finish some work, but the representative
said he had to leave right away, that if he remained after noon, he would be taken
out. Fender then collected his tools and left.
Fender's wife, Palmira Fender, was also working at the plant at that time.
She met her husband sometime later a short distance from the plant. They were
discussing the incident when Fred Volandri came over. Mrs. Fender said, "Fred,
12 N. L. R. B. v. Cassoff, doing business as Central Paint and Varnish Works, 139 F (2d)
397 (C. C. A. 2), enf'g per curiam, 43 N. L R B. 1193; N L R B. v Jacob Garfunkel and
Hyrnan Garfunkel doing business as Surprise Candy Co., 162 F. (2d) 256 (C C. A. 2),
enf'g per curiam 66 N. L R. B 1. Cf Matter of Lien-Rad Tube & Lamp Corp., 62 N. L.
R B. 21.
12 The complaint in the prior unfair labor practice case alleged the wrongful discharges of
Walter Fender and Palmira Fender. However, the Board's prior complaint decision noted
that during the hearing the complaint was dismissed as to them, without prejudice.
24 The above findings are based upon Fender's uncontradicted testimony.
CALIFRUIT CANNING COMPANY . 129
what does this mean" and Fred Volandri replied, "Well, I can't do nothing I
fought this all day yesterday."" Fender then left and had no further conver-
sation with any of the respondents until the latter part of October 1046. At
that time, Fender came to the plant as a member of an FTA-CIO delegation
which had a meeting with Dino Volandri. During the meeting, Dino Volandri
told Fender to return to work. A date was set for Fender's return, and after
some postponement by Dino Volandri, he was reemployed on November 1, 1946,
and was in the respondents' employ at the time of the hearing.
Dino Volandri testified that during the early afternoon of June 27, he noticed
that Fender was not at his place of work and that when he asked an employee
where Fender was lie was told that Fender had picked up his tools and left.
Continuing his testimony, Dino Volandri stated that he had a conversation with
S. Montanelli, one of his partners, between 2 and 3 p. in. in which he told Mon-
tanelli of his earlier conversation with the AFL representatives and Fender's dis-
appearance. He asked Montanelli if he knew what happened to Fender and
Montanelli said he did not. Sometime between 5 and 6 p. in., Dino Volandri
continued, he spoke to Fred Volandri and Montanelli of Fender's absence and
they "wondered" why he had left. Dino Volandri also testified that while he was
uncertain of it, Fred Volandri "most likely" mentioned that he had seen Walter
Fender get into his car.
Montanelli testified that after Dino Volandri told him that Fender was miss-
ipg, he made inquiries among the employees His testimony as to what occurred
is as follows :
Q. I see. Now, what details did you gather's
A Oh, from different people, which I didn't give it too much value.
Q. What are the details that you gathered?
A Well, someone was telling me that the union fired him, some told me,
"Well, I don't know ; all I seen was him putting his tools in his car, and he
took off."
Q. Some said to you that the union fired him, is that right?
A. Some says the union fired him, some didn't say who, only seen that he
picked up his tools and left.
Q. I see. Now then, is that as far as your investigation went?
A. Well, yes, because I don't have only that to do; I have other duties to
perform
Q I am not criticizing you ; I am merely asking you.
A. Well, yes; at the present, yes.
Q At the present?
A. Well, at that time, that is all I- (pause)
Q. Well, did you later on make a further investigation?
A. Well, as I went on, yes.
Q. As you went on, what else did you find out?
A. Well, about the same thing ; some say one thing, some say another.
Q. Some said the union had fired him, and some said he had put his tools
in the car and had gone home, is that right?
A Yes.
ss This finding is based on Fender's testimony. Fred Volandri did not testify, the re-
spondents asserted at the hearing that he was hospitalized. Dino Volandri gave testimony
indicating that Fred Volandri had no knowledge of Fender's leaving the plant until later
in the day. The undersigned accepts Fender's version.
130 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Continuing his testimony, Montanelli testified that he did not repeat the substance
of these reports to his partners, but only discussed with them the fact that Fender
was absent.
As afore mentioned, after Fender left the respondents' premises he did not
communicate with the respondents. Nor did the respondents communicate with
him. Dino Volandri testified that he saw no connection between the demand of
the AFL representatives that Fender be discharged and his subsequent unex-
plained leaving. Montanelli, near the conclusion of his testimony, stated that
one of his reasons for not making a further investigation was that in the early
part of 1945 Fender had quit work after Montanelli had refused to discharge
another employee at his request.
