Northern Packing Corp.

National Labor Relations Board - Board Decisions

Oct 24, 1945

64 N.L.R.B. 452 (N.L.R.B. 1945)

In the Matter of NORTHERN PACKING CORPORATION and FISH CANNERY
WORKERS ' UNION OF THE PACIFIC , SAN FRANCISCO BAY AREA,
A. F. OF L.
Case No. 20-R-14.53.Decided October 24, 1945
Mr. C. Richard Lange and George J. Christo, of San Francisco,
Calif., for the Company.
Mr. Charles J. Janigian, of San Francisco, Calif., and Mr. George
Issel, of Richmond, Calif ., for the A. F. of L.
Gladstein, Grossman, Sawyer & Edises, by Doris B. Marasse, of
San Francisco, Calif., for the C. I. O.
Mr. John E. Lawyer, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
Upon petition duly filed by Fish Cannery Workers' Union of the
Pacific, San Francisco Bay Area, A. F. of L., herein called the A. F.
of L., alleging that a question affecting commerce had arisen concern-
ing the representation of employees of Northern Packing Corpora-
tion, San Francisco, California, herein called the Company, the Na-
tional Labor Relations Board provided for an appropriate hearing
upon due notice before Robert E. Tillman, Trial Examiner. Said
hearing was held at San Francisco, California, on August 28, 1945.
At the commencement of the hearing, the Trial Examiner granted a
motion of Food, Tobacco, Agricultural and Allied Workers Union
of America, Local No. 7, herein called the C. I. 0., to intervene. The
Company, the A. F. of L., and the C. I. O. appeared at and partici-
pated in the hearing, and 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.
All parties were afforded opportunity to file briefs with the Board.
64 N. L R. B., No. 82.
452
NORTHERN PACKING COMPANY 453
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
I. THE BUSINESS OF THE COMPANY
Northern Packing Corporation, a California corporation, is en-
gaged in the business of processing and packing sardines at its only
plant in San Francisco, California. During the 1944-1945 season,
the Company sold products, consisting of canned fish, fish meal, and
fish oil, having a value of $551,440.20. Approximately 55 percent of
the canned fish was delivered to the armed forces, and virtually all
of the remaining canned fish was shipped to points outside the State
of California. Approximately 23 percent of the fish meal and 35.2
percent of the fish oil was likewise shipped to points outside the State:
The Company admits that it is engaged in commerce within the
meaning of the National Labor Relations Act.
II. THE ORGANIZATIONS INVOLVED
Fish Cannery Workers' Union of the Pacific, San Francisco Bay
Area, affiliated with the American Federation of Labor, and Food,
Tobacco, Agricultural and Allied Workers Union of America, Local
No. 7, affiliated with the Congress of Industrial Organizations, are
labor organizations admitting to membership employees of the
Company.
M. THE QUESTION CONCERNING REPRESENTATION
For approximately 7 years the Company and a. predecessor of the
C. I. 0., have been parties to collective bargaining agreements., The
last contract, and the one in dispute, became effective August 1, 1943.
It provides in part as follows :
Section 18. Renewal. This agreement shall be effective imme-
diately upon its execution,'and shall remain in effect for each
succeeding year thereafter, unless either party shall give written
notice to the other party of its intention to alter or modify any
of the terms or provisions the party intends to make the subject
of alteration or modification, said notice to be given sixty (60)
days prior to August 1, 1943, [sic] or August 1st of any succeed-
ing year thereafter. Then only those terms or provisions shall
11n December 1938, an affiliate of United Cannery, Agricultural, Packing and Allied
Workers of America, C. I. 0., was selected as the collective bargaining representative of
the Company's production and maintenance employees in a consent election (Case No. 20-R-
312). In December 1944, the United changed its name to Food, Tobacco, Agricultural and
Allied Workers of America, C. I. O. We have taken notice of this change of name in prior
cases before the Board. See Matter of Allen and Sandilands Packing Company, et al., 60
N. L. It. B. 1007.
454 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
be subject for negotiations, and the remainder shall remain in
full force and effect. Nothing contained herein shall prevent
either party from giving notice, at 'the time it give [sic] notice
herein provided for, of its intention to add new provisions to the
agreement... .
On August 5,194:4 , the C. I. O.'s predecessor and the Company exe-
cuted a memorandum agreement which recited that the 1943 contract
was to be continued for another year since neither party had given
notice of a desire to change it.2
On February 2, 1945, the A. F. of L. filed a petition with the Board
for investigation and certification as the representative of the Com-
pany's employees, and on April 22, 1945, withdrew the petition upon
the advice of the Regional Director.3 `In May 1945, the A. F. of L.
orally renewed its claim and requested the Company to bargain 4
On May 25, 1945, more than 60 days prior to the anniversary date
of the contract, the C. I. O. sent a letter to the Company in which
it requested negotiations to start for the modification of 9 or 10
clauses of the contract, and the addition of several others, all of a
substantial character. The Company refused to recognize or nego-
tiate with either union until it had been certified by the Board.
The C. I. O. apparently contends that its contract is a bar to the
present proceeding. We find no merit in this contention. Not only
did the A. F. of L. give oral timely notice of its claim to representa-
tion in May 1945,5 but the May 25, 1945, request of the C. I. O. to re-
open the contract for consideration of various substantial changes was
also seasonable, thereby forestalling the automatic renewal of the
contract.6
A statement of a Board agent, introduced into evidence at the
hearing, indicates that the A. F. of L. represents a substantial number
of employees in the unit hereinafter found appropriate?
