Western Fisheries

National Labor Relations Board - Board Decisions

Nov 6, 1939

17 N.L.R.B. 364 (N.L.R.B. 1939)

In the Matter of WESTERN FISHERIES, A CORPORATION and CANNERY
WORKERS UNION, LOCAL #21173, A. F. OF L.
In the Matter of FISHERMAN'S PACKING CORP., A CORP. and CANNERY
WORKERS UNION , LOCAL #21173, A. F. OF L.
Cases Nos. R-1547 and R-1548, respectively .Decided November 6,
1939
Salmon Canning Industry-Investigations of Representatives : Western: re-
fusal to bargain until certification by Board ; contract between company and
union filing petition and contract covering only members of union and executed
after filing of petition no bar to determination of representatives ; Fisherman's :
controversy concerning representation of employees: contract between company
and both competing unions terminable prior to next fishing season no bar to
determination of representatives-Unit Appropriate for Collective Bargaining:
Western: all employees engaged in handling, processing, and canning fish, includ-
ing warehousing of finished products , excluding executives , supervisory
employees, office employees , machinists , machinists ' helpers, and the time-
keeper ; Fisherman 's : all cannery and warehouse employees including the
matron, but excluding supervisory employees , office employees , machinists,
machinists' helpers, and carpenters-Elections Ordered: due to interchange of
employees between companies in locality, standards adopted permitting an
employee to vote in only one election.
Mr. Patrick H. Walker, for the Board.
Mr. Edward F.. Medley, of Seattle, Wash., for Western.
Mr. Lee Makovich, of Anacortes, Wash., for Fisherman's.
Mr. Nelson Durham, of Seattle, Wash., for Local No. 21173.
Mr. Paul Coughlin, of Seattle, Wash., for Local No. 17.
Mr. Guilford Moe, of Bellingham, Wash., for the I. A. M.
Mr. Robert D. Allen, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTIONS
STATEMENT OF THE CASE
On July 26, 1939, Cannery Workers Union, Local 21173, A. F. of L.,
herein called Local No. 21173, filed with the Regional Director for
the Nineteenth Region (Seattle, Washington) a petition alleging that
a question affecting commerce had arisen concerning the representa-
tion of employees of Western Fisheries, Anacortes, Washington,
17 N. L. R. B., No. 20.
364
WESTERN FISHERIES 365
herein called Western, and requesting an investigation and certifica-
tion of representatives pursuant to Section 9 (c) of the National
Labor Relations Act, 49 Stat. 449, herein called the Act. On August
7, 1939, Local No. 21173 filed with the Regional Director a petition
alleging that a question affecting commerce had arisen concerning the
representation of employees of Fisherman's Packing Corp., Anacortes,
Washington, herein called Fisherman's and, together with Western,
called the Companies, and requesting a similar investigation and
certification. On September 8, 1939, the National Labor Relations
Board, herein called the Board, acting pursuant to Section 9 (c) of
the Act and Article III, Section 3, of National Labor Relations Board
Rules and Regulations-Series 2, ordered investigations with respect
to each petition and authorized the Regional Director to conduct
them and to provide for appropriate hearings upon due notice.
On September 11, 1939, the Regional Director issued a notice of
hearing on each petition, copies of which were served upon Western
and Fisherman's, respectively, upon Local No. 21173, upon Anacortes
Cannery Workers Union, Local 17, C. I. 0., herein called Local No.
17, and upon International Association of Machinists, herein called
the I. A. M. the last two being labor organizations claiming to rep-
resent employees directly affected by the investigations. Pursuant
to the notices separate hearings were held on September 25, 1939,
at Mount Vernon, Washington, before Thomas S. Wilson, the Trial
Examiner duly designated by the Board. The Board, Local No.
