Wards Cove Packing Co., Inc.

National Labor Relations Board - Board Decisions

Jul 26, 1966

160 N.L.R.B. 232 (N.L.R.B. 1966)

232 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
actual reason for its action against White in violation of Section 8(a)(1) and (3)
of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above , occurring in
connection with the operations of Respondent described in section I, have a close,
intimate, and substantial relation to trade, traffic , and commerce among the several
States and tend to lead to labor disputes burdening and obstructing commerce and
the free flow of commerce.
V. THE REMEDY
It having been found that Respondent has engaged in and is engaging in certain
unfair labor practices , it will be recommended that it cease and desist therefrom
and that it take certain affirmative action designed to effectuate the policies of the
Act.
It having been found that Respondent discriminated in regard to the hire and
tenure of employment of Harold L. White by discharging him on March 22, 1965,
it will be recommended that Respondent offer him immediate and full reinstate-
ment to his former, or substantially equivalent , position without prejudice to his
seniority or other rights and privileges and make him whole for any loss of pay
he may have suffered by reason of said disciumnation against him by payment to
him of a sum of money equal to that which he would have earned as wages from
the date of the discrimination to the date of his reinstatement , less his net earnings
during said period in accordance with the formula set forth in F. W. Woolworth
Company , 90 NLRB 289, with interest thereon at 6 percent per annum.
Because these unfair labor practices engaged in by Respondent go to the very
heart of the Act, I sense an opposition to the policies of the Act in general and
hence deem it necessary to order Respondent to cease and desist from in any
manner infringing on the rights guaranteed its employees in Section 7 of the Act.
CONCLUSIONS OF LAW
1. Amalgamated Association of Street , Electric Railway and Motor Coach
Employees of America , AFL-CIO, is a labor organization within the meaning of
Section 2(5) of the Act.
2. By discharging Harold L. White on March 22, 1965, thereby discriminating in
regard to his hire and tenure of employment and discouraging union membership
and activities among its employees , Respondent has engaged in and is engaging in
unfair labor practices within the meaning of Section 8 ( a)(3) and ( 1) of the Act.
3. By interfering with, restraining , and coercing its employees in the exercise of
the rights guaranteed them in Section 7 of the Act, Respondent has engaged in and
is engaging in unfair labor practices within the meaning of Section 8(a)(1) of the
Act.
4. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and ( 7) of the Act.
[Recommended Order omitted from publication.]
Wards Cove Packing Company, Inc. and The Nakat Packing Cor-
poration Waterfall Plant and New England Fish Company I
and International Longshoremen 's and Warehousemen 's Union,
Independent , Petitioner. Cases 1,9-RC-3863, 3864, and 3865.
July 26,1966
DECISION AND ORDER
Upon petitions duly filed under Section 9 (c) of the National Labor
Relations Act, as amended, hearings were held on March 4, 1966, and
'The name was amended during the hearing to Nefco -Fidalgo Packing Company, to
reflect the joint venture under which the Company is operating in 1966.
160 NLRB No. 23.
e
WARDS COVE PACKING COMPANY 233
May 5,1966, before a Hearing Officer of the National Labor Relations
Board. The Hearing Officer's rulings made at the hearing are free
from prejudicial error and are hereby affirmed. Thereafter, the Peti-
tioner and the Intervenor,2 each filed a brief which the National
Labor Relations Board has considered.
Pursuant to the provisions of Section 3 (b) of the Act, the Board
has delegated its powers in connection with this case to a three-
member panel [Members Fanning, Brown, and Jenkins].
Upon the entire record in this case, the Board finds :
1. The Employers are engaged in commerce within the meaning of
the Act.
2. The labor organizations involved claim to represent certain
employees of the Employers.
3. No question affecting commerce exists concerning the representa-
tion of the employees of the Employers within the meaning of Sec-
tions 9(c) (1) and 2(6) and (7) of the Act, for the reasons stated
below :
The Petitioner seeks to represent separate units of the resident
cannery workers at plants of the three Employers.
The Employers are engaged in the processing and the wholesale
sale of canned fish. The particular plants involved in these petitions
are located in the southeast section of Alaska.
For some 20 years prior to 1959 the employers in southeastern
Alaska, as well as other areas of that State, were represented in their
negotiations with various unions by a multiemployer association, the
Alaska Salmon Industries, Inc. (ASI). Among the unions involved
was the Intervenor, United Industrial Workers of North America,
Pacific District, SIU, AFL-CIO (hereinafter referred to as UIW),
or its predecessor, which represented the resident cannery workers.
