Douglas Canning Co., Inc.

National Labor Relations Board - Board Decisions

Aug 30, 1949

85 N.L.R.B. 1004 (N.L.R.B. 1949)

In the Matter of DOUGLAS CANNING COMPANY, INC. and UNITED
ALASKA FISHERMEN AND CANNERY WORKERS UNION, LOCAL 24359,
AFL and FOOD, TOBACCO, AGRICULTURAL AND ALLIED WORKERS
UNION OF AMERICA, CIO, AND LOCAL 269, ETA-CIO, PARTIES TO THE
CONTRACT
Case No. 19-CA 132.Decided August 30, 1949
DECISION
AND
ORDER
On May 9, 1949, Trial Examiner Martin S. Bennett issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondent had engaged in and was engaging in certain unfair
labor practices violative of Section 8 (a) (1) and recommending that
it cease and desist therefrom and take certain affirmative action, as
set forth in the copy of the Intermediate Report attached hereto.
The Trial Examiner also found that the Respondent had not engaged
in certain other alleged unfair labor practices within the meaning of
Section 8 (a) (2) and (5) of the Act. Thereafter the CIO filed
exceptions only with respect to the remedy. Neither the General
Counsel nor the Respondent filed exceptions to any portion of the
report.
Pursuant to the provisions of Section 3 (b) of the Act, as amended,
the Board has delegated its power in connection with this case to
a three-member panel [Members Reynolds, Murdock, and Gray].
The Board has reviewed the Trial Examiner's rulings made 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 exception and brief, and the entire record in
this case, and hereby adopts the findings,' conclusions, and recom-
mendations of the Trial Examiner with the additions noted herein.
The CIO has excepted to that portion of the Trial Examiner's rec-
ommended order which prohibited the Respondent from recognizing
1 In the absence of any exceptions to the Trial Examiner ' s finding that the Respondent's
conduct did not violate Section 8 (a) (2) of the Act, we adopt his finding without passing
on its merits.
85 N. L. R. B., No. 176.
1004
DOUGLAS CANNING COMPANY, INC. 1005
the CIO or Local 269 thereof, as the exclusive bargaining agent "unless
and until the parties to the contract, or either of them, shall have been
-certified by the National Labor Relations Board as the exclusive rep-
resentative of such employees." It contends that the order should
"be confined to preventing the Employer from recognizing the parties
to the contract or any other union, as long as there is an unresolved
claim of right of representation by another union."
We find no merit in this exception. In cases where, as here, an
'employer has unlawfully assisted a union by recognizing and contract-
ing with it in the face of a rival claim, it has been our established
practice to prohibit recognition of the assisted union until it estab-
lishes its majority adherence in a Board election.2 We are entirely
satisfied, in the light of our experience, that the policies of the Act
can best be effectuated by adhering to that practice in the.present case,
as recommended by the Trial Examiner.
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 Respondent, Douglas Canning
Company, Inc., Douglas, Alaska, its officers, agents, successors, and
assigns, shall :
1. Cease and desist from :
(a) Recognizing Food, Tobacco, Agricultural and Allied Workers
Union of America, CIO, or Local 269 thereof as the exclusive repre-
sentative of any of its employees at its Douglas, Alaska, cannery for
the purposes of collective bargaining, unless and until said organiza-
tions or either of them shall have been -certified by the National Labor
Relations Board as the exclusive representative of such employees;
(b) Giving effect to its contract dated August 3, 1948, with Food,
Tobacco, Agricultural and Allied Workers of America, CIO, and
Local 269 thereof, or any extension, renewal, modification, or supple-
ment thereof, or to any superseding contract with said organizations
which may now be in force;
(c) In any like or related manner interfering with, restraining, or
coercing its employees in the exercise of the right of self-organization,
to form labor organizations, to join or assist United Alaska Fishermen
and Cannery Workers Union, Local 24359, AFL, or any other labor
organization, to bargain collectively through representatives of their
2 Matter of Ward Baking Co., 8 N. L. R. B. 558, 570 ; Matter of Heather Handkerchief
Works, Inc., 47 N. L. R. B. 800, 813; Matter of Flotill Products, Inc., 70 N. L. R. B. 119,
122; Matter of The Fairfield Engineering Company, 74 N. L. R. B . 827, 831; Matter of
A merican Patrol Service, 75 N. L . R. B. 662.
