Columbia River Packers Association, Inc.

National Labor Relations Board - Board Decisions

Apr 7, 1942

40 N.L.R.B. 246 (N.L.R.B. 1942)

In the Matter Of COLUMBIA RIVER PACKERS AssoCIA'ION , INC. and
COLUMBIA RIVER GILLNET FISHERMEN 'S UNION AND AFFILIATED
CANNERY WORKERS, CHARTERED BY THU SEAFARERS ' INTERNATIONAL
UNION OF NORTH AMERICA, AFFILIATED WITH THE A. F. L.
Cases Nos. R-3549 and R-3550.-Decided April 7, 1942
Jurisdiction : fish canning industry.
Investigation and Certification of Representatives : existence of question: refusal
to accord petitioner recognition until certified by the Board ; closed-shop
contract which contemplated an election before it should become effective,
held no bar; seasonal employees having worked less than 15 days during
previous season in plant where election is to be held, not eligible to vote-
since employees should not be permitted to vote in more than one election,
seasonal employees who worked equal number of days in each plant per-
mitted to vote in plant in which they worked most recently ; seasonal em-
ployees who worked in each plant permitted to vote in plant in which they
worked the greater number of days-elections necessary.
Units Appropriate for Collective Bargaining : separate unit for each of two plants
of the Company held appropriate
Definitions : labor organizations which represent cannery employees of a fish
canning company are not disqualified from serving this function under the
Act because officers of the respective organizations also represent fisher-
men who are not employees and cannot be represented by labor oraginzations,
within the meaning of the Act.
James H. Cellars, of Astoria, Oreg., for the Company.
A. W. Norblad, of Astoria, Oreg., for Gillnet Union.
F. M. Franciscovich, of Astoria, Oreg., for C. R. F. P. U.
H. G. Moorhead, Jr., ,of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTIONS
STATEMENT OF THE CASE
On October 20, 1941, Columbia River Gillnet Fishermen's Union
and Affiliated Cannery Workers, Chartered by the Seafarers' Inter-
national Union of North America, affiliated with the A. F. of L.,
herein called Gillnet, filed with the Regional Director for the Nine-
teenth Region (Seattle, Washington) two petitions, each alleging
that a question affecting commerce had arisen concerning the repre-
sentation of employees of Columbia River Packers Association; Inc.,
Astoria, Oregon, herein called the Company, and requesting an in-
40 N. L. R. B., No. 37.
246
IDEAL SEATING COMPANY 247
vestigation and certification of representatives pursuant to Section
9 (c) of the National Labor Relations Act, 49 Stat. 449, herein called
the Act. On January 21, 1942, the National Labor Relations Board,
herein called the Board, acting pursuant to Section 9 (c) of the
Act and Article III, Section 3, of National Labor Relations Board
Rules and Regulations-Series 2, as amended, ordered an investiga-
tion and authorized the Regional Director to conduct it and to pro-
vide for an appropriate hearing on due notice, and acting pursuant
to Article III, Section 10 (c) (2) of said Rules and Regulations,
ordered that the cases be consolidated.
On January 26, 1942, the Regional Director issued a notice of
hearing to be held on the consolidated cases, and on January 29,
1942, an order postponing the hearing and notice of the postponed
hearing, copies of which were duly served upon the Company, Gillnet
and Columbia River Fishermen's Protective Union, herein called
C. R. F. P. U., a labor organization claiming to represent employees
directly affected by the investigation. Pursuant to notice, a hearing
was held at Astoria, Oregon, on February 16, 1942, before Charles
M. Brooks, the Trial Examiner duly designated by the Chief Trial
Examiner. The Company, Gillnet, and C. R. F. P. U. were repre-
sented by counsel or other representative and participated in the
hearing. Full opportunity to be heard, to examine and cross-
examine witnesses, and to introduce evidence bearing on the issues
was afforded all parties. During the course of the hearing the Trial
Examiner made rulings on motions and on objections to the admission
of evidence. The Board has reviewed the rulings of the Trial Ex-
aminer and finds that no prejudicial errors were committed. The
rulings are hereby affirmed.