Conclusions
The respondents and the AFL contend that Fender voluntarily quit work and
that the respondents' conduct was not violative of the Act. The undersigned does
not agree.
On April 13, 1946, the respondents entered into an agreement with the AFL
which provided that it would be a condition of employment that all employees
should become and remain members of the AFL in good standing and that per-
sons who failed to maintain good standing in the AFL would be discharged within
36 hours after such notification by the AFL. The respondents aided and assisted
the AFL in the enforcement of its contractual rights. Fender, in particular,
was urged by the respondents to maintain good standing in the AFL and was
told by them that he had to belong to the AFL to work in a cannery. All the
employees saw that the respondents gave practical support to the AFL in its pro-
gram of signing up the employees. In view of the existing situation the under-
signed finds that Fender reasonably concluded that he could not work at the
plant when he received a written notice that he was no longer in good standing
in the AFL and was told that he had to leave the plant immediately The contract
signed by the respondents dictated that result.
In addition, the undersigned concludes that the respondents knew and should
have known why Fender left their employ. Shortly before Fender left, AFL
representatives had asked Dino Volandri to discharge Fender. Volandri had
refused, but had given them permission to see Fender. The undersigned rejects
his testimony that he saw no connection between the demands of the AFL repre-
sentatives and Fender's leaving. Montanelli in the course of his investigation
was told by some employees that the AFL had "fired" Fender. Yet he too
claimed that he was unable to understand why Fender left The undersigned
rejects his testimony that Fender's leaving the respondents' employ n 1945 led
him to believe that Fender had walked off the job this time. If the respondents
had had no evidence to indicate why Fender had left, this defense might seem
plausible. Here, the respondents had concrete evidence clearly indicating the
reason for Fender's sudden disappearance. Also there is proof indicating that
Fred'Volandri had advance knowledge of the action to be taken against Fender.
The actual situation is fully established by the credible evidence. Fender was
an experienced and valuable employee whom the respondents wished to retain
especially since they were in the midst of their canning season. Fender, because
of his activities in the FTA-CIO, had incurred the displeasure bf'the AFL. The
AFL declared him not in good standing and,. exercising its contractual rights,.
demanded that he be discharged. Dino Volandri refused this request, but when
AFL representatives went ahead and ordered Fender off the plant premises under
threats of violence, the respondents acquiesced and accepted the situation.
C
CALIFRUIT CANNING COMPANY 131
The undersigned concludes and finds that the respondents by signing the con-
tract of April 13, 1946, which was violative of the Act, by permitting AFL repre-
sentatives to speak with Fender on plant premises during working hours, and by
other acts enumerated herein, had helped to create a situation where they were
under a duty to act to protect Fender, that when they failed to do so, they adopted
and ratified the acts of the AFL representatives and constructively discharged
Walter Fender in violation of the Act
2. Palmira Fender
Palmira Fender is the wife of Walter Fender She began work for the re-
spondents in 1944. After several months, she was promoted to the position of
head floorlady and retained this position during the following canning seasons
until June 27, 1946 As head floorlady, Mrs. Fender was in charge of the women
employees at the plant and exercised supervisory authority. She reported directly
to Montanelh and received her instructions from him. She was not a member of
either of the competing unions and the evidence establishes that she maintained a
neutral position.
As afore mentioned, Walter Fender stopped work at the insistence of the AFL
around noon on June 27, 1946. Mrs Fender learned of this from him soon after
the occurrence. Mrs Fender testified that during the afternoon she had a con-
versation with Mrs. Montanelli, the wife of S Montanelli, one of the partners."
Mrs. Fender told Mrs Montanelli that Walter Fender had been discharged and
asked whether she also would be discharged Mrs. Montanelli said that she would
find out. Later, Mrs. Montanelli said that "there is something about it" and that
the partners wanted to see her Mrs. Fender went to the plant office at approxi-
mately 5 p. in and met with Fred Volandri, Dino Volandri, Montanelli, and Mrs.
Montanelli. Her testimony as to what occurred is as follows :
A. So I stood there. Nobody speak. I say, "What is all about?"
Mr. Volandri, Dino Volandri, said, "Don't blame it to us."
