Clara-Val Packing Co.

National Labor Relations Board - Board Decisions

Dec 16, 1949

87 N.L.R.B. 703 (N.L.R.B. 1949)

In the Matter of CLARA-VAL PACKING COMPANY and NORA E. STIERS,
AN INDIVIDUAL
In the Matter Of CANNERY WAREHOUSEMEN, FOOD PROCESSORS, DRIVERS
AND HELPERS, LOCAL UNION No. 679, AFL and NORA E. STIERS,,
AN INDIVIDUAL
Cases Nos . 20-CA-117 and 20-CB-29.Decided December 16, 1945
DECISION
AND
ORDER
On June 6, 1949, Trial Examiner Josef L. Hektoen issued his Inter-
mediate Report in the above-entitled proceeding, finding that the
Respondents 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 filed exceptions to the Intermediate
Report and supporting brief. The Respondents' request for oral
argument is hereby denied because the record and the exceptions and
brief, in our opinion, adequately present the issues and the positions of
the parties.
The Board 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-
mediate Report, the exceptions and brief filed by the Respondents,
and the entire record in the cases, and hereby adopts the findings,
conclusions, and recommendations of the Trial Examiner not incon-
sistent with our findings, conclusions, and order, hereinafter set forth.
1. The Union expelled Nora Stiers from membership because she
refused to honor a picket line which the Union had established at the
plant of another company with whom the Union had a labor dispute.
The Union then demanded that Respondent Clara-Val discharge
Stiers, in accordance with the union-security provisions of their con-
tract. The Union accompanied this demand with a threat to strike
i Pursuant to Section 203.33 ( b) of the National Labor Relations Board Rules and
Regulations ,, these cases were consolidated by order of the Regional Director for the Twen-
tieth Region ( San Francisco , California ) on November 30, 1948.
87 NLRB No. 120.'
703
704 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent Clara-Val's plant. Respondent Clara-Val thereupon dis-
charged Stiers on June 24, 1948. .
The Trial Examiner found, and we agree, that the contract in ques-
tion had been renewed in 1948 after the enactment of the amended
Act, and therefore that Section 103 did not preserve the contract as a
defense to the discharge. Accordingly, we agree with the Trial Exam-
iner's conclusions that the union-security provision of the contract,
executed without an election pursuant to Section 9 (e), did not sat-
isfy the requirements of the amended Act; that the Respondent Clara-
Val violated Section 8' (a) (3) and S (a) (1) of the amended Act by
discharging Stiers because she was no longer a member of the Union;
and that the Respondent Union violated Section 8 (b) (2) in causing
Respondent Clara-Val to discriminate against Stiers in violation of
Section 8 (a) (3).2
2. The Trial Examiner found that the Respondent Union, by caus-
ing Respondent Clara-Val discriminatorily to discharge Stiers, re-
strained and coerced employees in the exercise of the rights guaran-
teed by Section 7, thereby violating Section 8 (b) (1) (A) of the
amended Act.
Section 8 (b) (1) (A) provides:
It shall be an unfair labor practice fora labor organization or
its agents (1) to restrain or coerce (a) employees in the exercise of
the rights guaranteed in Section 7 . . 3
We have found that there was in effect no valid agreement requir-
ing Stiers to be a member of the Respondent Union as a condition
of employment. Accordingly, she was entitled to exercise the right
to engage in, or to refrain from engaging in, all the activities enu-
merated in Section 7 of the Act without restraint or coercion from
either the Respondent Company (Section 8 (a) (1)) or from the
Respondent Union (Section 8 (b) (1) (A) ). Because she exercised
the right, guaranteed by Section 7, to refrain from engaging in such
activities, the Union caused the Respondent Clara-Val discrimina-
torily to discharge her.
The legislative history of the amended Act establishes, as the Board
has found,4 that Section 8 (b) (1) (A) was designed by Congress to
2 H. Milton Newman, an individual d/b/a H. M. Newman , 85 NLRB 725.
Section 7 provides in part :
Employees shall have the right to form , join or assist labor organizations . . . and
shall also have the right to refrain from any or all of such activities except to the
extent that such right may be affected by any agreement requiring membership in a
labor organization as a condition of employment as authorized in Section 8 (a) (3).
4 National Maritime Union of America, at al ., 78 NLRB 971 ; National Maritime Union
of America, et al., 82 NLRB 1365; Perry Norvell Company, 80 NLRB 225; International
Typographical Union, et al ., 86 NLRB 951.
CLARA-VAL PACKING COMPANY 705
eliminate not only the use by unions of physical violence and coercion,
but also union threats of economic action against specific individuals
in an effort to compel them to join or assist a union. Holding, how-
ever, that-Congress did not intend a violation of Section 8 (b) (1)
(A) to flow automatically in all cases from a union's violation of Sec-
tion 8 (b) (2), the Board declared in the NNU case that "The touch-
stone of a strike which is violative of Section 8 (b) (1) (A) is nor-
mally the means by which it is accomplished, so long as its objective
is directly related to the interest of the strikers and not directed pri-
marily at compelling other employees to forego the rights which, Sec-
tion 7 protects." [Emphasis added.]
The present case falls squarely within the. underscored exception.