Upon the entire record in the case the Board makes the following
FINDINGS OF FACT
I. THE BUSINESS OF THE COMPANY
Columbia River Packers Association, Inc., is an Oregon corpora-
tion engaged in the business of catching, transporting, processing,
and selling fish and other aquatic products. The Company operates
two fish cannery'qs in Alaska. On the Columbia River it operates
canneries in Altoona, Washington; Ellsworth, Washington; and
Astoria, Oregon. At Astoria it also operates a can factory and a
cold-storage plant. The petitions of Gillnet direct themselves to the
plants at Altoona and Ellsworth, respectively, and the cannery work-
ers there employed. At these plants the Company is engaged in the
business of processing and canning fish which it buys from river
fishermen. In 1941 the Company produced at its Altoona plant some
43,935 cases of salmon, and at its Ellsworth plant some 49,280 cases
of salmon and 1,433 of shad. From its home office in Astoria the
248 DECISIONS Or NATIONAL LABOR RELATIONS BOARD
Company sold 99 percent of these cases of canned fish for shipment
to points outside the State of Washington.
II. THE ORGANIZATIONS INVOLVED
Columbia River Gillnet Fishermen's Union and Affiliated Cannery
Workers, Chartered by the Seafarers' International Union of North
America, is a labor organization affiliated with the American Feder-
ation of Labor. It admits to membership the cannery, employees of
the Company.,
Columbia River Fisherm en's Protective Union is a labor organiza-
tion affiliated with the Congress of Industrial Organizations. It
admits to membership the cannery employees of the Company.
III. THE QUESTION CONCERNING REPRESENTATION
The Company by its vice'president notified Gillnet that the Com-
pany would bargain collectively with it only if Gillnet were certified
by the Board.
C. R. F. P. U. and the Company have in the past entered into
'collective bargaining contracts. The most recent of such contracts is
one negotiated on July 21, 1941, between C. R. F. P. U . and seven
'Columbia River fish-packing companies, including the Company. The
contract provides for annual automatic renewal if on or before March
31 no party gives notice of a desire to change any'provision of the
contract or to terminate it. It contains a provision requiring mem-
bership in C. R. F. P. U. as a condition of employment with the
Company. It also contains a - clause providing :
II (b) This agreement shall be in effect in all the plants of
the undersigned where the above-named union has a majority
of the employees as members of their union and so determined
by the National Labor Relations Board.
C. R. F. P. U. has not made a showing of a majority at Altoona
or Ellsworth, nor has it requested the Company to enforce the
"closed-shop" clause of the contract in either plant. We find that
the contract contemplated an election to be held among the em-
ployees of the Company 'in the Altoona and Ellsworth plants before
it should become effective at those plants, and that it is not a bar to
the present proceedings.
Prior to the hearing a Board field attorney made an investigation
to determine whether Gillnet represented a substantial number of
i Affiliated Cannery workers has executive officers who also represent fishermen , and,the
same is true of the cannery workers' division of,C. R F P. U. The fishermen are not
employees of the Company and fishermen's unions are not labor organizations within the
meaning of the Act. Columbia River Packers Assn v Hinton, 62 S. Ct. 520 Cannery
workers are employees, and only cannery workers are involved in the present proceeding.
IDEAL SEATING COMPANY 249
the employees of the Company at Altoona and at Ellsworth, and
the results of his investigation, which were introduced in evidence
at the. hearing, disclosed that Gillnet represented a substantial
number at each plant.2
We find that questions have arisen concerning the representation
of employees of the Company.
IV. THE EFFECT OF THE QUESTIONS CONCERNING REPRESENTATION
UPON COMMERCE
We find that the questions concerning representation which have
arisen, occurring in connection with the operations of the Company
described in Section I, above, have a close, intimate, and substantial
relation to trade, traffic, and commerce among the several States and
tend to lead to labor disputes burdening and obstructing commerce
,and the free flow of commerce.
V. THE APPROPRIATE UNITS
Gillnet contends that separate units are appropriate, one for the
employees of the Altoona plant, one for the employees of Ellsworth.
C. R. F. P. U. contends that these units are not appropriate and
that all cannery workers employed in the canning of salmon, tuna,
or crab in any and all plants located on the Columbia River should
be included in one unit. The Company took no position with regard
to the appropriate unit.
C. R. F. P. U. has since 1938 negotiated yearly contracts with the
Company and with other companies which operate canneries on the
Columbia River.3 But in the contract which C. R. F. P. U. nego-
tiated with the companies on July 21, 1941, the parties agreed that
the contract should be applicable only to the plants where C. R. F.
