United Fruit Company

National Labor Relations Board - Board Decisions

Apr 21, 1939

12 N.L.R.B. 404 (N.L.R.B. 1939)

In the Matter Of UNITED FRUIT COMPANY and INTERNATIONAL LONG-
SHOREMEN AND WAREI-IOUSEMEN'S UNION, DISTRICT #3, LOCAL
#901, AFFILIATED WITH C. I. O.
Case No. C-864.-Decided April 01, 1939
Shipping Industry-Interference. Restraint, and Coercion: charges of, dis-
missed-Str i ke-Conciliation: efforts at, by city of Philadelphia-Closed-Shop
Contract-Discrimination: discharge for, joining rival union; where valid
closed-shop contract exists, defense as to charges of discrimination ; charges
of, dismissed-Complaint: dismissed.
Mr. Jerome I. Macht, for the Board.
Mr. William K. Jackson and Mr. John L. Warren, of Boston,
Mass., for the respondent.
Mr. William L. Standard, by Mr. Max Lustig, of New York City,
and Mr. Philip Dorfman, of Philadelphia, Pa., for the I. L. W. U.
Mr. M. Herbert Syme and Mr. Maurice Abrams, of Philadelphia,
Pa., for the I. L. A.
Mr. William Stix, of counsel to the Board.
DECISION
AND
ORDER
STATEMENT OF THE CASE
Upon a charge and amended charges duly filed by International
Longshoremen and Warehousemen's Union, District #3, Local #901,
affiliated with the Committee for Industrial Organization, herein
called the I. L. W. U., the National Labor Relations Board, herein
called the Board, by the Acting Regional Director for the Fourth
Region (Philadelphia, Pennsylvania), issued its complaint, dated
May 24, 1938, alleging that United Fruit Company, Philadelphia,
Pennsylvania, herein called the respondent, had engaged in and was
engaging in unfair labor practices affecting commerce within the
meaning of Section 8 (1) and (3) and Section 2 (6) and (7) of the
National Labor Relations Act, 49 Stat. 449, herein called the Act.
Copies of the complaint and notice of hearing were duly served upon
the respondent and the I. L. W. U. and also upon International
Longshoremen's Association, Local #1332, herein called the I. L. A.,
12 N L. R. B., No 49.
404
UNITED FRUIT COMPANY 405
affiliated with the American Federation of Labor, which petitioned
for and was granted leave to intervene.
The complaint, as amended, alleged in substance that in February
and March 1937, the respondent terminated the employment of, de-
nied their regular employment to, and has since refused to reinstate
14 named employees because they joined and assisted the I. L. W. U.11
The respondent, by its answer filed on June 4, 1938, admitted certain
allegations of fact as to its business, but denied all the other allega-
tions of the complaint. It pleaded affirmatively that prior to the
dates of the alleged discriminatory practices it had entered into a
closed-shop contract with the I. L. A. which remained in force until
May 3, 1938, when it was renewed for the term of a year, and that
any discharge of or refusal to employ persons named in the com-
plaint was in accordance with those closed-shop contracts.
Pursuant to notice, a hearing was held in Philadelphia, Pennsyl-
vania, from June 27 through July 6, 1938, before Wright Clark, the
Trial Examiner duly designated by the Board. The Board, the
respondent, the I. L. W. U., and the I. L. A. were represented by
counsel and participated in the hearing. Full opportunity to be
heard, to examine and cross-examine witnesses, and to introduce evi-
dence bearing on the issues was afforded all parties. During the
course of the hearing the Trial Examiner made several rulings on
motions and on objections to the admission of evidence. The Board
has reviewed these rulings and finds that no prejudicial errors were
committed. All rulings of the Trial Examiner are hereby affirmed.