I say, "What?"
He says, "Don't blame us."
I says, "What is it? Any reason?"
"No reason at all."
I says, "Well, what is it all about?"
Mr. Volandri spoke up, Fred Volandri, and he said, "They told me to take
you and your husband out of here for my own good ; but hell-my own good ;
I need you now ! Why didn't they tell me that before we started the season?"
And I was all upset and I started to cry. I said, "I came here to help
you people, I came in this cannery to bring you help; not like bosses, but
to treat you like my own family, and that is the way you treated me." I
say, "I never forget this," and I stood there and I don't know what I said
any more. So I said I better go home, then they told me not to hurry, to
take it easy. And Mr Volandri, Dino Volandri, said, "Well, I signed up the
union and they tell me to get out of this office and to stay out of this office,
I got to do it. It isn't our fault " He says, "After this is straightened out,
maybe we can talk to you again."
Q. Did you go out, then?
A. I went out, and Mrs Montanelli ; I went out across the street to wait
for my husband to pick me up at six o'clock and I went home.
. 19 Mrs Montanelli had no official position at the plant, but came there on occasions to
assist in its operations
132 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Board contended that Mrs. Fender was discharged by the respondents at
the request of the AFL and as part of a plan to get rid of both Mr and Mrs.
Fender Lillian M. Ryan, a production worker, testified that on June 26 she
overheard a conversation between a production worker, a Airs Albers, and an
AFL shop steward, Gus Rocha. When Mrs Albers complained of Mrs. Fender's
failure to give her overtime work, Rocha replied, Mrs. Ryan testified, "Mrs.
Albers, you won't have to worry any more. Mrs. Fender is washed up ; we got
rid of her." Mrs. Ryan further testified that on the morning of June 27 she saw
Bessie Allen, an AFL shop steward, pin AFL pins on some workers and over-
heard her tell them that there would be a strike if Mrs. Fender was not dis-
charged. Neither Rocha nor Bessie Allen testified The undersigned credits
Mrs. Ryan's testimony.
The testimony of Montanelli and Dino Volandri as to the circumstances leading
up to the termination of Mrs Fender's employment differed sharply from her
version Montanelli testified that be was told by Mrs. Montanelli on June 27,
that Mrs. Fender was "all in the air" and that she had said that she was going to
be discharged Montanelli further testified that he told Mrs Montanelli to tell
Mrs. Fender to come to the office. His description of what occurred at the office
is as follows :
The WITNESS. When she come in she was all in the air and all upset, you
might say, and I would say that she was crying also. And she says, "Well,
what have I done?"
And I says, "Wait a minute. Up to now you haven't done anything " And
I says, "What seems to be the matter? Sit down here and tell us what is
the trouble."
So still she started hollering about what she was doing for us and what
she wasn't doing for us, and I says, "Now, that don't get you nowhere." I
says, "Now, calm down "
"Well," she says, "I understand I am going to be fired, too."
And I says, "Look," I says, "being that you brought that up, I intended to
fire you at the end of the asparagus season, yes ." And I says, "If you want
to go, you can go now."
By Mr. MooRE :
Q. Did she say anything in reply to that?
A. Well, she didn't say much, but she walked out of the office.
Dino Vulnndri corroborated Montanelli's testimony as to what took place at
the meeting with Mrs. Fender on June 27. However, he gave conflicting testi-
mony as to whether there had been a decision to discharge Mrs Fender prior to
her coming to the office At one point in his testimony he testified that there
had been some trouble at the plant a few days before in that one employee had
walked off the job after some trouble with Mrs Fender, that the partners dis-
cussed the matter, and that they decided "rather than lose employees of the plant,
we might as well get rid of the one who is causing the trouble." Later in his
testimony, Volandri testified that the partners met before Mrs Fender came in
to discuss her work record, but that no decision had been reached before she came
in. He also testified that Montanelli told Mrs.,Ii'ender that she was discharged for
not following instructions He denied that any request for her discharge had
been received from the AFL.
Montanelli testified that lie was not satisfied with Mrs Fender's work in 1946,
that he had observed her work, and that she shouted and was too rude to some
employees He further testified that on three or four occasions he told her
CALIFRUIT CANNING COMPANY, 133
"how to go about things" and that in May he told her her work was not up to
standard and gave her further instructions. Dino Volandri testified that on
one occasion he remonstrated with Mrs. Fender for shouting. Airs. Fender denied
that she had had any trouble with the employees except in isolated instances and
that no one complained to her of her work at the June 27 conference. She also
denied that she had received any reprimands.