1006 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
own choosing, and to engage in concerted activities for the purposes
of collective bargaining or other mutual aid or protection as guar-
anteed in Section 7 of the Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Withdraw and withhold all recognition from Food, Tobacco,
Agricultural and Allied Workers of America, CIO, and Local 269
thereof, as the exclusive representative of all its employees at its
cannery in Douglas, Alaska, for the purposes of collective bargain-
ing with respect to rates of pay, wages, hours of employment, or any
other conditions of employment unless or until said organizations, or
either of them, shall have been certified by the National Labor Rela-
tions Board as such representative;
(b) Post at its cannery at Douglas, Alaska, copies of the notice
attached to the Intermediate Report and marked "Appendix A." 3
Copies of said notice, to be furnished by the Regional Director for
the Nineteenth Region, shall, after being duly signed by Respondent's
representative, be posted' by Respondent immediately upon receipt
thereof and maintained by it for a period of sixty ( 60) consecutive
days thereafter, in conspicuous places, including all places where
notices to employees are customarily posted. Reasonable steps shall
be taken by Respondent to insure that said notices are not altered, de-
faced, or covered by any other material ;
(c) Notify the Regional Director for the Nineteenth Region in
writing, within ten (10) days from the date of this Decision and
Order, what steps Respondent has taken to comply therewith.
IT IS FURTHER ORDERED that the complaint be, and it hereby is, dis-
missed insofar as it alleges that Respondent has engaged in unfair
labor practices within the meaning of Section 8 (a) (2) and (5) of the
Act.
INTERMEDIATE REPORT
Mr. Hubert J. Merrick, for the General Counsel.
Mr. Kenneth R. Bowman, of Juneau, Alaska, for the AFL.
Mr. Joseph A. McLean, of Juneau, Alaska, for Respondent.
Mr. Robert H. Kinney, of Seattle Wash., for the CIO.
STATEMENT OF THE CASE
1
Upon a charge filed on August 25, 1948, and an amended charge filed on De-
cember 27, 1948, by United Alaska Fishermen and Cannery Workers Union,
This notice, however, shall be and hereby is amended by striking from the first para-
graph thereof the words , The Recommendations of a Trial Examiner ," and substituting in
lieu thereof the words , "A DECISION AND ORDER." 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."
DOUGLAS CANNING COMPANY, INC. 1007
Local 24359, AFL, herein called the AFL, the General Counsel of the National
Labor Relations Board, herein called the General Counsel and the Board re-
spectively, by the Regional Director for the Nineteenth Region (Seattle, Wash-
ington) issued a complaint dated December 28, 1948, against Douglas Canning
Company, Inc., herein called Respondent, alleging that Respondent had engaged
and was engaging in unfair labor practices affecting commerce within the mean-
ing of Section 8 (a) (1), (2), and (5) and Section 2 (6) and (7) of the National
Labor Relations Act, as amended, 61 Stat. 136, herein called the Act. Copies
of the complaint, the charges and notice of hearing thereon were duly served
upon Respondent, the AFL, and also upon Food, Tobacco, Agricultural and
Allied Workers Union of America, CIO, and Local 269 thereof, parties to a con-
tract attacked by the complaint, both herein called the CIO.
With respect to the unfair labor practices, the complaint alleged, in substance,
that Respondent (1) on and after July 30, 1948, refused on demand to bargain
with the AFL although it represented a majority of the employees of Respondent
in an appropriate unit, (2) on or about July 30, 1948, entered into negotiations
with the CIO and on or about August 3, 1948, executed a contract with the CIO
recognizing it as the bargaining representative of its employees although the CIO
did not represent a majority of Respondent's employees in an appropriate unit,
and (3) by such conduct Respondent has engaged in unfair labor practices within
the meaning of Section 8 (a) (1),'(2), and (5) of the Act.
Respondent in its answer admitted that the AFL requested recognition as
collective bargaining representative but denied that it had been selected by a
"validly elected" majority of Respondent's employees. The CIO also filed an
answer in which it admitted that it had entered into a contract with the Re-
spondent on August 3, 1948, as bargaining representative of its employees. Both
answers denied the commission of any unfair labor practices.
Pursuant to notice, a hearing was held at Juneau, Alaska, on February 7
and 8, 1949, before the undersigned Trial Examiner, Martin S. Bennett, duly
designated by the Chief Trial Examiner. The General Counsel and Respondent
were represented by counsel and the CIO and the AFL by their representatives.
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 con-
clusion of the testimony, the undersigned granted a motion by the General
Counsel to conform the pleadings to the proof with respect to purely formal
matters . All parties participated in oral argument before the undersigned at
the close of the hearing at which time they were also afforded an opportunity to
file briefs and proposed findings and conclusions. A brief has been received from
the CIO.
Upon the entire record in the case and from his observation of the witnesses,
the undersigned makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
Respondent, a corporation duly organized in 1946 under the laws of the Terri-
tory of Alaska, operates a fish cannery at Douglas, Alaska. During the year
1948, Respondent purchased fish and materials for use in its canning operations
valued at approximately $200,000, of which 12.5 percent was shipped to Re-
spondent's plant from points outside the Territory of Alaska. During the
same period, Respondent sold canned salmon valued in excess of $250,000, of
which 98 percent was shipped to points outside the Territory of Alaska.
1008 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The undersigned finds that Respondent is engaged in commerce within the
meaning of the Act.