P. U. has a majority of employees as members and as so determined
by the Board. The secretary of Gillnet testified that the lower river
organization (C. R. F. P. U.) had called strikes over the protest of
upper river workers when there were fish in the upper river but
none in the lower river; he also testified that employees at Ells-
worth told him they did not receive proper pay for overtime work.
2 The field attorney checked dues ledgers of the unions against a Company pay roll of
August 9, 1941. He reported that at Altoona, where there are approximately 115 em-
ployees in the unit , 51 employees on the pay roll paid dues in some amount to Gillnet during
1941 ; at Ellsworth, where there were appioximately 42 in the unit at the date of the pay
roll , 24 employees on the pay roll' paid dues in some amount to Gillnet during 1941. During
the years 1940 and 1941 , 13 employees on the Altoona pay roll paid dues in some amount to
C. It P. P U., similarly 12 on the Ellsworth pay roll
There are nine companies operating canneries on the Columbia River. Six join with
the Company to negotiate for collective bargaining with C. R F. P. U. Of the two com-
panies which do not join, one has no union contract , one has a contract with a cannery,/
workers' union directly affiliated with AFL
'250 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
He stated that the employees of the Company at the upper river
plant at Ellsworth have not been satisfied with the representation
which C. R. F. P . U. has given them. He also testified that em-
ployees of the Company at both the Ellsworth and Altoona plants
prefer to be represented by Gillnet.
The business of the Company is to a certain extent centralized
in Astoria , where the Company maintains its business office, keeps
social security records of employees, and employs an oriental fore-
man who hires all oriental employees . Ellsworth plant normally'
'operates during 'a spring season from approximately May 1 to
August 1 with 45 employees , 20 of whom are oriental ; it also operates
-during a fall season of 10 to 30 days opening about September 10
and then employs 100 employees , 40 of whom are oriental . Altoona
operates from about August 1 to August 25 with about 120 employees,
40 of whom are orientals . Oriental employees are transferred from
plant to plant from time to time by the oriental foreman in Astoria,
and there is a crew of some 20 oriental employees transferred intact
from plant to plant from season to season. White employees are
hired locally by the respective Altoona and Ellsworth plant superin-
tendents , and normally there are only about 18 white employees
transferred between Altoona and Ellsworth , and these at the close
of respective seasons. Although the local superintendents testified
that they have in the past observed the wage rates and terms and
conditions of employment established in the contracts between the
Company and C. R. F. P . U., they have in all other respects complete
control of their respective plants, including power to discharge.
Under all the circumstances , including the fact that the C. R. F.
P. U. contract does not cover the plants here sought as separate
units unless and until that union demonstrates its majority in an
election, we find that separate units for the employees of the Altoona
plant and for the employees of the Ellsworth plant are appropriate.
The unions agree that if the Board should find such separate units
appropriate , each unit should include cannery employees and ex-
clude employees in the specific categories set forth below. We find
that all cannery employees at the Company 's Altoona and Ellsworth
plants, respectively , excluding machinists and truck drivers, launch
men employed as buyers, buyers , station foremen , foremen and as-
sistant foremen, and clerical employees , constitute two units appro-
priate for the purposes of collective bargaining , and that said units
will insure to employees of the Company at said plants the full
benefit of their right to self-organization and to collective bargain-
ing, and otherwise will effectuate the policies of the Act.
+The operation of the Company can be described only in terms of norm or average since
operations vary from year to year according to the year's fishing season and the varying
runs of fish.
IDEAL SEATING COMPANY
VI. THE DETERMINATION OF REPRESENTATIVES
251
We find that the questions concerning representation which have
arisen can be resolved by means of elections by secret ballot. The
1942 season has not yet started at either plant,,and the parties agree
that eligibility, to vote in elections should be determined by reference
to 1941 pay rolls. We are of the opinion that mid-season pay rolls
will most accurately reflect peak employment. We shall accordingly
direct that eligibility to vote in the election at Altoona shall be
determined by reference to the Altoona pay roll for the period end-
ing nearest to August 15, 1941, and in the election at Ellsworth by
reference to the Ellsworth pay roll for the period ending nearest to
September 15, 1941.