Conclusions
Airs Fender's work record was one of apparently satisfactory service She
was promoted to a supervisory position in 1944. In 1945, she was rehired at the
start of the canning season and served as head floorlady throughout the season.
In 1946, she was reemployed as a top supervisory employee and remained in that
position until her discharge on June 27
The undersigned was impressed by the testimony of Airs. Fender as a sincere
and truthful account of her work record and the occurrences on June 27. The
undersigned credits her testimony on those matters. The testimony of the wit-
nesses for the respondents was conflicting on the significant point of the events
leading up to the discharge of Mrs. Fender. The undersigned further found it un-
reliable and an effort to magnify certain incidents out of proportion in order to
justify the discharge. That testimony is not credited.
There is. in the opinion of the undersigned, more than a coincidence in the
fact that Mrs. Fender's discharge took place several hours after Fender's termi-
nation of employment. Airs. Ryan's credited testimony indicates that the
AFL had determined to get rid of Mr and Mrs. Fender and was pressing for such
action by the respondents. Although Airs. Fender had not engaged in any union
activities, the evidence warrants the inference that the AFL did not want
any close relative of Fender working at the plant, especially a relative in a top
supervisory position who exercised authority in the hiring and firing of employees.
Mrs. Fender's testimony as to what occurred at her meeting with the partners
on June 27 establishes that the respondents gave in to the AFL pressure and
discharged Airs. Fender rather than risk any reprisal. The undersigned, there-
fore, concludes that Airs Fender was discharged at the request of the AFL thereby
encouraging membership in the AFL and discouraging membership in the FTA-
CIO.
E The alleged discriminatory discharge
Frederick Escalante began work for the respondents in the early part of
July 1946 He was -assigned a certain canning table and his job was to take
trays of cans from the table, place them on trucks, and put empty trays on the
table. He continued this assignment until shortly before his discharge on August
30, 1946.
Escalante signed a dues deduction authorization for the AFL when he went
to work He never joined the FTA-CIO although, he testified, he had indulged
in `quite a bit" of "CIO talk." On August 30, 1946, a Board-conducted election
was held at the plant. Prior to the election, Escalante was asked by an FTA-
CIO representative to serve as an observer at the election during the afternoon.
He agreed to do so. On the day of the election Esca]ante wore an FTA-CIO
button. Escalante testified that an AFL shop steward told him to. throw the
button away. Escalante further testified that another AFL shop steward,
Bessie Allen, told him to vote for the AFL. When Escalante replied that he
would vote as he pleased , Bessie Allen became angry and, as Escalante put
it, they "had a slight misunderstanding."
798767-48-vol 78-10
134 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
At about 2 p in. Escalante went to his foreman, Tony Leandro, and asked
for permission to stop work so that he could act as a poll watcher. Leandro
replied that he was fired. When Escalante asked Leandro why he was being
fired, the latter replied, according to Escalante, "Because you have been making
too much CIO talk."
The respondents contend that Escalante was discharged because he wasted
time and stayed away from his post of duty Leandro testified that Escalante was
often away from his post. He further testified that he received complaints from
women working at the canning tables and their floorladies that Escalante was
annoying them by talking with them and pinning paper tags to their dresses.
He also testified that he received complaints from Montanelli. On the first such
occasion, Leandro stated, Montanelli told him to watch Escalante, that he was
not doing his work." A few days later Montanelli complained again. Escalante
was wrestling with three other employees at that time, according to Leandro
Leandro further testified that he had occasion to warn Escalante almost every
day.
On Escalante's last work day Leandro shifted him to another assignment,
dumping tomatoes on a belt line. He made this change, Leandro testified, after
he was requested by employee Richard McCracken and a woman employee to
shift Escalante because he was not doing his work. Leandro, continuing his
testimony, stated that at about 2 p in. of that day, Montanelli spoke to him
and told him to discharge Escalante. Leandro testified that Escalante was
then away from his work, sitting on a canning table, talking to some women
employees. Leandro then punched Escalante's time card and told him that he
was discharged. He denied that he told Escalante that he was discharged for CIO
talk and maintained that Escalante did not tell him that he would be an
observer at the election until after he was discharged.
