Normal Packing Co.

National Labor Relations Board - Board Decisions

Feb 19, 1948

76 N.L.R.B. 254 (N.L.R.B. 1948)

In the Matter of NORCAL PACKING COMPANY , EMPLOYER and THE
AMALGAMATED MEAT CUTTERS AND BUTCHER WORKMEN OF NORTH
AMERICA, LOCAL No. 445, AFL, PETITIONER
In the Matter of NEW ENGLAND FISH Co., EMPLOYER and THE AMAL-
GAMATED MEAT CUTTERS AND BUTCHER WORKMEN OF NORTII AMERICA,
LOCAL No. 445, AFL, PETITIONER
In the Matter of THEO. WEISSICU FISH Co., INC., EMPLOYER and Tl-IE
AMALGAMATED MEAT CUTTERS AND BUTCHER WORKMEN OF NORTH
AMERICA, LOCAL No. 445, AFL,' PETITIONER
Cases Nos. 0O-R-2021, 20-R-2224, and 20-R-2225, respectively.-De-
cided February 19, 1948
Mr. S. J. Sturiale, of Fields Landing, Calif., for Norcal.
Mr. Andrew Smith, Jr., of Eureka, Calif., for New England.
Mr. Theo. Weissich, of Eureka. Calif., for Weissich.
Messrs. Harold V. Pavey and Albin J. Gruhn, both of Eureka, Calif.,
for the Petitioner.
Gladstein, Andersen, Resner and Sawyer, by Mr. Norman Leonard,
of San Francisco, Calif., for the Intervenor.
DECISION
AND
DIRECTION OF ELECTIONS
Upon separate petitions duly filed, a consolidated hearing in this
case was held at Eureka, California, on August 15, 1947, before Robert
E. Tillman, hearing officer. The hearing officer's rulings made at the
hearing are free from prejudicial error and are hereby affirmed.2
Upon the entire record of the case, the National Labor Relations
Board makes the following :
1 The names of the parties appear as amended at the hearing The companies are heiein-
after collectively referred to as the Employers
2 Subsequent to the hearing in this case, the Board was apprised of the fact that New
England had completely closed out its operations in Eureka, California. Thereafter, on
December 22, 1947. the Petitioner filed with the Board a Motion to Sever and Withdraw
Petition in Case No 20-R-2224, involving New England The motion is hereby granted.
76 N. L. R. B., No. 39.
254
NORCAL PACKING COMPANY
FINDINGS OF FACT
I. THE BUSINESS OF THE EMPLOYERS
255
Norcal Packing Company, herein called Norcal, is a partnership
operating a plant at Fields Landing, California, where it is engaged in
processing and distributing seafood products. During the year 1946,
it purchased $211,839.06 worth of seafood, all obtained from the waters,
of the Pacific Ocean. During the same period, it sold $344,914.56.
worth of seafood products, of which approximately 4 percent was
shipped to points outside the State of California.
The Theo. Weissich Fish Co., Inc., herein called Weissich, is a
California corporation engaged in processing and distributing seafood
products at Eureka, California. During the 6-month period ending
April 30. 1947, it purchased 1,017,271 pounds of fish, all obtained from
the waters of the Pacific Ocean. During the same period, it sold
254,318 pounds of seafood products, of which approximately 10 per-
cent was shipped to points outside the State of California.
The Employers admit, and we find, that they are engaged in coln-
merce within the meaning of the National Labor Relations Act, as
amended.
II. THE ORGANIZATIONS INVOLVED
The Petitioner is a labor organization affiliated with the American
Federation of Labor, claiming to represent employees of the Employer.
International Fishermen & Allied Workers of America, Local 38,
herein called the Intervenor, is a labor organization affiliated with the
Congress of Industrial Organizations, claiming to represent employees
of the Employer.3
III. THE QUESTIONS CONCERNING REPRESENTATION
On April 1, 1946, the Employers herein were parties to a 1-year
automatically renewable master contract entered into between the
Intervenor and the Northern California Fisheries Association, herein
called the Association.' On April 4, 1947, the Petitioner wrote to
'Having permitted intervention by this labor organization on the basis of a sufficient
showing of interest, we have allowed such intervention foi all purposes and have given
full consideration to the Intervenor's contentions with respect to all issues in this proceed-
ing, notwithstanding the fact that it is not in compliance with Section 9 (f), (g), and (h)
of the Act, as amended See footnote 17, however, as to whether the Intervenor is entitled
to a place on the ballot in view of such noncompliance.
4 The Association was formed -March 8, 1946, by a group of Northern California seafood
processing concerns for the purpose, inter aha, "to conduct collective b.ircaiwnc nego-
tiations with labor unions on behalf of its members " The record discloses a practice on
the part of the Association of negotiating with the Intervenor on behalf of its member'.
notif}ing its members by telephone of the substance of a contemplated master contract
256 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
each of the Employers requesting recognition as the "sole collective
bargaining agent" of a specified unit of their respective employees.,,
The Employers replied, refusing to recognize the Petitioner until
proof of majority representation had been made." On April 11, 1947,
the Petitioner filed with the Board the petitions herein. On June 16,
1947, the Association and the Intervenor entered into a new master
contract to run for 1 year; the Employers were parties to this
agreement.