It involves union conduct which was directed primarily at compelling
employee Stiers to forego the rights which Section 7 protects. That
Section 8 (b) (1) (A) proscribes the threat of the type of economic
action in question, has already been decided in the Smith Cabinet and
Seamprufe cases.5 In both these cases a majority of the Board found
that the mere voicing of a threat that employees who did not join
the union would lose their jobs when the union organized the plant,
-was .a violation of Section 8 (b) (1) (A). And in the Julius Resnick
case B the Board held that the mere execution of an illegal union-
security contract restrained employees in the exercise of rights guar-
anteed by Section 7 of the Act.7 In view of these decisions, in which
our dissenting colleague joined, it would be anomalous to conclude
that the actual effectuation of the threat, or enforcement of the illegal
,contract against a specific individual employee, did not likewise con-
stitute restraint.
We cannot subscribe to the view of the dissent that the Union's
action here was directed only to the employer. The discharge and the
reason for it would inevitably become known to the other employees,
and would coerce and restrain them to join the Union or retain their
membership in it. We would not permit the Union to avoid responsi-
bility for this inevitable and direct result of its action in procuring
-the discharge of a particular employee.
We conclude, therefore, that by causing Stiers to be discrimina-
torily discharged the Union restrained Stiers in the exercise of her
Tights guaranteed under Section 7 of the amended Act and thereby
violated Section 8 (b) (1) (A) of the amended Act.
8 Smith Cabinet Manufacturing Company, Inc., 81 NLRB 886; Seamprufe, Incorporated,
=82 NLRB 892 . ' ( Chairman Herzog and Member Houston dissenting.)
a Julius Resnick, Inc.. 86 NLRB 38.
See also the numerous representation cases in which the Board held that an illegal
security clause, "b3' its very existence acts as a restraint on employees desiring to refrain
.from union activity." Hazel-Atlas Co., 85 NLRB 1305. -
706 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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 :
1. The Respondent, Clara-Val Packing Company, Morgan Hill,
California, its officers, agents, successors, and assigns, shall:
(a) Cease.and desist from :
(1) Encouraging membership in Cannery Warehousemen, Food
Processors, Drivers and Helpers, Local Union No. 679, AFL, or in any
other labor organization of its employees, by discharging any of its
employees or discriminating in any other manner in regard to their
hire or tenure of employment or any term or condition of their
employment;
(2) In any other manner interfering with, restraining, or coercing
its employees in the right to refrain from exercising the rights guaran-
teed in Section 7 of the Act, except to the extent that such rights may
he affected by an agr eement requiring membership in a labor organiza-
tion as a condition of employment as authorized by Section 8 (a) (3)
of the Act.
(b) Take the following affirmative action, which the Board finds
will effectuate the policies of the Act :
(1) Offer to Nora E. Stiers immediate and full reinstatement to her
former or a substantially equivalent position without prejudice to her
seniority or other rights and privileges;
(2) Post at its plant at Morgan Hill, California, copies of the notice
attached hereto as Appendix A.8 Copies of said notice, to be fur-
nished by the Regional Director for the Twentieth Region, shall,.after
being duly signed by the Respondent Company's representative, be
posted by it immediately upon receipt thereof, and be maintained by
it for a period of at least sixty (60) consecutive days thereafter, in con-
spicuous places, including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by the Respond-
ent Company to insure that such notices are not altered, defaced, or
covered by any other material;
(3) Notify the Regional Director for the Twentieth Region in writ-
ing, within ten (10) days from the date df this Decision and Order,
what steps the Respondent Company has taken to comply herewith.
2. The Respondent, Cannery Warehousemen, Food Processors,
Drivers and Helpers, Local Union No. 679, AFL, its officers, repre-
sentatives and agents, shall:
8 In the event this Order is enforced by decree of a United States Court of Appeals, there
shall be_inserted before the words : "A DECISION AND ORDER" the words : "A DECREE
OF THE UNITED STATES COURT OF APPEALS ENFORCING."
CLARA-VAL PACKING COMPANY 707
(a) Cease and desist from :
(1) Causing, by threatening strike action, Clara-Val Packing Com-
pany, its officers, agents, successors, or assigns, to discharge or other-
wise discriminate against employees because they are not members in
good standing in Cannery Warehousemen, Food Processors, Drivers
and Helpers, Local Union No. 679, AFL, except in accordance with
Section 8 (a) (3) of the Act;
(2) In any other planner causing or attempting to cause Clara-Val
Packing Company, its officers, agents, successors, or assigns, to discrim-
inate against its employees in violation of Section 8 (a) (3) of the Act;
(3) Restraining or coercing employees of Clara-Val Packing Com-
pany, its successors, or assigns, in the exercise of their right to refrain
from any or all of the concerted activities guaranteed by Section 7.
(b) Take the following affirmative action, which the Board finds
will effectuate the policies of the Act :
(1) Post at its offices, if any, at Morgan Hill, California, and wher-
ever notices to its members are customarily posted, copies of the
notice attached hereto as Appendix B.9 Copies of said notice, to be
furnished by the Regional Director for the Twentieth Region, shall,
after being duly signed by the Respondent Union's representative, be
posted by it immediately upon receipt thereof, and be maintained by
it for a period of at least sixty (60) consecutive days thereafter, in
conspicuous places, including all places where notices to members are
customarily posted. Reasonable steps shall be taken by the Respondent
Union to insure that such notices are not altered, defaced, or covered by
any other material;
(2) Notify the Regional Director for the Twentieth Region in writ-
ing, within ten (10) days from the date of this Decision and Order,
what steps it has taken to comply herewith.