Montanelli testified that he received about half a dozen complaints about
Escalante including one from Richard McCracken, who worked next to Escalante
and complained that Escalante was away from his post and that he had to do
his work. He testified that Escalante was shifted to a new assignment about 3 or
4 days before he was discharged upon his instructions to Leandro. His version
as to the occurrence leading to Escalante's discharge coincided with Leandro's.
He also testified that he saw Escalante in the plant later in the day of the dis-
charge, that he discussed this with Leandro, that Leandro spoke to Escalante,
and reported back that Escalante was to be an observer at the election.
McCracken had been employed by the respondents in 1943 and 1944. He then
left for military service. He returned to work during the week of August 12,
1946, and was assigned to work as a tray boy working next to Escalante. He
testified that Escalante teased the women employees, threw cans, was away from
his work a good deal of the time, and that he had to handle Escalante's trays as
well as his own. Continuing his testimony, McCracken testified that he com-
plained to Leandro about August 25, that Escalante was not at his job and asked
to be moved to another job. He also testified that he complained to Montanelli
the day before the discharge telling him that he wanted either Escalante or
himself shifted because he did not want to do both jobs. He admitted that he had
quarrelled with Escalante frequently.
Escalante admitted that he had indulged in some fooling and horseplay, but
denied that he had done it to a greater extent than other employees. He denied
'T Leandro's testimony as to the date of this complaint was contradictory At one
point , he fixed the time as shortly after Escalante went to work . Later, he fixed the time
as late in July.
CALIFRUIT CANNING COMPANY 135
that he had been unnecessarily absent from his place of work and further denied
that he had ever been reprimanded by either Leandro or Montanelli He further
testified that the belt line had broken down shortly before his discharge and that
lie was helping pick up tomatoes at the time Leandro and Montanelli alleged
that he was loafing in the canning room. They denied that the belt line had
broken down on that day.
Mrs. Ryan corroborated Escalante's testimony that the belt line had broken
down on the day of the election. She further testified that Escalante did "play
around," but denied that lie did more of it than others. She also testified that
she wore an FTA-CIO button on the day of the election and was shifted to a dis-
agreeable assignment, but was restored to her previous assignment after a protest
was made.
Conclusions
The Board contended that Escalante was discharged because he had openly
assumed a position of leadership in FTA-CIO affairs. The undersigned does not
agree. The undersigned, however, recognizes that there are several circum-
stances which tend to cast doubt on the respondents' case. First, there are dis-
crepancies in the testimony of Montanelli, McCracken, and Leandro as to the
dates when complaints were made or received and the surrounding circumstances.
Also, Montanelli did not prove a reliable witness in his testimony on other phases
of this case. Leandro was evasive in certain portions of his testimony, partic-
ularly when he was asked about the incident of April 15, 1946, when there was
a great deal of excitement at the plant in connection with the requirement by
the respondents that all employees then clear with the AFL before they would be
allowed to work. Leandro professed to know nothing about this and very little
about any AFL representative appearing on plant premises The undersigned
does not credit this portion of his testimony The undersigned also accepts Mrs.
Ryan's testimony that the tomato (felt line had broken down on the day of dis-
charge Finally, although the respondents' witnesses claimed that Escalante's
work had been poor for a long time, the discharge itself occurred on the day of
the election when Escalante wore an FTA-CIO button for the first time.
However, the testimony of Montanelli and Leandro was corroborated by Rich-
ard McCracken whose testimony the undersigned credits. McCracken did com-
plain to them about Escalante. Mrs. Ryan also partially corroborated their
testimony when she testified that Escalante indulged in some horseplay. Esca-
lante also admitted it. The undersigned, upon consideration of the testimony,
credits the testimony of Montanelli and Leandro that complaints had been
received of Escalante's work and that he had been warned. The undersigned
also accepts Leandro's version of the discharge including his denial that he told
Escalante that lie was discharged for "CIO talk." While the matter is not free
from doubt, the undersigned is not persuaded that Escalante's poor work per-
formance was used as a pretext to discharge him because of his activities on
behalf of the FTA-CIO.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the respondents set forth in Section III, above, occurring in
connection with the operations of the respondents 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.
