Libby, McNeill & Libby

National Labor Relations Board - Board Decisions

Oct 11, 1945

64 N.L.R.B. 30 (N.L.R.B. 1945)

In the Matter of LIBBY, MCNEILL & LIBBY and CANNERY AND FOOD
PROCESS WORKERS UNION, C. I. O.
Case No. 19-R-1597.-Decided October 11, 194,5
Messrs. Hugh L. Biggs and Kenneth C. Hardwicke, both of Port-
land, Oreg., for the Company.
Messrs. Harry George and Al Hartwng, both of Portland, Oreg., for
the CIO.
Messrs. Edwin D. Hicks and Al Verhaaf, both of Portland, Oreg.,
for the AFL.
Mr. Glenn L. Moller, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
Upon a petition duly filed by Cannery and Food Process Workers
Union, C. I. 0., herein called the CIO. alleging that a question affect-
ing commerce had arisen concerning the representation of employees
of Libby, McNeill and Libby, Portland, Oregon, herein called the Com-
pany, the National Labor Relations Board provided for an appro-
priate hearing upon due notice before John E. Hedrick, Trial Ex-
aminer. The hearing was held at Portland, Oregon, on July 25, 26,
30, and 31, and August 1 and 2, 1945. The Company, the CIO, and
Cannery Workers Union, Local 20707, AFL, herein called the AFL,
appeared and participated. All parties were afforded full opportunity
to be heard, to examine and cross-examine witnesses, and to introduce
evidence bearing on the issues. The Trial Examiner's rulings made
at the hearing are free from prejudicial error and are hereby affirmed.
The Trial Examiner referred to the Board ruling on a motion by coun-
sel for the AFL to strike certain testimony. The motion is hereby de-
nied. The AFL moved to dismiss the petition on the grounds that
there is in existence a collective bargaining contract constituting a
bar to this proceeding, and that there is a suit to construe this con-
tract pending before a State court, thus depriving this Board of juris-,
diction. The AFL also moved that this proceeding be held in abey-
ance pending disposition of proceeding before the State court. The
motions are denied. The contract is not a bar for the reasons herein-
after set forth. An action on a contract in a State court cannot affect
64 N. L. R. B, No. 7.
30
LIBBY, McNEILL & LIBBY 31
the duty of this Board to investigate and determine bargaining rep-
resentatives.) All parties were afforded an opportunity to file briefs
with the Board.
Upon the entire record in the case, the Board makes the follow-
ing :
FINDINGS OF FACT
1. THE BUSINESS OF ,THE COMPANY
Libby, McNeill & Libby is a Maine corporation with its principal
office and plant in Chicago, Illinois. The Company operates plants
in various States of the United States, including a food processing
and canning plant in Portland, Oregon. Only the Company's Port-
land plant is involved in this proceeding.
The Company annually uses raw materials valued in excess of
$1,000,000, of which approximately 40 percent is shipped to the Port-
land plant from points outside the State of Oregon. The Company
produces annually finished products valued in excess of $1,000,000,
of which approximately 90 percent is shipped from the Portland plant
to points outside the State of Oregon.
The Company admits that it is engaged in commerce within the
meaning'of the National Labor Relations Act.
II. TILE ORGANIZATIONS INVOLVED
Cannery and Food Process Workers Union, affiliated with the Con-
gress of Industrial Organizations is a labor, organization within the
meaning of the Act.
Cannery Workers Union, Local 20707, presently functioning under
the direction of an administrator appointed by the American Feder-
ation of Labor, is a labor organization within the meaning of the
Act. We do not pass upon the question whether the present Local
20707 is the same entity as Local 20707, affiliated with the American
Federation of Labor, the organizatioii which has represented the
Company's employees in the past.
III. THE QUESTION CONCERNING REPRESENTATION
a
In 1937 the' American Federation of Labor organized a federal
labor union, designating it as Cannery Workers Union, Local 20707.
Thereafter, a council of similar federal unions was organized in the
Oregon canning industry and Local 20707 became a member' of that
council. The Company entered into its first collective bargaining
agreement with Local•.20707 in 1937. and thereafter executed annual
contracts with that union. In 1943,` at the insistence of the local, the
Oregon State Cannery Council and the American Federation of Labor
1 Matter of Land O'Lakes Dairy Company,'48 N. L. R B. 1028, and cases cited in footnote
2 therein.
32 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
-were added as parties in the recognition clause of the new contract.
When a new contract was negotiated in 1944, the Council and the
American Federation of Labor were again named as parties to the
contract. Early iii 1945, however, after the requisite notice of desire
to reopen had been given by the local, the negotiating officers of the
local advised the Company that, in view of a possibility that the
local would change its affiliation, they wished to omit from the con-
tract any reference to the Oregon State Cannery Council or to the
American Federation of Labor. When the parties met,again to nego-
tiate, the local proposed a new recognition clause which was finally
agreed upon and incorporated into the contract, which was executed