II. THE ORGANIZATIONS INVOLVED
United Alaska Fishermen and Cannery Workers Union, Local 24359, AFL;.
Food, Tobacco, Agricultural and Allied Workers Union of America, CIO ; and
Local 269 of Food, Tobacco, Agricultural and Allied Workers Union of America,
CIO, are labor organizations admitting to membership employees of Respondent.
III. THE UNFAIR LABOR PRACTICES
A. Interference, restraint, and coercion; alleged illegal support
1. The issues
On or about July 30, 1948, Respondent entered into negotiations with the CIO
and on August 3, 1948, Respondent and the CIO signed a contract which recog-
nized the latter as the collective bargaining representative of the employees of
Respondent. The complaint herein alleges that this recognition of and con-
tract with the CIO constitutes (1) interference, restraint, and coercion, (2)
illegal support of the CIO, and (3) a refusal to bargain with the AFL which
allegedly represented a majority of employees in an appropriate unit and had
previously requested recognition of Respondent.
2. Sequence of events
Respondent's cannery is an independent cannery which is not connected with
Alaska Salmon Industry, an association of canneries in Alaska which custom-
arily negotiates contracts for its members with labor organizations. It oper-
ates only when the fish are running and the season usually begins in May or
June and last several months, customarily through September, at the expiration
of which the cannery is closed until the following season.
The 1947 season
The record is not entirely clear as to the exact situation with respect to col-
lective bargaining in Respondent's plant during the 1947 season. On the one
hand, Merlin M. Miller, who was superintendent and manager of the plant dur-
ing the 1947 and 1948 seasons,' gave conflicting testimony in his deposition con-
cerning the subject of union representation. Miller claimed that no contract was
signed in 1947 but that he had agreed orally with the CIO during the 1947 season
to operate under the contract then in existence between the CIO and Alaska
Salmon Industry. He testified elsewhere, however, that he was not certain
whether he had signed a contract in 1947, that he did not recall signing one, and
that he might have signed a stipulation with the CIO to accept the Alaska
Salmon Industry contract. His testimony, inconsistent as it is, in large meas-
ure is to the effect that no 1947 contract was signed.
The CIO, however, introduced in evidence a stipulation allegedly signed by
Miller and CIO representatives on August 23, 1947, agreeing to accept and abide
by a contract entered into on July 15, 1947, between the CIO and Alaska Salmon
Industry. Also received in evidence was the 1947 contract dated July 15, 1947,
between the CIO and Alaska Salmon Industry covering southeastern Alaska.
1 Miller is presently a resident of Seattle, Washington. By order of the Regional Director
for the Nineteenth Region , his deposition was taken in Seattle on January 27, 1948, prior
to the opening of the instant hearing. The deposition was received in evidence without
objection.
DOUGLAS CANNING COMPANY, INC. 1009
This contract provided for recognition of the CIO as sole bargaining agent for
the employees of the signers. The August 23 stipulation appears, on its face, to
be in order and authentic and no challenge was raised as to its authenticity.'
It thus appears, and the undersigned finds, that at least during the latter
part of the 1947 season Superintendent Miller did agree with the CIO to recog-
nize it as sole bargaining agent for the employees of Respondent and it is on
the agreement then signed, as appears below, that the CIO bottoms its argu-
ment that it was entitled to recognition as bargaining representative for these
employees during the 1948 season.
But it is clear that the 1947 contract was effectively terminated by the CIO.
The contract, which the August 23 stipulation incorporated by reference, pro-
vided in Section 32 thereof :
This Agreement shall be effective for the 1947 season. It is further agreed
that in the event either party should desire to modify, change, or terminate
such conditions or practices at the expiration of the 1947 season, written
notice must be given on or before December 31, 1947, and that if special
notice is not given within such time by either party, the same conditions and
practices shall be automatically considered as renewed for an additional
period of one year.
In accordance with the language of Section 32, International Representative
Kinney of the CIO wrote to Respondent on November 29, 1947, and stated that
"We hereby serve notice on you of our desire to terminate the existing agreement
and to conclude a new agreement for the 1918 operations ." (Emphasis sup-
plied.) Superintendent Miller, in his deposition, admitted that he had received
a letter of termination from the CIO and this is further indicative that there
had been in fact a 1947 contract. The notice of termination, quoted above, com-
plies with the requirements of Section 32 of the contract in that it was submitted
before December 31, 1947, and the undersigned accordingly finds that the con-
tract was thereby prevented from renewing itself for the following year as it
provided 8 In view of the above finding, it is further found that at the outset of
the 1948 canning season in May 1948, Respondent had no contractual ties with any
labor organization.
The 1948 season
The 1948 canning season opened on or about May 5. It appears that Respond-
ent, at the outset of the season, did not rehire the resident workers in Douglas
who had worked for it during the 1947 season . Instead it hired a group of
workers described by the witnesses herein as "Filipinos" who apparently were
available at the time due to the shut-down of a factory in Juneau which is
located adjacent to Douglas. The union affiliation, if any, of this latter group is
not disclosed by the record. According to Kenneth Bowman, the representa-
tive of the AFL, he requested Superintendent Miller during the month of May
to discharge this new group and replace them with the workers employed during
the 1947 season. The new group of workers was discharged forthwith and
residents of Douglas were hired.