21173, and Local No. 17 were represented by counsel; the I. A. M.
by its representative. All participated in the hearings. Western
was represented by counsel; Fisherman's, by its general manager;
each participated in the respective hearings. Full opportunity to
be heard, to examine and cross-examine witnesses, and to introduce
evidence bearing on the issues was afforded all parties. During the
course of the hearing in the proceeding involving Western, the Trial
Examiner made several rulings on objections to the admission of
evidence. The Board has reviewed these rulings of the Trial Exam-
iner and finds that no prejudicial errors were committed. The rulings
are hereby affirmed. On October 5, 1939, Local No. 21173 filed a
brief in each proceeding. Since the hearings were conducted on the
same day and the issues presented are substantially similar, we are
disposing of both cases in one decision.
Upon the entire records in the cases, the Board makes the
following :
FINDINGS OF FACT
I. THE BUSINESSES OF THE COMPANIES
Western Fisheries is a Washington corporation engaged in the
business of canning salmon at Anacortes, Washington. All the ma-
366 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
terials used in the processing and packing operations are shipped
to it by vessels operating on Puget Sound. Western did not operate
during the 1938 season . In 1937 it packed 14,742 cases of salmon
of which approximately 99 per cent were shipped to purchasers
outside the State of Washington.
Fisherman 's Packing Corp. is a Washington corporation engaged
in the business of canning salmon at Anacortes , Washington. The
packing materials used by Fisherman 's in its processing and pack-
ing operations , many of which materials originate in States other
than Washington , are shipped to it by vessels operating on Puget
Sound. In 1938 Fisherman 's packed 60 ,000 cases of salmon, ap-
proximately 99 per cent of which were sold and transported to pur-
chasers outside the State of Washington . At the hearing it was
conceded by Fisherman 's that it is engaged in interstate commerce.
II. THE ORGANIZATIONS INVOLVED
Cannery Workers Union, Local #21173, A. F. of L., is a labor
organization admitting to membership all employees of the Com-
panies engaged in handling , processing , and canning salmon,
including warehouse employees , but excluding executives , office em-
ployees, supervisory employees , machinists , and carpenters.
Anacortes Cannery Workers Union , Local 17 , C. I. 0., is a labor
organization affiliated with United Fishermen of the Pacific, C. I. 0.,
admitting to membership the same classes; of employees of the
Companies as Local No. 21173.
International Association of Machinists is a labor organization
affiliated with the American Federation of Labor. It admits to
membership machinists and machinists ' helpers employed by the
Companies.
III. THE QUESTIONS CONCERNING REPRESENTATION
Western.-In 1937 Cannery Workers Union, Local 18257, the
predecessor of Local No. 21173; entered into a closed-shop contract
with Western. The contract was not produced at the hearing nor
were its terms fully disclosed . It appears , however, that it was to
be effective for one year and thereafter from year to year, in the
absence of notice of termination given by either party 30 days prior
to the stated expiration date. While it was not shown to have been
terminated , no contention was made at the hearing that it was
binding on the parties at that time.
On August 12, 1939, subsequent to the filing of the petition herein,
Local No. 17 entered into a contract with Western, by which West-
ern recognized Local No. 17 as the collective bargaining representa-
tive of its members only . It was not claimed by any party that
either of these contracts is a bar to our determination of represen-
WESTERN FISHERIES 367
tatives of the employees of Western, and we do not consider them
-to be a bar.'
After the filing of the petition, Western posted a notice at its
plant to the effect that no further negotiations would be conducted
with either union until the Board had certified one or the other as
the representative of its employees. At the hearing Western further
expressed its desire for such certification prior to further negotiations
with either labor organization.