3. Clara-Val Packing Company, its officersy agents, successors, and
assigns, and Cannery Warehousemen, Food Processors, Drivers and
Helpers, Local Union No. 679, AFL, its officers, representatives, and
agents, shall jointly and severally make whole Nora E. Stiers for any
loss of pay she may have suffered because of the discrimination against
her, by payment to her of a sum of money equal to the amount she
normally would have earned as wages from June 24, 1948, the date
she was discriminatorily discharged, to the date of the Respondent
Company's offer of reinstatement, less her net earnings during said
period.
MEMBER MURDOCK took no part in the consideration of the above
Decision and Order.
U In the event this order is enforced by decree of a United States Court of Appeals, there
shall he inserted before the words : "A DECISION AND ORDER " the words : "A DECREE
OF THE UNITED STATES COURT OF APPEALS ENFORCING."
877359-50-vol. 87-46
WS DECISIONS OF NATIONAL LABOR RELATIONS BOARD
MEMBER REYNOLDS, concurring in part, dissenting in part :
I concur in the finding of the majority of the Board that the Re-
spondent Clara-Val violated Section 8 (a) (3) and (1) of the Act by
discharging Stiers because she was no longer a member of the Union.
I also concur in the finding that the Respondent Union violated Sec-
tion 8 (b) (2) of the Act by causing Clara-Val to discriminate against
Stiers in violation of Section 8 (a) (3). However, I disagree with
the finding that the Respondent Union also violated Section 8 (b)
(1) (A) of the Act by causing Clara-Val to discriminate against
Stiers.
Section 8 (b) (2) provides that it shall be an unfair labor practice
for a labor organization "to cause ... an employer to discriminate
against an employee in violation of subsection (a)- (3)." [Emphasis
added.] Section 8 (b) (1) (A), on the other hand, provides that it
shall be an.unf air labor practice for a labor organization "to restrain
or coerce . . . employees in the exercise of the rights guaranteed in
Section 7." [Emphasis added.] Thus Section 8 (b) (2) proscribes
certain union activity directed at employers, whereas Section 8 (b)
(1) (A) proscribes other union activity directed at employees. It
is the failure of my colleagues to observe this distinction which is,
in my opinion, responsible for their erroneous conclusion that the
conduct of the Respondent Union also violated Section 8 (b) (1) (A).
Our decisions imply the existence of this distinction. In the
NMU 10 and Perry il'orvell 11 cases, the Board considered allegations in
the complaints that by engaging in strikes the respective respondent
unions violated Section 8 (b) (1) (A) of the Act. In the NMU case
the strike,.like the union conduct in the present case, violated Section
8 (b) (2) of the Act. In the Perry Norvell case, it was not alleged,
nor did it appear, that the strike violated Section 8 (b) (2). In
both cases the Board found that the strike did not violate Section
8 (b) (1) (A). Yet in both cases the Board acknowledged that all
strikes, including the strikes in question, encroached upon the rights
of employees guaranteed'by Section 8 (b) (1) (A) of the Act.
In the Perry Norvell case, despite the effect of the strike upon the
rights of employees guaranteed in Section 8 (b) (1) (A), the Board
stated that "the legislative history of the Act shows that, by this
particular Section [8 (b) (1) (A)], Congress primarily intended to
proscribe the coercive conduct which sometimes accompanies a strike,
but not the strike itself." The reason for this elimination of strikes
generally from the purview of Section 8 (b) (1) (A) can, I believe,
be succinctly expressed in language from the NMU case, that a strike
10 National Maritime Union of America, et al. (The Texas Company), 78 NLRB 971.
11 United Shoe Workers of America , et al. (Perry Norvell ), 80 NLRB 225.
CLARA-VAL PACKING COMPANY 709
has "as its prime objective the protection of- employment interests
of [union] members, and not the coercing of non-members."
Thus the decisions of the NH U and Perry Norvell cases, the lan-
guage of Section 8 (b) (1) (A) and 8 (b) (2), and the legislative
history of Section 8 (b) (1) (A) 12 indicate that where action by a
union is directed at employers, the incidental effect of such action upon
employee rights protected by Section 8 (b) (1) (A) is not sufficient
to bring the action within the proscription of Section 8 (b) (1) (A).