I It must be recalled that the stipulation was introduced at the hearing before the under-
signed which took place after the date on which the deposition of Miller was taken.
' See Matter of Best Motor Lines, 80 N. L. R. B. 314; Matter of Fab-Weld Corporation,
74 N. L. R. B. 1364; Matter of Seacoast Telephone Company, 74 N. L . R. B. 60 ; and Matter
of Ohio Public Service Company , 71 N. L. R. B. 184.
'The findings herein are based upon testimony which is in substantial agreement except
where otherwise indicated.
1010 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
About June 23, Bowman and other representatives of the AFL contacted
Miller and sought to obtain recognition of the AFL. Bowman claimed that a
majority of the employees had designated the AFL as their bargaining repre-
sentative. This was not disputed by Miller who made no request that the AFL
prove its majority.
Other meetings were held and just before July 30 Miller and Bowman agreed
upon the terms of a contract. It was decided that the contract should be re-
typed and resubmitted to Miller who, after proofreading it, would sign it.
Bowman left town in the interim and the retyped contract was submitted to
Miller by Julia Stevens who was an AFL delegate in the cannery. This con-
tract, a copy of which was introduced in evidence, was apparently a members-
only contract which called for recognition of the AFL as bargaining agent of
all its members who were employees of the Company.
. This contract was never signed, however, because on or about July 30 Miller
was visited by International Representative Robert Kinney of the Food, Tobacco,
Agricultural and Allied Workers Union of America, CIO, and by International
Representative Verne Albright of the International Longshoremen's and Ware-
housemen's Union, CIO. They asked Miller if it was true that he contemplated
recognizing the AFL as representative of the employees of Respondent and
alleged that the CIO still had a contract in effect with Respondent. It was
their contention that according to industry custom a terminated contract car-
ried over until a new one was signed. An opinion was obtained from Respond-
ent's attorney, Howard Stabler, that the 1947 contract was still in existence
although, according to the testimony of Stabler, he was not aware of the letter
sent Respondent by the CIO on November 29, 1947, which terminated the 1947
contract. It also appears, according to the testimony of Miller, that Albright
represented to him that Respondent, if it signed with the AFL, "would not be
able to move" its salmon pack by ship, as it must. Although Albright denied
making such a threat, it is unnecessary to resolve the conflict, because whether
or not such pressure was brought to. bear the resolution of this issue would not
be affected thereby. The fact is that Respondent did on August 3, 1948, sign
a contract recognizing the CIO as the bargaining representative for all of
its employees.
The duration of the contract was for the 1948 season and until April 30, 1949,
and from year to year thereafter absent 60 days' notice prior to April 30, 1949.
As of February 8, the date of the close of the instant hearing, it appears that
no notice to terminate had been given, and there was no evidence of any intent
by either party to the contract to submit such a notice.
The record also indicates that the AFL filed a petition for investigation and
certification of representatives at Respondent's plant on August 23, 1948, in
Case No. 19-RC-183, but that it was withdrawn by the AFL which apparently
chose to prosecute the unfair labor practice charges. The petition was dis-
missed by the Regional Director on or about December 27, 1948.
3. Conclusions
The contention of the General Counsel that Respondent has violated Section
8 (a) (1) and (2) of the Act is based upon the Board's doctrine that an em-
ployer, when confronted with conflicting representation claims, may not arrogate
to itself the determination of the issue. It is apparently contended that Respond-
ent, although it could have resolved the question of representation created by
DOUGLAS CANNING COMPANY, INC. 1011
these claims by invoking the processes of the Board, has improperly arrogated
to itself such determination.'
The CIO claims, however, that there was a 1947 contract in existence between
Respondent and the CIO and that this contract continued or remained in effect
until a new contract was signed for the 1943 season. It has previously been
found that the CIO gave timely notice to Respondent in November 1947 to ter-
minate the 1947 contract and the undersigned sees no merit to the contention
that the terminated 1947 contract placed the CIO in a preferential position for
recognition in 1948. Although the record discloses that during the 1948 season
Respondent and the CIO met and disposed of at least one grievance remaining
from the 1947 season, such bargaining on their part can in no way be of any
assistance to the CIO in its contention herein in view of the unqualified contract
termination. It is accordingly found that when the 1948 negotiations took
place there was no 1947 contract in existence which because of its terms war-
ranted continued recognition of the CIO by Respondent. Nor for that matter
did the C10 establish or offer to establish during the 1948 negotiations that it
represented a majority of the employees of Respondent. It bottomed its claim
solely upon the 1947 contract.