The master contracts negotiated by ASI were signed by ASI in
behalf of the employers it represented and were then considered
binding although on occasion individual employers would also sign
the master agreement. Negotiations were on an annual basis.
In 1959, ASI was disbanded for reasons unrelated to its role in
negotiating labor agreements. The employers then secured the serv-
ices of Walter Sharpe, a former assistant manager of ASI, to handle
labor contract negotiations. Sharpe's authority to represent various
2 The Intervenor, United Industrial Workers of North America, Pacific District, SIU,
AFL-CIO, was permitted to intervene at the hearings on the basis of contractual interests
in the employees involved, and as being named in the petitions as the currently recognized
bargaining representative. The Alaska Fisherman's Union, SIU,' AFL-CIO, was permitted
to intervene at the hearings on March 4, 1966, on the basis of a contractual interest in
the employees named in the original petition. After the petitions were amended to exclude
employees covered in labor contracts other than those of the Intervenor United Industrial
Workers, the Alaska Fisherman's Union although not formally withdrawing from the
proceedings did not participate in the subsequent hearings on May 5, 1966. In Case 19-
RC-3865, Machinists Locals 79, 233, and 1375, International Association of Machinists
and Aerospace Workers, AFL-CIO, intervened but then subsequently withdrew.
a
234 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employers was given informally and the negotiations were conducted
annually in Seattle, Washington. Although the number of employees
from Alaska who were represented by Sharpe varied from year to
year; it appears this resulted primarily because some employers did
not operate each year. Insofar as southeastern Alaska was concerned,
the number of packers represented by Sharpe remained quite stable
and constituted about 75 percent of the major packers in that area:
Packers represented by Sharpe might be present at negotiations but
their presence was not necessary as it was understood that Sharpe was
the spokesman and chief negotiator. Sharpe's authority to represent
packers was given on an individual basis and the contracts he nego-
tiated were individually signed by the employers and not by Sharpe.
However, no packer ever rescinded Sharpe's authority to represent it
after negotiations began and there were no instances of a packer
refusing to be bound by contracts negotiated by Sharpe. Moreover,
the record indicates that the contracts were identical, and, indeed
the 1965 contract Sharpe negotiated with UIW covering the south-
eastern cannery workers (the employees involved in these petitions)
is entitled "master agreement" and has places for signatures of all
the employers on the same document, even though the contract recites
it is executed severally and not jointly.' The master agreement of 1965
covers seven packers including two of the three packers involved in
these proceedings.4
After the 1965 agreement had been negotiated Sharpe retired and a
number of the employers, including the three involved in the present
petitions, met and selected Robert Hirstel to succeed Sharpe. In
December 1965, Robert Hirstel was called and informed that he had
been selected and on January 3, 1966, received a letter in which the
employers told Hirstel that the employers listed in the letter had
agreed to "mutually join together" and were assessing themselves to
finance Hirstel's retainer. Thereafter, 1-Iirstel wrote various unions
informing them that he had been retained to represent each of the
listed employers on "an individual and separate Employer basis,"
and that negotiations would be conducted for and on behalf of these
separate employers for each contract which had been or would be
timely opened.' On February 9, 1966, the Petitioner filed three peti-
3 The contract ran to April 30, 1966, and from year to year thereafter, unless modified
* The Nakat Corporation, due to personal differences, withdrew Sharpe's authority to
represent them before the 1965 negotiations began, but thereafter executed an agreement
identical to the one negotiated by Sharpe in behalf of the other packers
E The Employers' letter to Hirstel listed 18 companies and 2 others, including the
Nefco-Fidalgo ;point venture (footnote 1, supra), also authorized Hirstel to represent them
The names of these companies were included in Hirstel's letter to various unions. Included
in the group were the 7 companies who had signed the 1965 master agreement for resident
cannery workers in southeastern Alaska Also included was Nakat Packing Corporation
which had not utilized the services of Hirstel's predecessor, Sharpe, in 1965
WARDS COVE PACKING COMPANY 235
Lions seeking to separately represent the "cannery workers" at each
of the employers involved in these cases.6
From the facts recited above, and from the entire record, we
find that a multiemployer unit is the appropriate bargaining unit.