On August 22, 1938, the Trial Examiner filed , his Intermediate
Report, copies of which were duly served upon all the parties, rec-
ommending that the complaint be dismissed. The I. L. W. U. filed
exceptions to the Intermediate Report on September 6, 1938,2 and
a brief in support thereof on September 24, 1938. Pursuant to no-
tice, a hearing was held before the Board on December 29, 1938, for
the purpose of oral argument on the exceptions to the Intermediate
Report and on the record. The respondent, the I. L. W. U., and
the I. L. A. were represented by counsel and participated in the oral
argument. In accordance with leave granted, the I. L. A. on Janu-
i The persons named in the amended complaint , together with the dates on which
their employment is alleged to have been terminated , are as follows :
On or about February 28, 1938, Francis Dunbar, Joseph Warren, Michael Canning,
Nick Rossi , Sylvester Koch, Francis Czyzewski , James Costanzo, John Keafer (also
known as John Dixon ), William J Gallagher
On or about March 7, 1938 , Earl Vann, Frank McDermott, William A. Wichert.
On or about March 7, 10, 14, 1938 , Charles Brown
On or about March 10, 14, 1938, John Gray.
On motion of the Board's attorney, the complaint was dismissed during the hearings
as to Earl Vann.
2 The time for filing exceptions was extended until September 6, 1938, by an order of
the Board issued on October 4, 1938, nunc pro tunc, as of August 30, 1938
406 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ary 21, 1939, filed a brief. The I. L. W. U. did not avail itself of
permission given it to reply thereto.
The Board has considered the briefs, and the arguments presented
to it orally. The Board has reviewed the I. L. W. U.'s exceptions
to the Intermediate Report and finds them to be without merit.
Upon the entire record in the case the Board makes the following :
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
The respondent, a New Jersey corporation with its principal office
at Boston, Massachusetts, is engaged by itself and through various
wholly owned subsidiaries in the growth, purchase, transportation,
sale , and distribution of bananas and other tropical products, and
in the operation of a line of steamships for the transportation of
passengers , freight, and mail. The bananas and other tropical prod-
ucts handled by the respondent are grown or purchased in Central
and South America and in the West Indies, are imported through
various ports of the United States, and are distributed and sold by a
wholly owned subsidiary of the respondent, the Fruit Dispatch Com-
pany, with approximately 50 branch offices throughout the country.
The respondent's steamships, approximately 50 in number, operate
between Atlantic and Gulf ports and ports of Central and South
America and the West Indies. During the year ending in June 1937,
these ships carried, in addition to 26,000,000 stems of bananas and
other cargo owned by the respondent, 750,000 tons of freight and
42,500 passengers.
The present controversy arises out of the respondent's operations
at Pier 9, Philadelphia, Pennsylvania, where the cargoes of its ships
are unloaded and placed on trucks or railroad cars for distribution.
Vessels of the respondent arrive in Philadelphia once or twice a
week and banana handlers, numbering approximately 400, are em-
ployed by the respondent to unload them.
We find that the respondent is engaged in commerce within the
meaning of Section 2 (6) of the Act.
H. THE ORGANIZATIONS INVOLVED
International Longshoremen and Warehousemen's Union, District
#3, Local #901, is a labor organization affiliated with the Committee
for Industrial Organization. It admits to membership employees of
the respondent at its Philadelphia pier.
International Longshoremen's Association, affiliated with the
American Federation of Labor, is a labor organization which admits
UNITED FRUIT COMPANY 407
to membership employees of the respondent at its Philadelphia pier.
It maintains , at Philadelphia, Local #1332 and Local #1291.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The closed-shAop contract with, the I. L. A.
During April 1937, several employees at the respondent's thereto-
fore unorganized Philadelphia pier talked with workers of the near-
by Standard Fruit Company pier concerning the formation of a
union and, as a result of these conversations, decided to obtain the
assistance of the I. L. A. and to call a strike for union recognition
and betterment of wages on the occasion of the first ship arrival at
the respondent's pier in May. On May 2 members of this group who
were employed at the Standard pier conferred with Paul P. Baker,
vice president of the Atlantic Coast District and organizer of the
I. L. A., concerning the proposed strike. On the following day, May
3, the respondent's employees went on strike. Banana handlers who
had already been "shaped up" 3 left their work and men standing
outside the pier refused employment. Baker and Clifford Carter, an
I. L. A. delegate, were active in conducting the strike. The I. L. A.
distributed union buttons to most of the men. Through a delegation
which included Baker, Carter, and two men named in the complaint,
a demand was presented to the manager of the respondent's Phila-
delphia division, Lester Worthley Minchin, for recognition of the
I. L. A. and for the "deep water" wage scale in place of the "coast-
wise" scale which the respondent had been paying.4 The respondent
offered a 5-cent increase in hourly wages, but this was rejected by
the men when presented to them by a member of the delegation.