If this were not so, unions would be forever precluded from exerting
upon employers, in furtherance of valid union objectives, primary
pressures such as strikes and peaceful picketing despite the fact that
these activities impose upon disputant employers and the striking and
picketing employees great hardships and expense without regard to
the effect of the activities upon non-participating employees whose
rights Section 8 (b) (1) (A) seeks to protect. Mindful, therefore,
of the distinction between subsections 8 (b) (1) (A) and 8 (b)
(2), unions are, in my opinion, afforded an area of primary activity
which being primarily directed at employers is not to be circum-
scribed because it incidentally may affect employee rights protected
in Section 8 (b) (1) (A).13
Because the Union's activity in this case was directed primarily at
Clara-Val rather than at coercing or restraining employees, the Smith
Cabinet and Seamprufe cases, cited by the majority, are not con-
trolling. In these cases the union threats which the Board found to
be coercive were made directly to individual employees. Nor in my
opinion is it controlling that in the Julius Resnick case, also cited by the
majority, the Board held that an employer who violated Section 8 (a)
(2) by the mere execution of an illegal union-security agreement, also
restrained employees in violation of Section 8 (a) (1) by the same
'conduct. The Board generally finds that an employer automatically
interferes with, restrains, or coerces employees as a result of commit-
ting other unfair labor practices. However, in the NM U case, supra,
the Board specifically stated that there was no "suggestion in the
legislative history of Section 8 (b) (1) (A) that `coercion' and 're-
straint' may be found to flow automatically from a union's violation
of Section 8 (b) (2)" where the efforts of the union were not directed
against employees. Moreover, the same rule cannot be applied to em-
ployers and unions with respect to derivative violations of subsections
8 (a) (1) and 8 (b) (1) (A) respectively, for 8 (a) (1) proscribes
12 See the NMU and Perry Norvell cases, supra, for a comprehensive study of the legis-
lative history of Section 8 (b) (1) (A).
>3Cf. Oil Workers International Union, Local Union 346 (CIO) and The Pure Oil Com-
pary, 84 NLRB 315.
710 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
"interfering with" employees in the exercise of their rights guaranteed.
in Section 7, whereas there is no similar proscription in 8 (b) (1) (A).
Upon the basis of all the foregoing I am of the opinion that where
the Board finds that certain conduct of a union violates Section 8 (b)
(2) of the Act, the same conduct does not constitute a violation of
Section 8 (b) (1) (A). Accordingly, as we are finding that the con-
duct of the Respondent Union violated Section 8 (b) (2), I would dis-
miss the allegation in the complaint that the Respondent Union, by the
same conduct, violated Section 8 (b) (1) (A) of the Act.
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Rela-
tions Board, and in order to effectuate the policies of the National
Labor Relations Act, as amended, we hereby notify our employees
that:
WE WILL NOT encourage membership in CANNERY WAREHOUSE-
MEN FOOD PROCESSORS, DRIVERS AND HELPERS, LOCAL UNION No. 679,.
AFL, or in any other labor organization of our employees, by
discriminatorily discharging any of our employees or discrim-
inating in any other manner in regard to their hire or tenure of
employment, or any terms or conditions of employment.
AVE WILL NOT in any other manner interfere with, restrain, or
coerce our employees in the right to refrain from any or all of
the concerted activities guaranted them by Section 7 of the Act,
except to the extent that such right may be affected by an agree-
ment requiring membership in a labor organization as a condi-
tion of employment, as authorized in Section 8 (a) (3) of the Act.
WE WILL make Nora E. Stiers whole for any loss of pay suffered
as a result of the discrimination against her.
ALL our employees are free to become, remain, or to refrain from
becoming or remaining,. members in good standing of the above-
named Union or any other labor organization except to the extent
that this right may be affected by an agreement in conformity with
Section 8 (a) (3) of the amended Act.
CLARA-VAL PACKING COMPANY,
Employer.
By -----------------------------------
(Representative) (Title)
Dated--------------------
This notice must remain posted for sixty (60) days from the date
hereof, and must not be altered, defaced, or covered by any other
material.
CLARA-VAL PACKING COMPANY 711
APPENDIX B
NOTICE
To ALL MEMBERS OF CANNERY WAREHOUSEMEN , FOOD PROCESSORS,
DRIVERS AND HELPERS, LOCAL UNION No. 679, AFL, AND TO ALL
EMPLOYEES OF CLARA-VAL PACKING COMPANY
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Telations Act, as amended, we hereby notify you that :
WE WILL NOT cause, by threatening strike action, CLARA-VAL
PACKING COMPANY, its agents, successors, or assigns, to discharge
or otherwise discriminate against employees because they are not
members in good standing in CANNERY WAREHOUSEMEN, FOOD
PROCESSORS, DRIVERS AND HELPERS, LOCAL UNION No. 679, AFL,
except in accordance with Section 8 (a) (3) of the Act.
WE WILL NOT in any other manner cause or attempt to cause
CLARA-VAL PACKING COMPANY, its agents, successors, or assigns
to discriminate against its employees in violation of Section 8
(a) (3) of the Act.
WE WILL NOT restrain or coerce employees of CLARA-VAL PACK-
ING COMPANY, its successors, or assigns, in the exercise of the
right to refrain from any or all of the concerted activities guaran-
teed to them by Section 7 of the Act.
WE WILL make Nora E. Stiers whole for any loss of pay she
may have suffered because of the discrimination against her.
CANNERY WAREHOUSEMEN, FOOD PROCESSORS,
DRIVERS AND HELPERS, LOCAL UNION No. 679,
AFL.
By --------------------------------------------
(Representative) (Title)
Date --------------------
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. Eugene K. Kennedy, for the General Counsel.
Mr. I. B. Padway, of San Francisco, Calif., for the Respondent Union.