It is undisputed that bargaining was conducted on a multiemployer
basis for about 20 years before the dissolution of ASI in 1959. The
central issue is whether the changes in bargaining procedure after
that date continue to reflect an unequivocal intent on the part of the
participating employers to be bound by group action. We find, on the
facts before us, that such intent was and is present. This is manifest
in the authorization given to the negotiators, Sharpe and Hirstel,
the history of never withdrawing such authority after negotiations
began, and the evidence that the contracts so negotiated have never
been rejected by any employer member of the bargaining group.?
Basically all that changed after 1959 was that the multiemployer bar-
gaining shifted from the more formal arrangements inherent in the
ASI to negotiations through a selected negotiator." But there was no
essential change in the attitude of the parties to each other or in the
obligations they undertook with respect to each other. The only
change of note was that whereas the ASI both negotiated and signed
the contract in behalf of the employer, the employers individually
signed the contracts negotiated by Sharpe. However, that change
merely reflects the dissolution of the formal corporation," and in light
of the continued history of employer acceptance of the contracts
negotiated on their behalf, it is clear they considered themselves still
bound by the results of the joint negotiations.")
In concluding that bargaining was conducted on a multiemployer
basis for resident cannery workers in southeast Alaska, we have con-
sidered whether The Nakat Corporation Waterfall Plant is a member
6 During the hearings Petitioner amended its petition to include only the employees
covered by the 1965 labor agreement with the Intervenor, UIW
7 There is no evidence that any of the employers individually retained the right to accept
or reiect the contracts or sought provisions limited to its particular situation . Even if
such was the case , this would not necessarily mean the negotiations were on an individual
rather than multiemployer basis The Kroger Co., 148 NLRB 569 ; Quality Limestone Prod-
ucts, Inc , 143 NLRB 589
8 A formal organization with rules , dues , etc , is not a necessary condition of bargaining
on a multiemployer basis. Korner Kate, Inc , 156 NLRB 1157 , The Kroger Co , supra.
9Footnote 8, supra See also A. B. Harseliteld Press, Inc, 140 NLRB 212, Kiist Gadi8,
121 NLRB 601.
10 For this reason it is not material that the master agreement of 1965 specified that it
was executed "severally and not jointly ," as this only indicates the individual respon-
sibility of each employer resulting from the multiemployer bargaining We have also
noted that Hirstel in his letter in 1966 to the various unions stated that he represents the
employers on an individual and separate basis, but here the practice of many years belies
the precise wording Moreover, Hirstel, as did Sharpe before him, represents employers
throughout Alaska, as well as those employing resident cannery workers in southeastern
Alacka (the unit involved here) and theretore, the letter appears to involve other bargain-
ing situations which are not before us.
236 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of the multiemployer unit and also the importance of periodic changes
in the number of companies participating in the joint negotiations.
In 1965, Nakat, due to personal differences with Sharpe withdrew
his authority to represent it, although it subsequently signed an
agreement identical to the one he had negotiated for other members
of the unit.11 However, Nakat was among the companies which
authorized Hirstel in December of 1965, and January 1966, to repre-
sent it. It is evident that, even if Nakat had withdrawn from asso-
ciationwide bargaining, it rejoined before these petitions were filed,
and has again undertaken the obligations of multiemployer bargain-
ing in 1966 without objection by any of the parties12
Nor does the fact that there were occasional changes in the employer
group negotiating with the resident cannery workers require us to
conclude that our finding of a multiemployer unit is inappropriate.13
In fact, however, the membership appears to have been fairly con-
stant over the years, except to the extent an employer member did
not operate for a season or in an isolated instance like Nakat's. There-
fore, such changes as occurred in the composition of the multiem-
ployer unit, came about because of periodic changes in business
conditions and without objection by any of the parties engaging in
bargaining negotiations. In these circumstances, we conclude that a
readily definable multiemployer bargaining unit has been established
over the years.
Accordingly, we find that single-employer units of the employees
of Nakat, Nefco-Fidalgo, and Ward's Cove are not appropriate and
we shall dismiss the petitions herein.
[The Board dismissed the petitions.]
' Footnote 4, supra.
13 Cf. Thos. De La Rue, Inc., 1,51 NLRB 234.
13 Quality Limestone Products, Inc., supra.
Strain Poultry Farms, Inc.' and International Union of District
50, United Mine Workers of America, Petitioner . Case 10-RC-
6652. July 26,1966
DECISION AND DIRECTION OF ELECTION
Upon a petition duly filed under Section 9(c) of the National
Labor Relations Act, as amended, a hearing was held before Hearing
Officer Thomas P. Harper. The Hearing Officer's rulings made at the
1 The Employer' s name appears as amended at the hearing
160 NLRB No. 22,