Harold W. Butler, vice president of the Philadelphia Storage Bat-
tery Company in charge of industrial relations and member of a
board established by the mayor of Philadelphia to mediate labor
disputes, arrived at the pier shortly after the strike started. As the
result of Butler's efforts the respondent and the union delegation
agreed that work would be resumed immediately, that a meeting
would be held that evening at the City Hall to discuss the Union's
demands, and that the prospective settlement would be retroactive.
Baker presented this proposal to the strikers, most of whom, on his
advice, accepted it and went back to work. Six men, including Can-
3 The respondent uses the shape -up system of hiring under which, whenever a ship
arrives , foremen select a crew of banana handlers from men assembled in front of
the pier seeking employment . Although men are hired anew for each day 's work,
foremen make an effort to hire their regular "gangs. " When a man is chosen by the
foremen, he receives a pink check which he exchanges at the timekeeper 's window for
a brass number.
4 Under the deep-water scale men received $ 1 an hour for straight time and $ 1.50 for
overtime , whereas the coastwise rates were 65 cents and 95 cents respectively.
408 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ning, Dunbar, and Warren, were informally elected by the employees
to represent them at the evening meeting.
Butler presided at the City Hall conference, which was attended
by officials of the respondent and of the Standard Fruit Company,
by delegations of employees of the two companies, and by Baker and
Carter. After several hours of discussion Butler suggested that the
matters which had been agreed upon should be reduced to writing.
The resulting document 5 established rates of pay and hours of work
for a year's period. At 2 o'clock in the morning of May 4, after it
had been read aloud, the agreement was signed by the respondent's
officials, by the representatives of the employees, and by Baker, who
placed the letters "I. L. A." after his signature.
Witnesses for the respondent and for the I. L. A., as well as Butler,
testified that immediately before Baker signed the contract he said
that it should be understood that "button men" would have all the
work and that Minchin so agreed. Warren, Dunbar, and Canning
testified that they did not hear Baker or Minchin say anything to
this effect.
As a defense to the discriminatory practices alleged in the com-
plaint, the respondent contends that the discharges, which are dis-
cussed hereafter," were made pursuant to the closed-shop contract
constituted by this oral agreement. This contention was sustained
by the Trial Examiner in his Intermediate Report. By its excep-
tions to that Report the I. L. W. U. frames the following issues :
First, whether on May 4 a closed-shop contract was made; second,
whether at the time the contract was allegedly made, and as a neces-
sary condition for its validity, the I. L. A. had been designated by
a majority of the respondent's employees in an appropriate unit as
their representative for the purposes of collective bargaining; and
finally, whether, assuming that such a contract was made, the re-
spondent is barred from asserting it as a defense if the employees
were not notified of its existence and if it was not seasonably
enforced.
With respect to the making of the closed-shop contract on May 4,
the testimony of witnesses who were at the night conference is in
conflict. We are persuaded, however, by the evidence-especially the
testimony of Butler who was present at the negotiations in an offi-
cial capacity and who, as a witness, was free from partisan interest-
that an oral closed-shop agreement between the respondent and the
I. L. A. was made on that date. This conclusion is confirmed by
other evidence establishing that immediately following May 4 the
'The document was entitled , "Memorandum of agreement between the Mayors Labor
Board, the United Fruit Company, and a committee of employees of the United Fruit
Company engaged in discharging banana cargoes in the port of Philadelphia."
6 Infra, footnote 16.
UNITED FRUIT COMPANY 409
respondent and the I. L. A. acted in a manner consistent with the
existence of such a closed-shop contract.
On May 4, the pier manager instructed the head stevedore, who
in turn instructed the foremen, that only union men should be hired.7
The foremen received similar orders during May from Harry Levin,
an I. L. A. shop steward. I. L. A. stewards and delegates were often
active in preventing men who did not have buttons from being hired.