Mr. Vincent C. Giordano, of Morgan Hill, Calif., for the Respondent Company.
STATEMENT OF THE CASE
Upon charges duly filed by Nora E. Stiers, an individual, the General Counsel
of the National Labor Relations Board, herein called respectively the General
Counsel and the Board , by the Regional Director for the Twentieth Region (San
712 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Francisco, California), issued his consolidated complaint dated November 30',
1948, against Clara-Val Packing Company, herein called the Respondent Com-
pany, and Cannery Warehousemen, Food Processors, Drivers and Helpers, Local,
Union No. 679, AFL, herein called the Respondent Union, and jointly referred,
to as the Respondents, alleging that the Respondents had engaged in and were
engaging in unfair labor practices affecting commerce within the meaning of
Section 8 (a) (1) and (3) and Section 8 (b) (1) (A) and (2), respectively, and
Section 2 (6) and (7) of the National Labor Relations Act, 49 Stat. 449, as
amended by the Labor Management Relations Act, 61 Stat. 136, herein called the
Act. Copies of the complaint, accompanied by notice of hearing and copies of
the charges, were duly served upon the Respondents and Stiers.
With respect to the unfair labor practices, the complaint alleged in substance
that: (1) on or about June 24, 1948, the Respondent Company, at the request and.
demand of the Respondent Union, discharged and thereafter refused to rein-
state Stiers because of her alleged failure to maintain membership in good stand-
ing in the Respondent Union; and (2) by such acts the Respondent Company
acted in contravention of the provisions of Section 8 (a) (1) and (3) and the
Respondent Union acted in contravention of the provisions of Section 8 (b) (1)
(A) and (2), respectively, of the Act.
Neither Respondent filed an answer but both denied at the hearing, and the
Respondent Union denies in its brief thereafter filed, that they, or either of
them, acted in contravention of any provision of the Act.
Pursuant to notice, and a necessary postponement' a hearing was held on
March 23, 1949, at San Francisco, California, before the undersigned Josef L.
Hektoen, the Trial Examiner duly designated by the Chief Trial Examiner.
The General Counsel, the Respondent Company, and the Respondent Union were
represented by counsel and participated in the hearing. Full opportunity to
examine and cross-examine witnesses and to introduce evidence bearing upon,
the issues was afforded to all parties. The proceedings of the previous day cov-
ering some 26 pages of transcript were incorporated in the record by stipulation
and the exhibits offered by the General Counsel and the Respondent Union were
admitted into evidence. The motion of the General Counsel to amend the com-
plaint in two minor particulars is hereby allowed without objection. The General
Counsel and counsel for the Respondent Union argued briefly on the record'..
After the close of the hearing, a brief was received from counsel for the Respond-
ent Union.
Upon the entire record in the case,' the undersigned makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT COMPANY
The Respondent Company, Clara-Val Packing Company, is a California cor-
poration maintaining its principal place of business at Morgan Hill, California.
i The train in which the undersigned was proceeding to the place of the hearing suffered
a wreck shortly before midnight, March 21, 1949, the day before the hearing was scheduled.
and arrived at its destination some 10 hours late. Upon being informed of the unavoidable
delay suffered by the undersigned in consequence of this mishap, the parties, and the
official reporter, being present at the place of hearing, determined "that a record be made
at this time for the purpose of submitting to the Trial Examiner and shall be considered
by him as though it were taken during the course of a formal hearing opened by the Trial
Examiner."
2 No witnesses were called, there being no dispute as to the facts in the case, which were
stipulated by the parties.
CLARA-VAL PACKING COMPANY 713
It is there engaged in processing and shipping fruit. During the last half of
1948, it bought fruit valued at more than $300,000, all from points within the
State of California. During the same period , it sold finished products valued
at approximately $400,000, of which about 90 percent by value was shipped by
it to points outside the State of California.
The Respondent Company admits, and the undersigned finds, that it is en-
gaged in commerce, within the meaning of the Act.
II. THE ORGANIZATION INVOLVED
Cannery Warehousemen, Food Processors, Drivers and Helpers, Local Union
No. 679, AFL, is a labor organization admitting to membership employees of the
Respondent Company.
III. THE UNFAIR LABOR PRACTICES
A. Background and undisputed facts
As stated above, there is no dispute as to the factual situation obtaining in
this case, the only question for determination being the legal conclusions that
flow therefrom.
On June 24, 1948, the date of Stiers' discharge, the Respondents were in con-
tractual relations pursuant to the terms of a contract between California
Processors and Growers, Inc., a group of California cannery operators of which
the Respondent Company is not a member, and California State Council of Can-
nery Unions, AFL, of which the Respondent Union is a part, the Respondents
having agreed to operate under the terms of such contract. The date of their
agreement to this effect does not appear with certainty in the record. In any
event, the "master" contract was adopted on June 1.0, 1941., was thereafter
amended on six occasions, the last of these having occurred on May 20, 1947,3 and
it was this amended contract under the terms of which Stiers was discharged.
The contract provided that employees in Stiers' category "shall be and shall
remain members of the local in good standing as a condition of continued em-
ployment" and further provided that, absent the timely service of certain pre-
scribed notices by either party thereto upon the other, the contract "shall con-
tinue without expiration date." It further provided that March 1 of each year
be its "anniversary date." At the time of Stiers' discharge the March 1, 1948,
anniversary date of the contract had passed without service of such notice by
either party upon the other.