Fisherman's.-Prior to the 1938 season, Fisherman's, being ap-
prehensive of possible friction between Local No. 21173 and Local
No. 17, refused to recognize either as the exclusive collective bar-
gaining representative of its employees. Fisherman's insisted upon
what is called, in the industry, a "dual contract" by which it would
recognize both organizations as the representatives of their respective
members in its employ. Such a contract was entered into on July
22, 1938. By its terms it was to remain in effect until May 1, 1939,
and thereafter from year to year in the absence of notice of termi-
nation given 30 days prior to the stated expiration date. No such
notice was given prior to May 1, 1939. However, Local No. 17 has
expressed its intention to terminate the contract prior to the opening
of the 1940 season. Local No. 21173 and Local No. 17 are now each
seeking to represent Fisherman's employees for the purposes of col-
lective bargaining. Under these circumstances, we do not consider
this contract to be a bar to a determination of representatives of the
employees of Fisherman's.
We find that questions have arisen concerning the representation
of employees of each of the Companies.
IV. THE EFFECT OF THE QUESTIONS CONCERNING REPRESENTATION UPON
COMMERCE
We find that the questions concerning representation which have
arisen, occurring in connection with the operations of the Companies
described in Section I above, 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 APPROPRIATE UNIT
Western.-At the hearing it was agreed by both Local No. 21173
and Local No. 17 that all employees of Western engaged in handling,
processing, and canning fish, including warehousing of finished
1 See Matter of American France Line et at. and International Seamen 's Union of Amer.
,ca, 3 N. L. R. B. 64; Matter of Unit Cast Corporation and Steel Workers Organizing Com-
mittee, 7 N. L. R. B. 129; Matter of White Sewing Machine Corporation and United
Electrical Radio and Machine Workers of America, Local 721 (C. I. 0.), 10 N. L. R. B. 802.
368 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
products, excluding executives, office employees, machinists, and ma-
chinists' helpers,2 constitute a unit appropriate for the purposes of
collective bargaining. The exact meaning of the term "executives"
is not clear from the record. We think it was the intention that
supervisory employees should be considered within this category, and
we shall accordingly exclude them.
Local No. 21173 contends that the timekeeper employed by Western
is included within the unit so agreed upon, whereas Local No. 17
considers him an office employee and thereby excluded. It appears
that by far the greater part of his working time is spent in the office.
Although he does not have authority to hire and discharge, it is his.
duty to call and have on hand sufficient employees to handle each day's
work, the number necessary varying greatly according to the supply
of fish available. In view of the nature of his work and his relation-
ship to the other employees of Western, ' we find that he should be
excluded from the unit.
We find that all employees of Western engaged in handling, pro-
cessing, and canning fish, including warehousing of finished products,
excluding executives, supervisory employees, office employees, ma-
chinists, machinists' helpers, and the timekeper, constitute a unit ap-
propriate for the purposes of collective bargaining and that said unit
will insure to the employees of Western the full benefit of their right
to self-organization and to collective bargaining and otherwise ef-
fectuate the policies of the Act.
Fisherman's.-At the hearing Local No. 21173 and Local No. 17
agreed that the unit appropriate for the purposes of collective bar-
gaining with Fisherman's consists of all cannery and warehouse em-
ployees, excluding supervisory employees, office employees, machinists,
machinists' helpers, and carpenters.
In its brief, Local No. 21173 contends that the "matron" employed
by Fisherman's, Dorothy Kraywinkle, should be excluded from the
appropriate unit. Like the timekeeper at Western, it is one of her
duties to call employees to work when they are needed; but a list of
those to be called is furnished to her by the management, a fact which
does not appear in the case of Western's timekeeper. She does not
do any office or secretarial work. Her principal duties consist of
taking care of the uniforms worn by the employees and administering
first. aid to any who may be injured. We are of the opinion that the
matron should be included within the appropriate unit.
We find that all cannery and warehouse employees of Fisherman's
including the matron, but excluding supervisory employees, office
2 The agreement as to the appropriate , unit was arrived at by reference to the petition
which excluded "mechanics, who belong to the Machinists Union, A. F. of L." Under all
the circumstances it appears that it was thereby intended to exclude the machinists and
machinists ' helpers in western's employ.