The head stevedore testified that, in so far as he knew, only I. L. A.
men were hired after May 3. Within a few days after the strike,
"a good majority" of the employees had signed formal applications
for membership in the I. L. A. At least nine of the persons named
in the complaint were members and several testified that they joined
"because everybody else was joining." 8
That the employees received notice of the necessity to maintain
I. L. A. membership in order to work is evidenced by the fact that
in July 1937, Levin posted a notice on the respondent's pier warning
the men that if their dues were not paid promptly they might be
replaced by workers from other piers who were not in arrears in
their I. L. A. dues.0
One foreman testified that he had employed only button men. The
testimony of several other foremen was even more indicative that
the I. L. A. exercised control over employment at the pier. William
Lawrence Adams, a foreman, testified that he had once requested
from his steward and obtained permission to employ non-members.
Another foreman, Charles Joseph Bailer, who denied that he received
instructions from the respondent concerning the closed shop, when
asked whether he had ever employed non-members, said that once
the steward, after telephoning union headquarters, had instructed
him to "take in anybody on the avenue." 10 Moreover, Bailer did not
on February 26 question the I. L. A.'s authority to tell him not to
hire certain men.ll
On January 24, 1938, over a month before the discharges with
which we are here concerned, the I. L. A. obtained the dismissal of
° Bailer , one of the foremen , denied that he had received such instructions. We do
not believe the denial , however , because it is inconsistent with testimony of and evidence
concerning Bailer which we discuss tinfra, and because it was controverted by other
witnesses.
8 While Warren testified that 40 or 50 non-members worked at the pier , he did not
state whether their employment was regular or merely temporary and he admitted that
some of them had worn buttons , « hich tends to substantiate the existence of a closed
shop.
U The evidence mentioned in footnote 8, supra, that non-members of the I. L A. wore
buttons is further proof that employees knew of the closed shop That it was necessary
to belong to the I . L. A to work at the pier and that the employees were aware of the
necessity may also be inferred from the testimony of Levin that he had heard that
buttons were passed from one man to another.
is John Austin , who was also a union steward , was the only other foreman to appear
as a witness He stated that he had employed union members exclusively on his regular
"gangs," but that lie had once hired non-members for an exti a "gang."
11 See infra.
410 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Rossi, an I. L. W. U. member and one of the employees named in the
complaint, after he had refused to sign • a new application blank for
membership in the I. L. A., which- he had joined in Mav.12 A con-
siderable number of employees struck in protest against Rossi's dis-
charge. I. L. A. officials were unable to persuade the men to resume
work and finally went away. Canning thereupon acted as a spokes-
man for the strikers, who returned to work when Minchin agreed to
reinstate Rossi and to pay everyone for time lost during the stop-
page. The existence of a closed-shop contract is substantiated by
Rossi's discharge and it is irrelevant that men on the pier were not
sympathetic with the Union's action.
On the basis of the entire record we find that on May 4, 1937, the
respondent and the I. L. A. -agreed that for a period of 1 year mem-
bership in the I. L. A. would be a condition of employment for
banana handlers at the respondent's pier.
We turn now to the question whether, at the time the contract was
made, the I. L. A. represented a majority of the respondent's em-
ployees in an appropriate unit. On the basis of the record we find,
there being no contention to the contrary, that the banana handlers
employed by the respondent at its Philadelphia pier constitute a unit
appropriate for the purposes of collective bargaining-18 Baker and
Minchin testified that I. L. A. buttons were distributed to and worn
by "all" the employees during the strike. While Czyzewski said that
there were more men without buttons than with buttons and two men
denied having worn them, we find, on the basis of Minchin and Ba-
ker's testimony, that most of the men had buttons. The strike,
moreover, was completely effective ; work had ceased altogether. Al-
though the usual formal indicia for designation of a bargaining rep-
resentative are not present, only one union was active on the pier
at the time and there was no opportunity in the confusion and haste
of the strike for the execution of signed authorizations. We are of
the opinion that, under all the circumstances of this case, participa-
tion in the strike by an ample majority of the men and their obvious
acquiescence in and support of the I. L. A.'s assumption of the direc-
tion and control of the strike and settlement, coupled with the wear-
ing of I. L. A. buttons, constituted an adequate designation of
the I. L. A. as their bargaining representative.14 We find that on
' In January and February 1938, I. L. A delegates and stewards , pursuant to instruc-
tions from national headquarters , required members to sign 'new application cards. They
told one man named in the complaint that, if he failed to sign a card, he would be
"sorry," and another that he would not be permitted to continue working at the pier.