'In view of the memorandum agreement , and based on the entire record, we construe
Section 18 of the 1944 agreement as meaning that if timely notice of intention to alter or
modify is given by either contracting party this forestalls the automatic renewal of the
contract and all provisions not subject to change are to continue in effect until an agree-
ment is reached concerning the matters to be altered , at which time a new contract is to
be consummated by the parties , accordingly , once the notice contemplated by Section 18
Is given, the contract cannot constitute a bar.
7 Case No. 21'-R-1304.
4 By a letter dated May 31, 1945, the A. P. of L. again advised the Company that It rep-
resented a majority of the production and maintenance employees and requested the Com-
pany to negotiate an agreement The Company ' s representative who received the letter
could not remember the exact date of receipt. However , the envelope containing the letter
bore post office stamps of June 2 and 4, 1945.
6 See Matter of Scintilla Magneto Division , Bendix Aviation Corporation, 61 N. L. R. B.
520 ; Matter of National Fireworks , Inc , 61 N . L. R. B 1597.
" See Matter of Red Jacket Manufacturing Company, 62 N. L. R. B. 740; Matter of Goetz
Ice Co ., 61 N. L. R. B 761.
7 The Board agent reported that the A . F. of L. submitted 91 authorization cards, 89 of
which sere dated in July and August 1945. The C . I. O. relies upon the 1943 contract for
Its interest in the proceeding . There are approximately 130 employees ' in the appropriate
unit.
NORTHERN PACKING COMPANY 455
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.
IV. THE APPROPRIATE UNIT
We find, in accordance with the agreement of the parties, that all
production and maintenance employees of the Company, excluding
office and clerical employees, the superintendent, assistant superin-
tendent, foremen, and all 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
The operations of the Company are seasonal. The 1945-1946 sea-
son commenced August 1, 1945, and will end February 15, 1946. With
the exception of a small maintenance and repair crew retained the
entire year, the Company's employees work only on the days there
are sardines to be canned or processed. It also appears that the num-
ber and identity of the Company's employees may vary materially
from pay roll to pay roll.
The A. F. of L. urges that all employees within the appropriate
unit who, prior to the date of this Decision and Direction of Election,
have worked a total of 6 or more days during the 1945-1916 season,
be permitted to vote. The C. I. 0. agrees, but requests that the work-
ing period be fixed at 10 days. The Company takes no position except
to urge that whatever period is selected should be such as will allow
a fair and substantial number of its employees to participate in the
election.
We are of the opinion that the shorter working period will allow a
more representative number of employees to participate in the elec-
tion. Accordingly, we shall direct that the question concerning rep-
resentation which has arisen be resolved by means of a secret ballot
among the employees 9 in the appropriate unit who, prior to the date
8 Included among the production and maintenance employees is one machinist whom the
International Association of Machinists has bargained for in the past pursuant to an agree-
ment with the Company which has now expired . Although served with notice of the hear-
ing, the Machinists did not appear , and has not indicated that it has any interest in the
proceeding.
8 The parties agree, and we conclude , that "Servicemen ," who are occasionally employed
by the Company , should not be eligible to vote. However , employees of the Company who
are in the armed forces of the United States and who worked the requisite number of days
during the 1945-1946 season prior to their entry into the service , or who « ere employed
on a permanent basis as part of the maintenance and repair crew retained by the Com-
pany during the entire year but did not work the requisite number of days during the
1945-1946 season because of their entry into the service , shall be eligible to participate
in the election if they appear in person at the polls.
456 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of this Decision and Direction of Election, have worked a total of
6 or more days during the 1945-1946 season, 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 Northern Packing
Corporation, San Francisco, California, an election by secret ballot
shall be conducted as early as possible, but not later than thirty (30)
days from the date of this Direction, under the direction and super-
vision of the Regional Director for the Twentieth Region, acting in
this matter as agent for the National Labor Relations Board, and sub-
ject 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, prior to the date of this Decision and Direction of Elec-
tion, have worked a total of 6 or more days in the 1945-1946 season,
including employees who did not work because they were ill or on
vacation or temporarily laid off, and including employees in the
armed forces of the United States who present theinselves in person
at the polls, but excluding any who have quit or been discharged for
cause and have not been rehired or reinstated prior to the date of the
election, to determine whether they desire to be represented by Fish
Cannery Workers' Union of the Pacific, San Francisco Bay Area,
A. F. of L., or by Food, Tobacco, Agricultural and Allied Workers
Union of America, Local No. 7, C. I. 0., for-the purposes of collective
bargaining, or by neither.
INTR. GERARD D. REILLY took no part in the consideration of the above
Decision and Direction of Election.
30 The C. I. O. contended inferentially that a fair election could not be held at the present
time because of alleged unfair labor practices in which the Company engaged . The Regional
Director refused to issue a complaint premised upon charges embracing these alleged
unfair labor practices , and, on appeal , his refusal was sustained by the Board . Accordingly,
we find no reason to postpone the election.