The facts are simple. At a time when Respondent was not under contractual
relationship with the CIO, when the AFL had requested recognition and had ar-
rived at an agreement with Respondent on the terms of the contract, and when
Respondent was about to sign said contract, Respondent yielded to a new request
or pressure from the CIO and recognized the latter as bargaining representative
of its employees although the CIO at no time demonstrated that it was entitled
to such recognition' By recognizing one of two contestants for recognition,
namely, the CIO, in the face of the known and substantial claim of the other, the
AFL, although such recognition may have been brought about by the pressure of
the CIO, Respondent has not only indicated his approval of the first labor organi-
zation but has accorded it unwarranted prestige, encouraged membership therein
and discouraged membership in the AFL, and has thereby rendered unlawful
assistance to the organization with which it entered into a contract. By such
action, Respondent has interfered with, restrained, and coerced its employees
in the exercise of the rights guaranteed in Section 7 of the Act, thereby violating
Section 8 (a) (1) thereof.'
The remaining question herein is whether or not Respondent has violated Sec-
tion 8 (a) (2) of the Act by the foregoing conduct. The undersigned is not
unmindful of the policy enunciated by the Board in the Carpenter Steel and
5 See, e. g., Matter of S. M. Camp and Co., 52 N. L. R. B. 1078, enf'd 160 F. 2d 519 (C. A. 6) ;
Matter of Elastic Stop Nut Corporation, 51 N. L. R. B. 694, enf'd 142 F. 2d 371 (C. A. 8) ;
Matter of Bluefield Garment Manufacturers, 75 N. L. R. B. 447; and Matter of I. Spiewak
and Sons, 71 N. L. R. B. 770.
9 That the contract was entered into as the result of improper pressure by the contracting
labor organization is not a defense to Respondent . See, e . g., Matter of Graham Ship
Repair Company, 63 N. L. R. B. 842, enf'd 149 F. 2d 787 (C. A. 9) ; Matter of G. W. Hume
Co.; 71 N. L. R. B. 533; Matter of Pioneer Electric Co., 70 N. L. R. B. 771 ; and Matter of
Foote and Davies Co., 66 N. L. R. B. 416.
' Although the CIO claims that it is the AFL which has violated the Act in that it
admittedly , at the outset of the season , procured the discharge of the crew originally hired
by Respondent ,- and the record reveals that shortly after the AFL representative requested
the discharge of this crew , Superintendent Miller did discharge them , there are no allega-
tions with respect thereto in the complaint . Consequently , the undersigned does not pass
upon that question.
557829-50-vol. 85-65
1012DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Hershey Metal Products cases 8 to the effect that, i'ater atia , in all cases where
an employer has interfered in the administration of or has contributed financial
or other support to a labor organization such conduct would be found to be a
violation of Section 8 (a) (2) of the Act, regardless of whether the labor organi-
zation involved was affiliated.
The undersigned fully recognizes this to be Board policy but further believes
that in the instant case where the only illegal conduct was that of assistance
in the form of recognition of one labor organization at a time when it was con-
fronted with the known and substantial claim of another labor organization, the
Board has traditionally not found a violation of Section 8 (a) (2) of the Act
but rather of Section 8 (a) (1). The undersigned believes that this latter
Board policy although preceding in point of time the rationale set forth in
the Carpenter Steel and Hershey Metal Products cases, supra , is not in conflict
with that doctrine because it is apparent that an 8 (a) (1) or 8 (1 ) finding
would have been and has been uniformly applied by the Board irrespective of
whether the labor organization was affiliated . For example , in Matter of Na-
tional Silver Co ., 50 N. L . R. B. 570, the complaint alleged a violation of both
Section 8 (1) and ( 2) of the original Act and the Trial Examiner found that
the evidence sustained the allegations of the complaint . The Board there agreed
with the Trial Examiner that the respondent therein had violated Section 8 (1)
by rendering improper assistance to an independent union in that during the
height of an organizational campaign by one labor organization , the respondent
expressed its hostility thereto, isolated one of its most active members, accepted
the claim of an independent labor organization to majority standing , and granted
recognition and a contract plus a wage increase to the latter . The Board
further found , however, that "We are not fully satisfied that the Respondent's
conduct . . . constituted domination or support within the meaning of Section
8 (2) of the Act" and set aside the Trial Examiner's finding to that effect. The
undersigned believes that the above -quoted rationale is apposite and is controlling
in the instant case and accordingly recommends that the allegation that Respond-
ent has violated Section 8 ( a) (2) of the Act be dismissed . See also Matter
of Elastic Stop Nut Corporation , supra.
B. The alleged refusal to bargain
1. The appropriate unit
The complaint alleges and the answer filed by the CIO admits that all produc-
tion and maintenance employees of Respondent's cannery at Douglas, Alaska,
excluding clerical workers, machinists, and professional employees, guards,
and supervisors as defined in the Act constitute a unit appropriate for the
purposes of collective bargaining. The answer of Respondent denied the appro-
priateness of the above-described unit, but Respondent adduced no evidence in
support of its position. The undersigned finds that the above-described unit
which is similar to that found appropriate in other cannery cases ' at all times
herein constituted and now constitutes a unit appropriate for the purposes of
collective bargaining within the meaning of Section 9 (b) of the Act.