Is See Matter of Aluminum Line et al. and International Longshoremen and Warehouse-
men's Union, 8 N. L. R . B 1325.
u See Matter of Combustion Engineering Company, Inc . and Steel Workers Organizing
Committee, for and in behalf of Amalgamated Association of Iron, Steel and Tin Workers
of North America, 5 N. L. R . B. 344, 349; Matter of Century Mills , Inc. and South Jersey
Joint Board, of the International Ladies Garment Workers Union , 5 N, L. R . B. 807, 811.
UNITED FRUIT COMPANY 411
May 3, 1937, a majority of the respondent's employees in an appro-
priate unit designated the I. L. A. as their representative for the
purposes of collective bargaining.
With respect to the third issue we find, on the facts and evidence
hereinabove considered, that the employees were aware of the exist-
ence of the closed-shop contract and that both the respondent and
the I. L. A. made timely and reasonable efforts to enforce it. It is
therefore unnecessary for us to determine the validity, as a matter
of law, of the I. L. W. U.'s contention that, if the closed-shop con-
tract was not seasonably enforced, the respondent cannot rely on it
as a defense. e
B. Organization of the I. L. W. U.
The I. L. W. U. began to organize the respondent's employees in
September 1937. Eleven of the persons named in the complaint
joined the new Union and several of them were elected officers. Mem-
bers.of the I. L. W. U. solicited recruits both on and off the pier. In
February 1938, an I. L. W. U. delegation, which included an organ-
izer, an attorney, and Zzyzewskj, Costanzo, Dunbar, Rossi, and War-
ren, called on Minchin. Minchin said that the respondent had a
contract with the I. L. A. and refused to talk to any "outsider,"
though he was willing to confer with the employee members of the
group.
C. The alleged diecrvmination
On February 24, 1938, the secretary of I. L. A. Local 1332 wrote
to Bailer,15 instructing him to come to the union hall on February
26. When he appeared, the union trustees designated 10 persons cus-
tomarily employed by the respondent, including 7 named in the com-
plaint, and directed him not to hire them on the following Monday,
February 28, because they belonged to the C. I. O. The next day
Bailer related to Warren and Canning, who were hmong those desig-
nated, what had occurred. Canning testified that from the way
Bailer spoke he inferred that he "already was discharged."
On February 28 Bailer informed Minchin of the instructions he had
received from the I. L. A. and said that, since he lived in the same
neighborhood as the men whom he had been ordered not to hire, he
wished that the I. L. A. would itself tell the men that they could
not work at the respondent's pier. Minchin advised him, however,
to carry out the Union's instructions.
Bailer thereupon refused to hire Canning, Czyzewski, Dunbar,
Keafer, and Rossi. He told Warren, Canning, and Dunbar to go to
15
Foremen are eligible for membership in the I. L. A. and Bailer was a member.
412 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the office, where Joseph O'Mara, an I. L. A. delegate, in the presence
of Minchin, said, "You are not going to work on this pier. You
are C. I. O. men." Minchin, who testified that I. L. W. U. men were
not permitted to work on the pier because of the closed shop, said
nothing. Adams, another foreman, refused to employ Koch. O'Mara
told Costanzo that he could not work because he was secretary of the
C. I. O.
Following these occurrences some employees who were already
working and who were sympathetic with the I. L. W. U. stopped
the conveyors and halted work on the pier. At the direction of Min-
chin, city police forced strikers who would not resume work, includ-
ing Brown, Gallagher, and Wichert, to leave the wharf. Gallagher
attempted to return but was prevented by O'Mara from so doing.
On March 7, when the next ship came in, the respondent, at the re-
quest of the I. L. A., refused to employ Brown, Wichert, Gray, and
McDermott.