136 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
V. THE REMEDY
Since it has been found that the respondents have engaged in unfair labor
practices, the undersigned will recommend that they cease and desist therefrom
and take certain affirmative action designed to effectuate the policies of the Act.
It has been found that the respondents have discriminated in regard to the
hire and tenure of employment of Walter Fender and Palmira Fender. It will be
recommended that the respondents offer Palmira Fender immediate and full
reinstatement to her former or substantially equivalent position without preju-
dice to her seniority and other rights and privileges. It will be further recom-
mended that the respondents make her whole for any loss of pay she may have
suffered by reason of such discrimination by payment to her of a sum of money
equal to the amount she would have earned as wages from the date of the dis-
crimination against her to the (late of the respondents' offer of reinstatement
less her net earnings1e during said period
As to Walter Fender, it will be recommended that the respondents make him
whole for any loss of pay that he may have suffered by reason of the respondents'
discrimination against him on Time 27, 1946, by payment to him of a sum of money
equal to the amount he would normally have earned from that date until his rein-
statement on November 1, 1946, less his net earnings during said period.
Having found that the respondents have refused to bargain collectively with
the FTA-CIO, the undersigned will recommend that the respondents, upon request,
bargain collectively with the FTA-CIO as the representative of all their production
and maintenance employees, excluding office and clerical employees and all super-
visory employees with, authority to hire, promote, discharge, discipline, or other-
wise effect changes in the status of employees or effectively recommend such
action, in respect to rates of pay, wages, hours of employment and other conditions
of employment.
It has also been found that the respondents entered into an agreement with the
AFL on April 13, 1946, making membership in the AFL a term and condition of
employment, which contract under existing circumstances was violative of the
Act. It has also been found that the respondents aided and assisted the AFL
in the enforcement of the contract by requiring their employees to clear with
the AFL, which assistance, in practice, meant that employees had to sign check-off
authorizations for the AFL for membership dues and other fees. It will be recom-
mended that the respondents reimburse each employee for membership fees and
dues deducted from his wages pursuant to such check-off authorizations by pay-
ment to each of them of a sum of money equal to the total of such dues or fees
deducted from his wages. It will also be recommended that the respondents
cease and desist from making such deductions from the wages of its employees
unless and until the AFL shall have been certified by the Board as the exclusive
bargaining representative for those employees 1D
It has been found herein that the respondents violated Section 8 (5) by failing
and refusing to bargain collectively with the FTA-CIO as the exclusive repre-
sentative of their employees in an appropriate unit It has also been found
that the respondents discriminated against Walter Fender and Palmira Fender
in violation of Section 8 (3) of the Act. Furthermore, it has been found that the
respondents violated Section 8 (1) of the Act by the above acts and their assist-
1s Matter of Crossett Lumber Company, 8 N L R . B 440, 497-498
19 No remedies have been recommended with respect to the agreement of April 13, 1946,
since the Board has ruled on the validity of that agreement in its decision in the prior
unfair labor practice case and has in its order therein prescribed necessary relief.
CALIFRUIT CANNING COMPANY 137
ance to the AFL in the matter of check-off deductions. In the prior unfair labor
practice case, the Board found that the respondents discriminated against four
employees and violated the Act by entering into the agreement of April 13, 1946,
with the AFL. The undersigned is convinced and finds that the entire course of
conduct of the respondents is indicative of persistent efforts to thwart the self-
organization of their employees by various devices and that there exists real
danger of the continuation of such practices in the future. In order to effectuate
the policies of the Act it will be recommended that the respondents be ordered
to cease and desist from in any manner infringing upon the rights guaranteed in
Section 7 of the Act.
Upon the basis of the foregoing findings of fact and the entire record in the
case, the undersigned makes the following:
CONCLUSIONS OF LAW
1. Food, Tobacco, Agricultural & Allied Workers Union of America, affiliated
with the Congiess of Industrial Organizations, and International Brotherhood of
Teamsters, Chauffeurs, Warehousemen, and Helpers of America, California State
Council of Cannery Unions, and Cannery Workers, Processors, Warehousemen
and Helpers, Local Union No 601, each 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 Walter
Fender and Palmira Fender, thereby encouraging membership in International
Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America,
California State Council of Cannery Unions, and Cannery Workers, Processors,
Warehousemen and Helpers, Local Union No. 601, all affiliated with the American
Federation of Labor, and discouraging membership in Food, Tobacco, Agricultural
& Allied Workers Union of America, affiliated with the Congress of Industrial
Organizations, the respondents have engaged in and are engaging in unfair
labor practices within the meaning of Section 8 (3) of the Act.