8 Matter of Carpenter Steel Co., 76 N. L. R. B. 670; and Matter of Hershey Metal Products
Co., 76 N. L. R. B. 695.
9 See, e. g., Matter of Alaska Salmon Industry, Inc., 61 N. L. R. B. 1508.
DOUGLAS CANNING COMPANY, INC. 1013
2. Alleged representation by the AFL of a majority in the appropriate unit
In support of the allegation of the complaint that on or about July 20, 1948,
and at all times thereafter , the AFL represented a majority of the employees
in the appropriate unit, the General Counsel introduced two types of evidence.
Firstly, Julia Stevens, a delegate for the AFL in the cannery, testified that sev-
eral days after May 10 , 1948, she obtained the. signatures of a majority of the
employees in the plant to a petition designating the AFL as their bargaining
representative. This petition, according to Stevens, was signed by them while
the Douglas workers who had assembled at the plant warehouse were waiting
to report for work and while Respondent at the request of AFL Representative
Bowman, as set forth above, discharged the original crew it had employed at
the plant at the start of the 1948 season. The petition which bears the signa-
ture of 41 individuals reads as follows:
WE, THE UNDERSIGNED, APPLY FOR MEMBERSHIP IN UNITED
ALASKA FISHERMEN AND CANNERY WORKERS' UNION, LOCAL
24359, AND WISH LOCAL 24359 TO BE OUR BARGAINING AGENCY.
The record indicates, however, that on July 30, 1948, when Respondent com-
menced negotiations with CIO and when it is alleged that Respondent refused to
bargain with the AFL there were 32 employees on Respondent's pay roll. Of
the 32 then on the pay roll, the names of 24 appear on the petition purportedly
designating the AFL as bargaining representative.
According to Stevens , all of the names appearing on the petition were placed
thereon by the respective signers with the exception of six whom she named. She
further claimed that these six could not write their names and at their request
she affixed their names to the petition. Stevens further testified that in the
case of these six, as in the case of those who personally affixed their names, she
explained to each individual that she, Stevens, was the AFL delegate and that the
list was for the purpose of designating the AFL as bargaining representative.
There are, however, several considerations which cast doubt upon the reliability
of this list as substantial evidence of an AFL majority . Firstly, as Stevens
testified , a great many of the employees are Alaskan natives who neither read
nor write English and speak a dialect known as "Thlingit." 10 Secondly, Stevens
admitted that it was customary for the natives to come to her to sign up for
work at the beginning of the season and the record further indicates that Super-
intendent Miller had , on various occasions , instructed Stevens to procure help
for the plant. Stevens claimed that it was on one of these occasions in May
1948 when the women reported to her to indicate their desire to work during the
1948 season that she proceeded to explain the language at the head of the petition
quoted above , as a result of 'which various individuals signed the petition
purportedly designating the AFL as their bargaining representative.
On the other hand, other testimony in the record cast considerable doubt upon
this explanation by Stevens . Three of the six individuals Stevens claimed were
unable to write their names were called as witnesses by the CIO , namely , Mabel
Parris, Elizabeth Edwards, and Emma Weaver. Each, a native, understood little
or no English and it was necessary to question them through an interpreter.
Each, however , demonstrated her ability to write her name and their testimony
was also at variance with that submitted by Stevens . Thus, Panis testified that
10 Stevens , herself a native, is proficient in both English and the native dialect.
1014 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
she understood Stevens was soliciting workers and reported to Stevens' home
in order to obtain work for herself and her daughter; that she did not know
Stevens was a delegate for the AFL; that she instructed Stevens to put down her
name and that of her daughter ; that she never saw the petition; and that she was
called in to work at the cannery by Stevens.
Edwards testified that she never saw the petition ; that she had never author-
ized Stevens to place her name upon it ; and that she was a CIO supporter. She
further testified that her membership in the AFL had been solicited by Stevens'
mother, Bessie Jimmie, but that she had refused to sign because she favored the
CIO. Weaver testified that she went to Stevens' home and instructed Stevens to
place her name on the petition, and that she understood the "paper" to be one
indicating the desire of the signer to obtain work with Respondent.
The undersigned is of the belief that the testimony of these three witnesses
casts considerable doubt upon the reliability of the petition as evidence of an AFL
majority on or about July 30, 19'48, the time of the alleged refusal to bargain.