D. Conclusions
As we have found in Section III A above, the respondent entered
into a closed-shop contract with the I. L. A. on May 4, 1937, covering
the banana handlers at its Philadelphia pier. Section 8 (3) of the Act
provides:
... nothing in this Act . . . shall preclude an employer from
making an agreement with a labor organization (not established,
maintained, or assisted by any action defined in this Act as an
unfair labor practice) to require as a condition of employment
membership therein, if such labor organization is the representa-
tive of the employees as provided in section 9 (a), in the appro-
priate collective bargaining unit covered by such agreement
when made.
The I. L. A. was not established, maintained, or assisted by any un-
fair labor practice. The banana handlers employed by the respond-
ent at its Philadelphia pier constitute a unit appropriate for the
purposes of collective bargaining, and the I. L. A. on May 4, 1937,
had been designated by a majority of the employees in that unit as
their representative for the purposes of collective bargaining. In
view of these findings, nothing in the Act precluded the respondent
and the I. L. A. from agreeing to require membership in the I. L. A.
as a condition of employment.
The I. L. A. on February 28 and March 7, 1938, directed the re-
spondent not to employ the persons named in the complaint, and the
respondent, relying on the closed-shop contract, complied with those
UNITED FRUIT COMPANY 413
instructions 16 Since the contract was not invalid, it operates as a
defense to the charge of discriminatory practices contained in the
complaint.
We find, on the basis of the entire record, that the respondent has
not, by discharging or refusing to hire the persons named in the
complaint, unlawfully discriminated in regard to their hire or tenure
of employment or any term or condition of the employment, and has
not thereby interfered with, restrained, or coerced them or any other
of its employees in the exercise of the rights guaranteed them by
the Act.
Upon the basis of the foregoing findings of fact and the entire
record in the proceeding, the Board makes the following :
CONCLusIONs OF LAW
1. The operations of the respondent, United Fruit Company, occur
in commerce within the meaning of Section 2 (6) and (7) of the
Act.
2. International Longshoremen and Warehousemen's Union, Dis-
trict #3, Local #901, affiliated with the Committee for Industrial
Organization, and International Longshoremen's Association, affili-
ated with the American Federation of Labor, are labor organizations,
within the meaning of Section 2 (5) of the Act.
3. The banana handlers employed by the respondent at its Phila-
delphia pier constitute a unit appropriate for the purposes of col-
lective bargaining, within the meaning of Section 9 (a) of the Na-
tional Labor Relations Act.
4. International Longshoremen's Association, affiliated with the
American Federation of Labor, having on May 3, 1937, been selected
by a majority of the banana handlers employed by the respondent
at its Philadelphia pier as their representative for the purposes of
collective bargaining, was, on May 4, 1937, the exclusive representa-
tive of all such employees for the purposes of collective bargaining
in respect to rates of pay, wages, hours of employment, and other
conditions of employment as provided in Section 9 (a) of the Na-
tional Labor Relations Act.
16 Most of the men named in the complaint were members of the I L. A and had
never been formally expelled . The rules of Local 1332 permit its trustees to suspend
a member for belonging to a "dual" organization and thereupon to prevent him from
working on any "job" over which the Local has jurisdiction until he has been given
notice of and tried upon the charges made against him. From the trustees ' instruc-
tions to Bailer it is clear that some of the men named in the complaint had been
suspended Irrespective of whether or not other persons named in the complaint who
belonged to the I L A. had been suspended by that Union, we find that the respondent
did not act unreasonably in treating all the men named in the complaint as excluded
from work by the terms of the closed -shop contract.
414 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
5. The respondent, by discharging or refusing to employ Francis
Dunbar, Joseph Warren, Michael Canning, Sylvester Koch, Nick
Rossi, Francis Czyzewski, James Costanzo, John Keafer, William J.
Gallagher, Frank McDermott, William A. Wichert, Charles Brown,
and John Gray, has not engaged in any unfair labor practices within
the meaning of Section 8 (1) or (3) of the Act.
ORDER
Upon the basis of the foregoing findings of fact and conclusions
of law and pursuant to Section 10 (c) of the National Labor Rela-
tions Act, the National Labor Relations Board hereby orders that
the complaint against United Fruit Company be, and it hereby is,
dismissed.