3. All production and maintenance-employees of the respondents, excluding
office and clerical employees and all supervisory employees with authority to
hire, promote, discharge, discipline, or otherwise effect changes in the status
of employees or effectively recommend such action, constitute a unit appropriate
for the purposes of collective bargaining within the meaning of Section 9 (b)
of the Act.
4. Food, Tobacco, Agricultural & Allied Workers Union of America, affiliated
with the Congress of Industrial Organizations, was on October 2, 1946, and at all
times thereafter has been, and now is, the exclusive representative of the re-
,spondents' employees in said unit for the purposes of collective bargaining
within the meaning of Section 9 (a) of the Act.
5. By refusing on October 18, 1946, and at all times thereafter to bargain
collectively with Food, Tobacco, Agricultural & Allied Workers Union of America,
affiliated with the Congress of Industrial Organizations, as the exclusive repre-
sentative of their employees in the appropriate unit, the respondents have en-
gaged in and are engaging in unfair labor practices within the meaning of
Section 8 (5) of the Act.
6. By the above acts and by aiding and assisting International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of America, California State
Council of Cannery Unions, and Cannery Workers, Processors, Warehousemen
and Helpers, Local Union No. 601, all affiliated with the American Federation of
Labor, to secure check-off authorizations from their employees, the respondents
have interfered with and are interfering with, restraining, and coercing their
138 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employees in the exercise of the rights guaranteed in Section 7 of the Act and
have thereby engaged in unfair labor practices within the meaning of Section
8 (1) of the Act.
7. The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 (6) and (7) of the Act.
8. The respondents by discharging Frederick Escalante have not engaged in
unfair labor practices within the meaning of Section 8 (3) of the Act.
RECOMMENDATIONS
Upon the basis of the above findings of fact and conclusions of law, the under-
signed recommends that Fred Volandri, Dino Volandri, and S. Montanelli,
co-partners, doing business under the firm name and style of Califruit Canning
Company, Manteca, California, their agents, successors, and assigns shall:
1. Cease and desist from :
(a) Discouraging membership in Food, Tobacco, Agricultural & Allied Workers
Union of America, affiliated with the Congress of Industrial Organizations, or
any other labor organization of their employees, by laying off, discharging or
refusing to reinstate any of their employees and from refusing to employ any
member of that union or in any other manner discriminating in regard to hire
and tenure of employment or any term or condition of employment;
(b) Refusing to bargain collectively with Food, Tobacco, Agricultural &
Allied Workers Union of America, affiliated with Congress of Industrial Or-
ganizations, as the exclusive representative of their employees in the unit here-
tofore found appropriate, with respect to rates of pas , wages, hour s of employment,
or other conditions of employment,
(c) Checking-off dues and assessments from the wages of their employees
and turning such sums over to International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America, California State Council of
Cannery Unions, Cannery Workeis, Processors, Warehousemen and Helpers,
Local Union No. 601, all affiliated with American Federation of Labor, until and
unless the said unions shall have been certified by the Board as collective bar-
gaining representatives for employees of the respondents ;
(d) In any other manner interfering with, restraining, or coercing their
employees in the exercise of their rights to self-organization, to form labor
organizations, to join or assist Food. Tobacco, Agricultural & Allied Workers
Union of America, affiliated with the Congress of Industrial Organizations, 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.