The Company employs both at Altoona and at Ellsworth large
numbers of employees who do not work a substantial period of time
and who do not" return to work from year to year.5 Gillnet proposes
that all employees who have not worked a total of 15 days at a plant
of the Company be excluded from the election to be held among its
employees. The contract which C. R. F. P. U. negotiated with the
Company on July 21, 1941, bound the Company not to employ any-
one not a member of C. R. F. P. U., but allowed to former employees
of the Company and to new employees a 15-day period wherein they
could be employed before joining that union. We find that eligi-
bility to vote should not extend to employees who in 1941 have
worked less than 15 days in the plant among whose employees the
election is to be held. Since employees should not be permitted to
vote in more than one election, we find and determine that for the
purposes of the elections employees who in 1941 have worked 15 days
or more in each of two or more plants of the Company shall be con-
sidered employees of the plant in which they worked the greater
number of days, and employees who in 1941 worked more than 15
days in each of two or more plants of the Company but an equal
number of days in each shall be considered employees of the plant
in which they worked most recently.
Upon the basis of the above findings of fact and upon the entire
record in the case, the Board makes the following :
CONCLUSIONS OF LAW
1. Questions affecting commerce have arisen concerning the repre-
sentation of employees of Columbia River Packers Association, Inc.,
At Ellsworth during the year's season, May-September, there were approximately 136
employees who worked less than 15 days, at Altoona there were 53. In the spring Ells-
worth has a normal complement of 45 employees , 75 percent of whom return from year to
year ; in the fall its normal complement Is 100 employees , and 25 to 32 percent return from
year to year. At Altoona the normal complement is 120 employees , about 50 percent return
from year to year.
252 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
within the meaning of Section 9 (c) and Section 2 (6) and (7) of
the National Labor Relations Act.
2. All cannery employees at the Company's Altoona and Ellsworth
plants, respectively, excluding machinists and truck drivers, launch
men employed as buyers, buyers, station foremen, foremen and assistant
foremen, and clerical employees, constitute two units appropriate for
the purposes of collective bargaining within the meaning of Section
9 (b) of the National Labor Relations Act.
DIRECTION OF ELECTIONS
By virtue of and pursuant to the power vested in the National
Labor Relations Board by Section 9 (c) of the National Labor Rela-
tions Act, 49 Stat. 449, and pursuant to Article III, Section 8, of
National Labor Relations Board Rules and Regulations-Series 2, as
amended, it is hereby
DIRECTED that, as part of the investigation authorized by the Board
to ascertain representatives for the purposes of collective bargaining
with Columbia River Packers Association, Inc., Astoria, Oregon,
separate elections by secret ballot shall be conducted as early as pos-
sible, but not later than thirty (30) days from the date of this Direc-
tion, under the direction and supervision of the Regional Director
for the Nineteenth Region, acting in this matter as agent for the
National Labor Relations Board and subject to Article III, Section
9, of said Rules and Regulations, among,
(a) All cannery employees of the Company at its Altoona plant,
whose names appear on the pay roll of the Company of date nearest
to August 15, 1941, including employees who did not work during
the pay-roll period because they were ill or on vacation or in the
active military service or training of the United States, or tem-
porarily laid off, but excluding all machinists and truck drivers,
launch men employed as buyers, buyers, station foremen, foremen
and assistant foremen, clerical employees, and employees who, in
1941, did not work at the plant a total of 15 days, or worked there
for a period shorter than that worked in another plant of the, Com-
pany, or worked at the Altoona plant for a period Less recent al-
though equal in duration to the longest period worked in another
plant of the Company, and employees who have since the pay-roll
date quit or been discharged for cause, to determine whether they
desire to be represented for purposes of collective bargaining by
Columbia River Gillnet Fishermen's Union and ' Affiliated Cannery
Workers, A. F. L., or by Columbia River Fishermen's Protective
Union, C. I. 0., or by neither;
(b) All cannery employees of the Company at its Ellsworth plant,
whose names appear on the pay roll of the Company of date nearest
to September 15, 1941, including employees who did not work during
IDEAL SEATING COMPANY 253
the pay-roll period because they were ill or on vacation or in the
active military service or training of the United States, or tem-
porarily laid off, but excluding all machinists and truck drivers,
launch men employed, as buyers, buyers, station foremen, foremen
and assistant foremen, clerical employees, and employees who, in
1941, did not work at the plant a total of 15 days, or worked there
for aperiod shorter than that worked in another plant of the Com-
pany, or worked at the Ellsworth plant for a period less recent al-
though equal in duration to the longest period worked in another
plant of the Company, and employees who have since the pay-roll
date quit or been discharged for cause, to determine whether they
desire to be represented for purposes of collective bargaining by Co-
lumbia River Gillnet Fishermen's Union and Affiliated Cannery
Workers, A. F. L., or by Columbia River Fishermen's Protective
Union, C. I. 0., or by neither.