About the middle of June 1948, Stiers was a dues-paying member of the Re-
spondent Union and was employed by the Respondent Company. It came to the
attention of the former that Stiers, in violation of union rules, was in the habit
of penetrating union picket.lines at the plant of Driscoll Strawberries, Inc., with
which the Respondent Union was then engaged in an economic controversy, and
performing work at the struck plant after her tours of duty at the Respondent
Company's plant had been completed. She was tried by the Respondent Union,
found guilty, and assessed a fine of. $200, which was reduced to $25 in considera-
tion of her undertaking to cease violation of its laws in the future. Stiers failed
to pay any part of the fine, continued to breach the picket lines at the Driscoll
plant, and was thus rendered not in "good standing" in the Respondent Union:
On June 24, 1948, I. G. Ficarrota, business representative of the Respondent
Union, informed Vincent C. Giordano, president of the Respondent Company,
accordingly and demanded that it discharge her. The demand was accompanied
8 The contract was made effective as of March 1, 1947.
714 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
by a threat that the Respondent Company would be struck and picketed should it
refuse to discharge Stiers.
The Respondent Company discharged Stiers on the same day.
B. Conclusions
The General Counsel's position is that the contract section setting forth the
term of the agreement fails to fall within the protection of Section 102 of the
Act 4 in that it provides for annual renewal and that its closed-shop provision
was therefore inapplicable after March 1, 1948. Counsel for the Respondent
Union contends that the contract was neither "renewed" nor "extended," within
the meaning of Section 102 but was merely not "terminated," within the mean-
ing of its own provisions and that it therefore continued in full force and effect
and protected the parties against what it is tacitly admitted would otherwise
constitute violations of Sections 8 (a) (1) and (3) and 8 (b) (1) (A) and (2).
The language of the contract, providing as it does for an annual "anniversary
date" and for notice of termination within a stated period before such (late,
constitutes, in the opinion of the undersigned, despite that by its terms, absent
notice of termination or certain other prescribed notices, the contract shall
continue in effect "without expiration date," a form of "automatic renewal
clause" often considered by the Board and the courts in both representation
and dual-unionism matters.' It appears to the undersigned to be clear from
the holdings in such cases that, should a rival union file a petition before what
is known as the "Mill B" or automatic renewal date,' the contract would not be
held a bar to the proceeding. Similarly, the undersigned believes that activities
on behalf of a rival union in a protected period before an anniversary date of
the contract, would receive safeguard. By analogy then, it must be found that
the contract provisions contained an "automatic renewal clause."
The undersigned finds that the contract was on March 1, 1948, renewed or
extended, within the meaning of Section 102 of the Act.
It follows that, although the contract was valid under the Act before its
amendment, since the amended Act not only abolishes the closed shop but also
provides for a union-security election before so much as a 30-day union shop
provision may legally be included in a collective bargaining agreement,' the
Respondent Company has discriminated against Stiers in regard to the hire
and tenure of her employment to encourage membership in a labor. organization,
and has thereby interfered with, restrained, and coerced its employees in the
4 Sec. 102. No provision of this title shall be deemed to make an unfair labor prac-
tice any act which was performed prior to the date of the enactment of this Act
which did not constitute an unfair labor practice prior thereto, and the provisions of
section 8 (a) (3) and section 8 (b) (2) of the National Labor Relations Act as
amended by this title shall not make an unfair labor practice the performance of any
obligation under a collective -bargaining agreement entered into prior to the date of
the enactment of this Act , or (in the case of an agreement for a period of not more
than one year) entered into on or after such date of enactment, but prior to the
effective date of this title, if the performance of such obligation would not have
constituted an unfair labor practice under section 8 (3) of the National Labor Rela-
tions Act prior to the effective date of this title , unless such agreement was renewed
or extended subsequent thereto. [Emphasis supplied.]
,The Act was enacted on June 23, 1947, the effective date of the amendments made by
Title I thereof being August 22, 1947.
5 See e . g., N. L. R . B. v. Geraldine Novelty Company, Inc., et al ., 173 F. 2d 14 ( C. A. 2),
and cases therein cited.
0 Mill B, Inc ., 40 NLRB 346, 351.
7 See Section 8 (a) (3) and the proviso thereto.
CLARA-VAL PACKING COMPANY 715;
exercise of the rights guaranteed in Section 7 of the Act. It also follows that,
by causing it to do so, the Respondent Union has restrained and coerced an
employee in the exercise of those rights. The undersigned so finds.
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 Respondent Company set forth in Sec-
tion I, above, have a close, intimate, and substantial relation to trade, traffic,.
and commerce among the several States and tend to lead to labor disputes burden-
ing and obstructing commerce and the free flow of commerce.