Conceivably, had the individual signers of the petition affirmed their signatures
thereto for the purpose indicated thereon, the presumption of the validity and
authenticity of the document raised by the testimony of Stevens would be
supported. However, absent such affirmation, the testimony of Panis, Weaver,
and Edwards, against the background of the large number of native workers
who were unable to write or speak English, more than overcomes any presumption
of authenticity or weight that might be attached to the document as a result of
the testimony of Stevens. Finally, an inspection of the signatures on the petition
reveals the existence of a striking similarity with respect to a substantial number
of them. Although the undersigned is not a handwriting expert, he is of the
belief, as the CIO contended in its argument, that a substantial number if not a
majority of the signatures on the petition are in the handwriting of one or two
individuals. In view of the above findings, the undersigned concludes that the
petition can not be relied upon as evidence of representation by the AFL of a
majority of the employees of Respondent on July 30, 1948"
As further evidence of an AFL majority, the General Counsel relies upon 23
individually signed slips authorizing a check-off of dues for the AFL. These
were purportedly signed by employees and turned over to Superintendent Miller
after Respondent had entered into the contract with the CIO on or about August
3, 1948. It is urged that these authorized deductions are indicative of the intent
of the employees to be represented by the AFL rather than the CIO. The record
indicates, however, that Respondent's pay roll fluctuated in number of personnel
during the season and according to the deposition of Superintendent Miller there
were usually 50 to 55 in Respondent's employ. It was further stipulated at the
hearing that the number of employees varied and, ranged as high as 55. Assum-
ing, therefore, that these check-off slips may be considered as valid designations
of the AFL for the purpose of collective bargaining, the record does not indicate
the number of employees on the pay roll at the time they were submitted to
Respondent, and, consequently, it does not permit a finding that these signatures
constituted a majority of those in the appropriate unit at the time they were
submitted to Respondent.
Although it is true.that there is no evidence of any substantial support of the
,CIO by the employees of Respondent, in view of the foregoing the undersigned
finds and concludes that the General Counsel has not sustained the burden of
11 Cf. Matter of Brenner Tanning Co., 50 N. L. R. B. 894.
DOUGLAS CANNING COMPANY, INC. 1015
establishing by a preponderance of the evidence that the AFL represented a
majority of the employees at the time of the alleged refusal to bargain.
3. The alleged refusal to bargain
Since it has been found that the AFL has failed to establish substantial proof
of the requirement that it represent a majority of the employees of Respondent
within the unit found appropriate, consideration by the undersigned of Respond-
ent's alleged refusal to bargain is rendered unnecessary, and he will recommend
that the complaint be dismissed insofar as it alleges that Respondent has engaged
in unfair labor practices within the meaning of Section 8 (a) (5) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondent, set forth in Section III, above, occurring in
connection with the operations of Respondent described in Section I, above, have
a close, intimate, and substantial relation to trade,- traffic, and commerce moving
in and out of the Territory of Alaska, and tend to lead to labor disputes burdening
and obstructing commerce and the free flow of commerce.
V. THE REMEDY
Having found that Respondent has violated Section 8 (a) (1) of the Act, the
undersigned will recommend that it cease and desist therefrom, and take certain
affirmative action designed to effectuate the policies of the Act.
It has been found that Respondent has unlawfully assisted the CIO and
interfered with the AFL by recognizing and entering into a. contract with the
CIO as the exclusive representative of the employees in Respondent's cannery.
The effect and consequence of Respondent's assistance to the CIO constitutes a
continuing obstacle to the free exercise by the employees of their right to self-
organization and to bargain collectively through representatives of their own
choosing. Since the contract of August 3, 1948, perpetuates Respondent's unlaw-
ful assistance to the CIO, and in the event that the contract renewed itself on
April 30, 1949, as it provided, or that since the date of the hearing, Respondent
may have entered into another contract with the CIO, it will be further recom-
mended that Respondent cease giving effect to any new contract with the CIO,
as well as to any extension, modification, renewal, or supplement to the 1948
contract, unless and until the CIO shall have been certified by the Board as
exclusive representative of the employees of Respondent.
Nothing herein, however, shall be construed as requiring Respondent to vary
any wage, hour, seniority, or other substantive feature of its relations with the
employees, if any, which Respondent has established in the performance of
this contract, as extended, renewed, modified, supplemented, or superseded.
On 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. United Alaska Fishermen and Cannery Workers Union, Local 24359, AFL;
Food, Tobacco, Agricultural and Allied Workers Union of America, CIO; and
Local 209 of Food, Tobacco, Agricultural and Allied Workers Union of America,
CIO, are labor organizations within the meaning of Section 2 (5) of the Act.
2. By interfering with, restraining, and coercing its employees in the exercise
of the rights guaranteed in Section 7 of the Act, Respondent has engaged in
1016 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and is engaging in unfair labor practices within the meaning of Section 8 (a)
(1) of the Act.
3. The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 (6) and (7) of the Act.
4. Respondent has not engaged in unfair labor practices within the meaning
of Section 8 (a) (2) and (5) of the Act.