In the Matter of COLUMBIA RIvER, PACKERS AssooIATION,.INC.,, and
COLUMBIA RIVER GILLNET FISHERMEN'S UNION AND AFFILIATED
CANNERY WORKERS, CHARTERED BY THE SEAFARERS' INTERNATIONAL
UNION OF NORTH AMERICA, AFFILIATED WITH THE A. F. L.
Cases Nos. R -35_1j9 and R-3550
SUPPLEMENTAL DECISION
AND
AMENDMENT TO DIRECTION OF-ELECTIONS
May 6,194.
On April 7, 1942, the National Labor Relations Board issued a
Decision and Direction of Elections in the above-entitled proceed-
ings,' directing that elections by secret ballot be conducted within
thirty (30) days of the date thereof among specified employees of
Columbia River Packers Association, herein called the Company, at
its Altoona, Washington, and Ellsworth, Washington, plants.
The Regional Director for the Nineteenth Region has advised the-
Board that it is impracticable to hold the elections within the time
limited in said Direction and has requested that the Direction be
amended to permit the holding of the election among employees at
the Company's Altoona plant within 30 days of July 15, 1942,2 and
to .permit the holding of the election among employees at the Com-
pany's Ellsworth plant within 30 days of the date of the Amendment,'
We shall amend the Direction in accordance with the proposals of
the Regional Director.
C. R. F. P. U. has filed a motion to amend the Direction with
respect to voting eligibility of employees as follows :
.. . in paragraph (a) of the Direction of Elections by striking
the following clause: "or worked there for a period shorter than
that worked in another plant of the Company," and substituting
the following : "or worked there for a period shorter than that
140 N. L R. B. 246.
2 Columbia River Gillnet Fishermen's Union (A. F. L), herein called Gillnet, and
Columbia River Fisheimen's Protective Union (C. I. 0.), herein called C. It. F. P. U.,
agree that the Direction should be so amended.
3 C R F P U has requested that the Direction be amended to postpone the time-
for election by a period of 30 days; Gillnet opposes this request.
40 N L. R. B., No. 37a.
254
COLUMBIA RIVER PACKERS ASSOCIATION , 255,
worked in the Ellsworth plant of the Company," and in para-
graph (b) of the Direction of Elections by striking the following:
"or worked there for a period shorter than that worked in another
plant of the Company," and by substituting the following : "or
-worked, there for a •period shorter than that worked -in the
Altoona plant of the Company." - -
An affidavit filed in behalf of C. R.. F. P. U. relates that certain
employees of the Company in 1941 worked a longer period of time
at its Astoria plant than they worked at either the Ellsworth plant
or the Altoona plant, that these employees will not be able to vote,
at either the Ellsworth plant or the Altoona plant because of -the,
limitations of the Direction, but that other employees who have
worked for shorter periods of time than these employees at the.
Ellsworth plant or 'at' the Altoona plant will be eligible to vote in
one of the elections. We are of the opinion that the facts called
to our attention by C. P. F. P. U. afford no basis for departure
from our usual policy of assigning to employees who work in more
than one plant of an employer a voting precinct or status in only
only one plant.' The motion to amend filed by C. R. F.- P. U. is,
accordingly denied.
In accordance with the request of the Regional Director, the Di-
rection of Elections issued in these matters on April 7, 1942, is,
hereby amended by striking and by inserting :
1. To strike the words "but not later than thirty (30) days from
the date of this Direction," and also ,to strike the word following
"of said Rules and Regulations," the same being the word "among".
2. (a) To insert following ^"(a)" and preceding the words, "All
cannery employees of the Company at its Altoona plant," the same
being the words first thereafter, the following : "An election to be
conducted not later than thirty (30) days from July 15, 1942, among."
(b) To insert following "(b)" and preceding the words "All can-
nery employees of the Company at its Ellsworth plant," the same
being the words first thereafter, the following : "An election to be
conducted not later than thirty (30) days from the date of this
Amendment among." _
4 See Matter of Western Union Telegraph Company and Telegraph Employees Independent
Union, 32 N L . R B 428; Matter of International Shoe Company and United Lubber
Workers of Amertica, Local #198, C. 1 0., 36 N. L. R B. 1173.