2. Take the following affirmative action which the undersigned finds will
effectuate the policies of the Act :
(a) Offer Palmira Fender immediate and full reinstatement to her former
or substantially equivalent position without prejudice to her seniority and
other rights and privileges ;
(b) Make whole Palmira Fender and Walter Fender for any loss they may
have suffered by reason of the respondents' discrimination against them ;
(c) Upon request, bargain collectively with Food, Tobacco, Agricultural &
Allied Workers Union of America, affiliated with Congress of Industrial Or-
ganizations , as the exclusive representative of all their production and mainte-
nance employees , excluding office and clerical employees and all supervisory
CALIFRUIT CANNING COMPANY 139
employees with authority to hire, promote, discharge, discipline, or otherwise
effect changes in the status of employees or effectively recommend such action,
in respect to rates of pay, wages, hours of employment, and other conditions
of employment, and if an understanding is reached, embody such understanding
in a signed agreement;
(d) Reimburse each employee for membership dues or fees checked off from
his wages after April 13, 1946, at the request of International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of America, California State
Council of Cannery Unions, Cannery Workers, Processors, Warehousemen and
Helpers, Local Union No. 601, affiliated with American Federation of Labor ;
(e) Post in the respondents' plant at Manteca, California, copies of the notice
attached hereto and marked "Appendix A." Copies of said notice, to be fur-
nished by the regional Director for the Twentieth Region, shall, after being
duly signed by the respondents' representatives, be posted by the respondents
immediately upon receipt thereof and be maintained by them for at least 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 respondents to insure that such notices are not altered, defaced,
or covered by any other material ;
(f) Notify the Regional Director for the Twentieth Region in writing, within
ten (10) days from the date of receipt of this Intermediate Report, setting forth
in detail the manner and form in which the respondents have complied with the
foregoing recommendations.
It is further recommended that unless on or before ten (10) days from the
date of the receipt of this Intermediate Report, the respondents notify said
Regional Director in writing that they will comply with the foregoing recom-
mendations, the National Labor Relations Board issue an order requiting the
respondents to take the action aforesaid
As provided in Section 203.39 of the Rules and Regulations of the National
Labor Relations Board, Series 4, effective September 11, 1946, any party or
counsel for the Board may, within fifteen (15) days from the date of service
of the order transferring the case to the Board, pursuant to Section 203 38 of
said Rules and Regulations, file with the Board, Rochambeau Building, Washing-
ton 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 lie relies upon,
together with the original and four copies of a brief in support thereof ; and any
party or counsel for the Board may, within the same period, file an original and
four copies of a brief in support of the Intermediate Repoit. Immediately upon
the filing of such statement of exceptions and/or briefs, 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. Proof of service on
the other parties of all papers filed with the Board shall be promptly made as
required by Section 203 65. As further provided in said Section 203 39, 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
service of the order transferring the case to the Board.
SIDNEY L. FEELER,
Trial Examiner.
Dated May 19, 1947.
140 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to the recommendations of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that:
WE WILL NOT in any manner interfere with, restrain, or coerce our em-
ployees in the exercise of their right to self-organization, to form labor or-
ganizations, to join or assist FOOD, TOBACCO, AGRICULTURAL & ALLIED WORKERS
UNION OF AMERICA, CIO, or any other labor organization, to bargain collec-
tively through representatives of their own choosing, and to engage in
concerted activities for the purpose of collective bargaining or other mutual
aid or protection.
WE WILL OFFER to the employees named below immediate and full rein-
statement to their former or substantially equivalent positions without preju-
dice to any seniority or other rights and privileges previously enjoyed, and
make them whole for any loss of pay suffered as a result of the discrimi-
nation.
WE WILL BARGAIN collectively upon request with the above-named union
as the exclusive representative of all employees in the bargaining unit
described herein with respect to rates of pay, hours of employment or other
conditions of employment, and if an understanding is reached, embody such
understanding in a signed agreement. The bargaining unit is:
All production and maintenance employees, excluding office and clerical
employees and all supervisory employees with authority to hire, promote,
discharge, discipline, or otherwise effect changes in the status of employees
or effectively recommend such action.
EMPLOYEE TO BE REINSTATED
Palmira Fender
EMPLOYEES TO RECEIVE BACK PAY
Palmira Fender
Walter Fender
We will refund all dues and fees checked-off from the wages of our employees
since April 13, 1946, at the request of International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America, California State Council of
Cannery Unions, Cannery Workers, Processors, Warehousemen and Helpers,
Local Union No. 601, AFL.
All our employees are free to become or remain members of the above-named
union or any other labor organization We will not discriminate in regard to
hire or tenure of employment or any term or condition of employment against
any employee because of membership in or activity on behalf of any such labor
organization.
FRED VOLANDRI, DINO VOLANnRi and S. MONTANELLI,
d/b/a CALIFIIUIT CANNING COMPANY,
Employer.
Dated -------- ------ By ------------------------------------------
(Representative ) (Title)
CALIFRUIT CANNING COMPANY 141
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 accord-
ance 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.