RECOMMENDATIONS
Upon the basis of the foregoing findings of fact and conclusions of law, the
undersigned recommends that Respondent, Douglas Canning Company, Inc.,
Douglas, Alaska, its officers, agents, successors, and assigns, shall :
1. Cease and desist from :
(a) Recognizing Food, Tobacco, Agricultural and Allied Workers Union of
America, CIO, or Local 269 thereof as the exclusive representative of any of
its employees at its Douglas, Alaska, cannery for the purposes of collective
bargaining, unless and until said organizations or either of them shall have
been certified by the National Labor Relations Board as the exclusive representa-
tive of such employees ;
(b) Giving effect to its contract dated August 3, 1948, with Food, Tobacco,
Agricultural and Allied Workers of America, CIO, and Local 269 thereof, or
any extension, renewal, modification, or supplement thereof, or to any super-
seding contract with said organizations which may now be in force;
(c) In any like or related manner interfering with, restraining, or coercing
its employees in the exercise of the right of self-organization, to form labor
organizations, to join or assist United Alaska Fishermen and Cannery Workers
Union, Local 24359, AFL, or any other labor organization, to bargain collectively
through representatives of their own choosing, and to engage in concerted activi-
ties for the purposes 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) Withdraw and withhold all recognition from Food, Tobacco, Agricultural
and Allied Workers of America, CIO, and Local 269 thereof, as the exclusive
representative of all its employees at its cannery in Douglas, Alaska, for the
purposes of collective bargaining with respect to rates of pay, wages, hours of
employment, or any other conditions of employment unless or until said organiza-
tions, or either of them, shall have been certified by the National Labor Relations
Board as such representative;
(b) Post at its cannery at Douglas, Alaska, copies of the notice attached
hereto marked "Appendix A." Copies of said notice, to be furnished by the
Regional Director for the Nineteenth Region, shall, after being duly signed
by Respondent's representative, be posted by Respondent immediately upon
receipt thereof and maintained by it for a period of sixty (60) consecutive days
thereafter, in conspicuous places, including all places where notices to employees
are customarily posted. Reasonable steps shall be taken by Respondent to insure
that said notices are not altered, defaced, or covered by any other material;
(c) Notify the Regional Director for the Nineteenth Region in writing, within
twenty (20) days from the date of receipt of this Intermediate Report, what
steps Respondent has taken to comply therewith.
It is recommended that unless Respondent shall within twenty (20) days from
the receipt of this Intermediate Report, notify said Regional Director in writing
P
DOUGLAS CANNING COMPANY, INC. 1017
that it will comply with the foregoing recommendations, the National Labor
Relations Board issue an order requiring Respondent to take the aforesaid
action.
. It is, further recommended that the complaint be dismissed insofar as It al-
leges that Respondent has engaged in unfair labor practices within the meaning
of Section 8 (a) (2) and (5) of the Act.
. As provided in Section 203.46 of the Rules and Regulations of the National
Labor Relations Board, Series 5, as amended August 18, 1948, 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 (including 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 party 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 exceptions and/or briefs, the party filing
the same shall serve a copy thereof upon each of the other parties. Proof of
service on the other parties of all papers filed with the Board shall be promptly
made as required by Section 203.85. 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.
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 recom-
mended order herein contained shall, as provided in Section 203.48 of said Rules
and Regulations, be adopted by the Board and becomes its findings, conclusions,
and order, and all objections and exceptions thereto shall be deemed waived for
all purposes.
Dated at Washington, D. C., this 9th day of May 1949.
MARTIN S. BENNETT,
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 recognize FOOD, TOBACCO, AGRICULTURAL AND ALLIED WORKERS
UNION OF AMERICA, CIO, or LOCAL 269 thereof, as the exclusive representative
of our employees for the purposes of collective bargaining, unless and until
said organization shall have been certified by the National Labor Relations
Board as the exclusive representative of our employees.
WE WILL NOT give effect to our contract dated August 3, 1948, with
FOOD, TOBACCO, AGRICULTURAL AND ALLIED WORKERS UNION OF AMERICA, CIO,
or LOCAL 269 thereof, or to any extension, renewal, modification, or supple-
1018 DECISIONS OF NATION-AL LABOR RELATIONS BOARD
ment thereof, unless and until the said organization shall have been certified
by the Board as the representative of our employees.
WE WILL NOT in any like or related manner interfere with, restrain, or
coerce our employees in the exercise of the right to self-organization, to form
labor organizations, to join or assist UNITED ALASKA FISHERMEN AND CAN-
NERY WORKERS UNION, LOCAL 24359, AFL, or any other labor organization,
to bargain collectively through representatives of their own choosing, and
to engage in concerted activities for the purposes of collective bargaining, or
other mutual aid or protection, as guaranteed in Section 7 of the Act.
DOUGLAS CANNING COMPANY, INC.
Employer.
Dated-------------------- By------------------------------------
(Representative ) (Title)
This notice must remain posted for 60 days from the date hereof, and must not
be altered , defaced , or covered by any other material.