by the Company on May 25, 1945, the local having executed it sev-
eral days before. This clause contains the following language:
This agreement, made and entered into between,
* the Company, and Cannery Workers Union, Local No.
20707, located at Portland, Oregon, or their successor which the
parties agree may be certified by the National Labor Relations
Board during the life of this contract,. hereinafter referred to
as the Union.
Both the language of the contract and other evidence 2 satisfy us
that the parties intended, when they negotiated the contract, that
Local 20707 was not to remain the bargaining agent if a new repre-
sentative was certified by the Board and we so find.3 Such a contract
is not a bar to a present determination of representatives.'
A statement of a Board agent, introduced into evidence at the hear-
ing, indicates that the CIO represents a substantial number of em-
ployees in the unit hereinafter found appropriate.,'
We find that a question affecting commerce has arisen concerning
the representation of employees-of the Company, within the meaning
of Section 9 (c) and Section :2 (6) and (7) of the Act.
2 Thus, on June 25, 1945, the Company wrote to the group which is now affiliated with
the CIO , that the Company had recognized Local 20707 "tor the life of the contract of until
a successor should be certified by the National Labor Relations Board we are recognizing
Local 20707 since we are without advice that ant successor union has been certified "
3 In view of oil constiuction of the contract , we find it unnecessary to decide whether,
as the CIO contends and the AFL denies, the CIO gnopp, iather than the group now acting
through an administrator under the name Local 20707 , is the sane as, or the legal successor
to, the labor organization winch negotiated the contract This would involve judgment as
to the effect of sundry events, including an order from the Ameiican Federation of Labor to
affiliate with the Teamsters Union and votes by the local to refuse to comply with this
order and to seek other affiliations '
4 Matter of Farr Alpaca Coin pane , Inc , 9 N L R B 1208 , Matter of The Steel Storage
File Company, 27 N L It B 210, Matter of.TPillils Os,eiland Motors , Inc, 35 N L R B
549
The Field Examiner a eported that the CIO submitted a certified list of designation cards
which bole 227 apparently genaune original signatures of persons listed on the Company's
par loll of June 21 , 1945. which contained the names of 301 employees in the appropriate
units
Local 20707 submitted evidence of a membership of 267 , of nluch 1 35 appeared on the
afoi esand pay roll The names of , 130 of the per sons listed on the pay roll and on the
records of Local 20707 also appeared on the CIO list
LIBBY , MCNEILL & LIBBY
IV. THEi APPROPRIATE UNIT
33
In substantial conformity with the stipulation of the parties, we
find that all employees of the Company at its Portland plant, ex-
eluding all clerical employees, the chief clerk, general superintendent,
general foreman, second general foreman, department foremen, head
forelaches, and all or any other supervisory employees with authority
to hire, promote, discharge, discipline, or otherwise effect changes in
the status of employees, or effectively recommend such action, con-
stitute a unit appropriate for the purposes of collective bargaining
within the meaning of Section 9 (b) of the Act.
V. THE DETERMINATION OF REPRESENTATIVES
We shall direct that the question concerning representation which
has arisen be resolved by an election by secret ballot among the em-
ployees in the appropriate unit who were employed during the pay-
roll period immediately preceding the date of the Direction of Election
herein, subject to the limitations and additions set forth in the
Direction.
DIRECTION OF ELECTION
By virtue of and pursuant to the power vested in the National Labor
Relations Board by Section 9 (c) of the National Labor Relations
Act, and pursuant to Article, III, Section 9, of National Labor Rela-
tions Board Rules and Regulations-Series 3, as amended, it is hereby
DIRECTED that, as part of the investigation to ascertain representa-
tives for the purposes of collective bargaining with Libby, McNeill &
Libby, Portland, Oregon, an election by secret ballot shall be con-
ducted as early as possible, but not later than thirty (30) clays from
the date of this Direction, 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, Sections 10 and 11, of said Rules and Regulations, among the
employees `in the unit found appropriate in Section IV, above, who
were employed during the pay-roll period immediately preceding the
date of this Direction, including employees who did not work during
said pay-roll period because they were ill or on vacation or temporarily
laid off, and including employees in the-armed forces of the United
States who present themselves in person at the polls, but excluding
those employees who have since quit or been discharged for cause and
who have not been rehired or reinstated prior to the date of the elec-
tion, to determine whether they desire to be represented by Cannery
and Food Process Workers Union, C. I. 0., or by Cannery Workers
Union, Local 20707, AFL, for the purposes of collective bargaining.
or by neither.
6704 i 7-46-vol 64-4