V. THE REMEDY
Having found that the Respondents, and each of them, have engaged in and.
are engaging in certain unfair labor practices, it will be recommended 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 Respondent Company on June 24, 1948, discriminated
against Nora E. Stiers in regard to the hire and tenure of her employment be-
cause she failed to maintain good standing in the Respondent Union, and that the
latter by causing it to do so, restrained and coerced her in the exercise of the
rights guaranteed in Section 7 of the Act. It will therefore be recommended that
the Respondent Company offer to her immediate and full reinstatement to her
former or substantially equivalent position 8 without prejudice to her seniority
or other rights and privileges. It will be further recommended that the Re-
spondents, jointly and severally, make her whole for any loss of pay she may
have suffered by reason of the discrimination and coercion against her by pay-
ment to her of a sum of money equal to that which she normally would have
earned as wages from the date of her discriminatory discharge, to the date of
the Respondent Company's offer of reinstatement,0 less her net earnings during.
said period.10
Upon the basis of the foregoing findings of fact and upon the entire record in
the case, the undersigned makes the following :
CONCLUSIONS OF LAW
. 1. The Respondent Union, Cannery Warehousemen, Food Processors, Drivers
and Helpers, Local Union No. 679, AFL, is a labor organization, within the.
meaning of Section 2 (5) of the Act.
2. By discriminating in regard to the hire and tenure of employment of Nora,
E. •Stiers, thereby encouraging membership in the Respondent Union, the Re-
8 In accordance with the Board's consistent interpretation of the term, the expression
"former or substantially equivalent position " is intended to mean "former position
wherever possible, and if such position is no longer in existence, then to a substantially
equivalent position." See The Chase National Bank of the City of New York, San Juan,
Puerto Rico, Branch, 65 NLRB 827.
9 See Section 10 (c) of the Act which provides that back pay which will effectuate the
policies of the Act "may be required of the employer or labor organization , as the case
may be , responsible for the discrimination . . Since the Respondent Company, as is'
shown above and by the transcript, would not have discharged Stiers but for the pressure
put upon it to do. so by the Respondent Union, it appears to be expedient to require that
both Respondents share liability for the consequences of their mutually illegal acts.
10 See Crossett Lumber Company , 8 NLRB 440. Republic Steel Corporation v. N. L. R. B.,
311 U. S. 7.
716 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
spondent Company, Clara -Val Packing Company, has engaged in and is en-
gaging in unfair labor practices , within the meaning of Section 8 (a) (3) of
the Act.
3. By interfering with, restraining, and coercing its employees in the exer-
cise of rights guaranteed in Section 7 of the Act, the Respondent Company has
engaged in and is engaging in unfair labor practices, within the meaning of
Section 8 (a) (1) of the Act.
4. By causing the Respondent Company to discriminate against an employee
in violation of Section 8 (a) (3) of the Act, the Respondent Union has engaged
in and is engaging in unfair labor practices, within the meaning of Section 8
(b) (2) of the Act.
. 5. By restraining and coercing employees in the exercise of the rights guar-
anteed in Section 7 of the Act, the Respondent Union has engaged in and is en-
gaging in unfair labor practices, within the meaning of Section 8 (b) (1) (A)
of the Act.
6. The aforesaid unfair labor practices are unfair labor practices affecting
commerce, within the meaning of Section 2 (6) and (7) of the Act.
RECOMMENDATIONS
Upon the basis of the above findings of fact and conclusions of law, and upon
the entire record herein, the undersigned recommends that: _
1. The Respondent Company, Clara-Val Packing Company, Morgan Hill, Cali-
fornia, its officers, agents, successors, and assigns, shall:
a. Cease and desist from :
(1) Encouraging membership in Cannery Warehousemen, Food Processors,
Drivers and Helpers, Local Union No. 670, AFL, or in any other labor organiza-
tion of its employees, by discriminating in regard to their hire or tenure of
employment or any term or condition of their employment ;
(2) In any other manner interfering with, restraining, or coercing its em-
ployees in the exercise of the rights guaranteed in Section 7 of the Act.
b. Take the following affirmative action, which the undersigned finds will
effectuate the policies of the Act :
(1) Offer to Nora E. Stiers immediate and full reinstatement to her former
or substantially equivalent position without prejudice to her seniority or other
rights and privileges ;
(2) Jointly and severally with the Respondent Union, make her whole for
any loss of pay she may have suffered by reason of their discrimination and re-
straint and coercion against her, in the manner set forth in the section en-
titled "The remedy," above ;
(3) Post at its plant at Morgan Hill, California, copies of the notice at-
tached hereto and marked Appendix A. Copies of said notice, to be furnished
by the Regional Director for the,Twentieth Region, shall, after being duly signed
by the Respondent Company's representative, be posted by it immediately upon
receipt thereof, and be maintained by it for a period of 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 Respondent Company to insure that such notices are not altered, defaced,
,or covered by any other material ;
(4) Notify the Regional Director for the Twentieth Region in writing, within
twenty (20) days from the receipt of this Intermediate Report, what steps the
Respondent Company has taken to comply herewith.