The Intervenor contends that no questions concerning representation
were raised by virtue of the Petitioner's letters of April 4, 1947, to
the Employers, inasmuch as these letters contain no claim of majority
representation and do not constitute a demand on their face. The
contention clearly has no merit. Even if the Petitioner's letters of
April 4 were considered insufficient in themselves to constitute a valid
representation claim,' as alleged, there is evidence of the telephone
conversations, prior to the mailing of the April 4 letters, between the
Petitioner and the respective Employers herein apprising the latter
of the Petitioner's majority claim. In any case, the filing of these
petitions was enough in itself to place the Employers on notice of the
Petitioner's claim."
Whether or not any of the parties took proper action to forestall
the automatic renewal of the 1946 contract, an entirely new agreement
was executed on June 16, 1947, which would supersede the preexisting
contract, if any, and render such a contract inoperative as a bar. The
petitions having been filed prior to the execution of the June 16, 1947,
contract, it is clear that the latter contract , as well as the 1946 contract,
constitutes no bar.9
Accordingly, we find that questions affecting commerce exist con-
cerning the representation of employees of the Employers, within
the meaning of Section 9 (c) (1) and Section 2 (6) and (7) of the Act.
and receiving oral approval of the contract and authority to sign for the particular
member. Insofar as the record shows, the names of the particular employers covered are
not indicated in these contracts.
5 There is evidence that the Petitioner orally advised each of the Employers of its
representation claim in telephone conversations prior to the mailing of these letters.
6 The Employers advised the Petitioner in their separate replies that they would be
agreeable to any form of legal process selected by the Petitioner In establishing proof
of majority . At the hearing the Intervenor moved to dismiss the petitions on the ground
that the Petitioner failed to produce the proof of majority requested by the Employers
and that, therefore , no questions concerning representation exist. The motion is obviously
groundless , since the Petitioner is presently before the Board seeking to prove its majority,
and it is hereby denied.
7 But cf. Matter of Bauer-Schweitzer Hop d Malt Co., 72 N. L. R. B . 1223, 1227.
8 Matter of Rockford Drop Forge Company, 73 N. L. It. B 26, 28.
1 Matter of Atlas Felt Products Company , 68 N. L . It. B. 1, 3.
NORCAL PACKING COMPANY
IV. THE APPROPRIATE UNITS
257
The Petitioner seeks separate employer units of all plant and dock
workers, excluding office and clerical employees and supervisors io
The Intervenor contends that a multiple-employer unit is appropriate;
the Employers take neutral positions.
The Employers' operations of preparing and shipping fresh sea-
food, as distinguished from canning, are substantially the same. Their
supply is dependent entirely upon the catch brought in by fishing
boats from time to time 11 Although their operations continue
throughout the year, business fluctuates with the arrival of these
boats, which is relatively more frequent in the summer months when
fishing conditions are better. Upon the arrival of a fresh supply
of fish, effort is made by each plant to process this seafood as quickly
as possible. Inasmuch as the various plants in the area (seven plants
in and around Humboldt Bay, California) generally receive their
fish supply at different times, a considerable amount of employee
interchange takes place between most of these plants.12
Weissich had been in continuous operation since 1933 except for
about 1 year in 1941; it was incorporated in 1946. Theodore Weissich
testified that "a number of years ago," he had a contract with the
Petitioner and with the AFL teamsters which "flitter [ed] out for
some reason or other." On May 25, 1945, the Board conducted sep-
arate consent elections among the employees of the seven employers
then operating fish plants in the Humboldt Bay area, in which the
Petitioner and the Intervenor' were contending parties. The Inter-
venor won the election at Weissich and entered into a contract covering
that plant. As shown above, Weissich continued this contractual
relation with the Intervenor through the Association after the forma-
tion of the latter in March 1946.
Norcal commenced operations in July 1945. Following a card
check-off conducted by an independent agency in September 1945,
to which the Petitioner was not a party, the Intervenor was designated
as the majority representative of Norcal's employees. Norcal there-
upon entered into a contract with the Intervenor. As shown above,
it continued its relations with the Intervenor through the Associa-
tion in 1946 and 1947.
10 Both labor organizations herein stipulated as to the composition of the unit.
11 These boats are operated by independent fishermen who are represented by the Inter-
venor in the master contracts mentioned above.
L The record shows that during the period from January to July 1947, 120 different
persons were employed for varying lengths of time by weissich, and 112 by Norval During
this period, 26 of these persons appeared on the employment lists of both Employers. At
the time of the hearing, weissich was employing about 50 persons regularly and Norval
about 8 persons.
258 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The record shows that there are approximately 50 members in the
Association, including 7 having plants in the Humboldt Bay area.
Weissich is located in Eureka, while Norcal has its plant in Fields
Landing, 6 miles from Eureka on Humboldt Bay. There are 2 Asso-
ciation members 13 not involved in this proceeding operating plants
in that area who are not covered by the agreements between the
Association and the Intervenor; these 2 plants have been represented
by the Petitioner since the latter won these elections conducted by
the Board in 1945.
The foregoing indicates that since April 1946 the Employers have
been represented by the Association, together with other employers
in the same industry. However, prior to the inception of the Asso-
ciation, collective bargaining had been conducted on a single-employer
basis ; the consent elections in 1945 had been conducted by the Board
among the individual employers in the Humboldt Bay area and the
successful unions were designated to represent separate employer units.
Thus, it appears that bargaining by the Association for the Employers
prior to the filing of the petitions in this case had been in effect for a
relatively brief period, i. e., about 1 year, as opposed to the earlier
individual bargaining of the Employers. Such a brief bargaining
history not predicated upon a Board unit finding, as we have previ-
ously held, does not preclude the determination of different appropri-
ate bargaining units 14 Moreover, the fact that the Employers in this
case have taken a neutral position with respect to the scope of the
appropriate unit indicates, in our opinion, that they are not unwilling
to pursue an independent course in bargaining from that of the Asso-
ciation.15 Under all the circumstances, we conclude that separate
bargaining units of the employees of the Employers herein are
appropriate.
We find that all plant and dock workers employed by Weissich
in its operations at Eureka, California, excluding office and clerical
employees and supervisors, constitute a unit appropriate for the pur-
poses of collective bargaining within the meaning of Section 9 (b) 'of
the Act.
We find that all plant and dock workers employed by Norcal at its
Fields Landing, California, plant, excluding office and clerical em-
ployees and supervisors, constitute a unit appropriate for the purposes
of collective bargaining within the meaning of Section 9 (b) of the
Act.
la Hallmark Fisheries Company and Tom Lazio Fish Company.
14D1atten of Gulf Oil Corporation, 72 N L . R B 895, 898 ; Matter of Aluminum Company
of America, 60 N. L. R B 278. 282
15 Cf, e g, Matter of Canada Dry Ginger Ale, Incorporated , 1 8 N. L R B. 460.
NORCAL PACKING COMPANY
V. THE DETERMINATION OF REPRESENTATIVES
259
As indicated above, the operations of the Employers, and conse-
quently their employment rolls, fluctuate in accordance with the ar-
rival of fishing boats with fresh supplies of fish. Future operations
are therefore unpredictable, except that a greater frequency of boat
arrivals.may be anticipated in the summer months when.fishing,condi-
tions are generally better. Therefore, in view of the apparent diffi-
culty in ascertaining at this time a precise peak period in the operations
of the Employers in which to conduct the elections so that a representa-
tive vote may be assured, we shall direct that the elections be conducted
as early as possible on a day or days to be determined by the Regional
Director.16 In further view of the large extent of employee inter-
change among most of the employers in the area, as shown above,
we shall direct that a 60-day eligibility period immediately preceding
the date of the elections be used to determine which of the employees
in the appropriate units are eligible to vote in the elections. Thus,
employees otherwise eligible to vote in one of the elections will not be
disfranchised if immediately prior to the elections they happen to be
employed by another employer in the area.
We shall direct that the questions concerning representation which
have arisen be resolved by separate elections by secret ballot, subject
to the limitations and additions set forth in the Direction.
DIRECTION OF ELECTIONS 11
As part of the investigation to ascertain representatives for the
purposes of collective bargaining with Norcal Packing Company,
Fields Landilig, California, and Theo. Weissich Fish Co., Inc., Eureka,
California, separate elections by secret ballot shall be conducted as
early as possible on a day or days to be determined by the Regional
Director, under the direction and supervision of the Regional Director
for the Twentieth Region, and subject to Sections 203.61 and 203.62,
of National Labor Relations Board Rules and Regulations-Series 5,
among the employees in the units found appropriate in Section IV,
above, who were employed at any time during the 60-day period imme-
diately preceding the date of the elections, including employees who
did not work during the said 60-day period because they were ill or on
vacation or temporarily laid off, but excluding those employees who
16 Matter of Greenwich Oyster Company , 73 N L R B 1459.
37 Having been allowed a reasonable time in which to comply with the filing requirements
of Section 9 (f), (g), and ( h) of the National Labor Relations Act, as amended , effective
August 22, 1947, and having nevertheless failed to comply with such requirements, the
Intervenor will not be accorded a place on the ballot.
781902-48-vol. 76-18
260 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
have since quit or been discharged for cause and have not been rehired
or reinstated prior to the date of the elections, and also excluding em-
ployees on strike who are not entitled to reinstatement, to determine
whether or not they desire to be represented by The Amalgamated
Meat Cutters and Butcher Workmen of North America, Local No. 445,
AFL, for the purposes of collective bargaining.
CHAIRMAN HERZOG took no part in the consideration of the above
Decision and Direction of Elections.