CLARA-VAL PACKING COMPANY 717
• 2. The Respondent Union, Cannery Warehousemen, Food Processors, Drivers
and Helpers, Local Union No. 679, its officers, agents, successors, and assigns,
:shall :
a: Cease and desist from :
(1) Causing or attempting to cause Clara-Val Packing Company, or any
other employer, to discriminate against an employee in violation of Section 8
(a) (3) of the Act;
(2) In any other manner restraining or coercing employees in the exercise
-of the rights guaranteed in Section 7 of the Act.
b. Take the following affirmative action, which the undersigned finds will
-effectuate the policies of the Act :
(1) Jointly and severally with the Respondent Company, make whole Nora
E. Stiers for any loss of pay she may have suffered by reason of their discrimina-
tion and restraint and coercion against her, in the manner set forth in-the Sec-
tion entitled "The remedy," above ;
(2) -Post at its offices, if any, at Morgan Hill, California, and post or offer
to post, at the plant of Clara-Val Packing Company, of the same place, copies
-of the notice attached hereto and marked Appendix B. Copies of said notice,
to be furnished by the Regional Director for the Twentieth Region, shall, after
being duly signed by the Respondent Union's representative, be posted by it
immediately upon receipt thereof, and be maintained by it for a period of at
least sixty (60) consecutive days thereafter, in conspicuous places, including
.all places where notices to members are customarily posted. Reasonable steps
-shall be taken by the Respondent Union to insure that such notices are not
.altered, defaced, or covered by any other material. Copies of the notice shall
be posted, or attempted to be posted, at the plant of the Respondent Company
.and maintained in the fashion set out above ;
(3) Notify the Regional Director for the Twentieth Region in writing, with-
in twenty (20) days from the receipt of this Intermediate Report what steps
it has taken to comply herewith.
It is further recommended that unless on or before twenty (20) days from the
receipt of this Intermediate Report, the Respondent Company notifies said
Regional Director in writing that it will comply with the foregoing recom-
mendations, the National Labor Relations Board issue an order requiring it
to take the action aforesaid.
It is further recommended that unless on or before twenty (20) days from
the receipt of this Intermediate Report, the Respondent Union notifies said
Regional Director in writing that it will comply with the foregoing recom-
mendations, the National Labor Relations Board issue an order requiring it to
take the action aforesaid.
As provided in Section 203.46 of the Rules and Regulations of the National
Labor Relations Board any party may, within twenty (20) days from the date
of service of the order transferring the case to the Board, pursuant to Section
203.45 of said Rules and Regulations, file with the Board, Washington 25, D. C.,
an original and six copies of a statement in writing setting forth such exceptions
to the Intermediate Report or to any other part of the record or proceeding (in-
cluding rulings upon all motions or objections) as he relies upon, together with
the original and six copies of a brief in support thereof ; and any part may,
within the same period, file an original and six copies of 'a brief in support of
the Intermediate Report. Immediately upon the filing of such statement of ex-
ceptions and/or briefs, the party filing the same shall serve a copy thereof upon
718 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
each of the other parties. Statements of exceptions and briefs shall designate
by precise citation the portions of the record relied upon and shall be legibly
printed or mimeographed, and if mimeographed shall be double spaced. Proof
of service on the other parties of all papers filed with the Board shall be promptly
made as required by Section 203.85. As further provided in said Section 203.46,.
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.
In the event no Statement of Exceptions is filed as provided by the aforesaid
Rules and Regulations, the findings, conclusions, recommendations, and rec-
ommended order herein contained shall, as provided in Section 203.48 of said
Rules and Regulations, be adopted by the Board, and become its findings, con-
clusions, and order, and all objections thereto shall be deemed waived for all
purposes.
Dated at Washington, D. C., this 6th day of June 1949.
JOSEF L. HEKTOEN,
Trial Examiner.
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 discriminate in regard to the hire or tenure of employment
or any term or condition of employment of any employee to encourage mem-
bership in CANNERY WAREHOUSEMEN, FOOD PROCESSORS, DRIVERS AND HELPERS,
LOCAL UNION No. 679, AFL, or any other labor organization.
WE WILL OFFER to Nora E. Stiers immediate and full reinstatement to her
former or substantially equivalent position, and jointly and severally with
CANNERY WAREHOUSEMEN, FOOD PROCESSORS, DRIVERS AND HELPERS, LOCAL
UNION No. 679, AFL, make her whole for any loss of pay suffered as a
result of the discrimination and restraint and coercion against her.
CLARA-VAL PACKING COMPANY,
Employer.
By -----------------------------------
(Representative ) (Title)
Dated --------------------
This notice must remain posted for 60 days from the date hereof, and must
not be altered, defaced, or covered by any other material.
APPENDIX B
NOTICE To ALL MEMBERS
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 members that :
WE WILL NOT cause or attempt to cause CLARA-VAL PACKING COMPANY,
Morgan Hill, California, or any other employer, to discriminate against its
employees in regard to their hire or tenure of employment or any term or
condition of employment to encourage membership in any labor organiza-
tion in violation of Section 8 (a) (3) of the National Labor Relations Act.
CLARA-VAL PACKING COMPANY 719
WE WILL, jointly and severally with CLARA-VAL PACKING COMPANY, make
Nora E. Stiers whole for any loss of pay suffered as a result of the discrimi-
nation and restraint and coercion against her.
CANNERY WAREHOUSEMEN, F OOD PROCESSORS , DRIVERS
AND HELPERS, LOCAL UNION No. 679, AFL,
Labor Organization.
---------------
(Representative) (Title)
Dated --------------------
This notice must remain posted for 60 days from the date hereof, and must
-not be altered, defaced, or covered by any other material.