WESTERN FISHERIES 369
employees , machinists , machinists ' helpers, and carpenters , constitute
a unit appropriate for the purposes of collective bargaining and that
said unit will insure to the employees of Fisherman 's the full benefit
of their right to self -organization and to collective bargaining and
otherwise effectuate the policies of the Act.
VI. THE DETERMINATION OF REPRESENTATIVES
For the purpose of showing substantial membership among the em-
ployees of both Companies, Local No. 17 introduced into evidence a
number of membership application cards. Local No. 21173 claimed,
but made no proof of, substantial membership among the employees.
We find that the questions concerning representation which have
arisen can best be resolved by means of elections by secret ballot.
At the hearings, it was agreed by the parties that, should the Board
direct an election among the employees of Fisherman's, the pay roll
for the 1939 season should be used to determine eligibility to partici-
pate therein. With respect to Western, Local No. 2'1173 requested that
the employees on both the 1937 and 1939 pay rolls be permitted to vote.
As stated above, Western's plant was not operated during the 1938
season . In view of the lapse of time, we believe that the employees
who worked for Western during the 1937 season and who do not appear
on the 1939 pay roll do not have a sufficient interest in wages, hours of
employment, and other conditions of employment at Western to entitle
them to participate in the election. No valid reason appears why the
1939 pay rolls should not be the basis for determining eligibility in
both elections.
. Issued simultaneously herewith are a Decision and Direction of
Elections in proceedings involving the employees of three other com-
panies engaged in the salmon canning industry at Anacortes, Wash-
ington.3 The records in those proceedings disclose and the Board has
found that employees in the industry in the Anacortes area shift from
one company to another during the course of the season, as the opera-
tions of the various companies fluctuate. This finding is supported
by comparison of the pay rolls introduced into evidence in the instant
proceedings with each other and with those of the companies involved
in the cited decision. As we said in the cited decision, we believe that
an employee should be allowed to vote in only one of the elections.
We shall accordingly adopt the standards of eligibility used in the
cited'decision. Each employee shall participate with the employees of
the company 4 which employed him for the greatest number of days
. 8 Matter o f Sebastian ,Stuart Fish Co., a corpn . and Cannery Workers Union, Local 21173,
A. F. of L. Case No. R.-1446; Matter of Farwest Fishermen, Inc., a corpn. and Cannery
Workers Union, Local 21173, A. F. of L. Case No. R-1447; Matter of Anacortes Canning
Co., a corpn . and Cannery Workers Union, Local 21173, A. F. of L. Case No. R-1448.
' Sebastian Stuart Fish Co., Farwest Fishermen , Inc., Anacortes Canning Co ., western
Fisheries , or Fisherman's Packing Corp. ,
370 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
during the 1939 season ; provided, that in the event that an employee
has worked for the same number of days for two or more of the com-
panies , he shall participate with the employees of that one of such
companies which last employed him. Any period of time described
above shall be computed by days; the number of hours of employment
per day shall not be considered.5
No employee shall be eligible to participate with the employees of
any company whose employment he has quit or from which he has
been discharged for cause. However, in the event that any employee
shall have quit or been discharged for cause by any one or more of
the companies, his employment by such company or companies shall
not be considered in determining his eligibility to participate with the
employees of any other company for which he may have worked during
the 1939 season.
Upon the basis of the above findings of fact and upon the entire
records in the cases, the Board makes the following :
CONCLusIONs of LAW
1. Questions affecting commerce have arisen concerning the repre-
sentation of employees of Western Fisheries and Fisherman's Packing
Corp., respectively, Anacortes, Washington, within the meaning of
Section 9 (c) and Section 2 (6) and (7) of the Act.
2. All employees of Western Fisheries engaged in handling, proc-
essing, and canning fish, including warehousing of finished products,
excluding executives, supervisory employees, office employees, ma-
chinists, machinists' helpers, and the timekeeper, constitute a unit ap-
propriate for the purposes of collective bargaining within the meaning
of Section 9 (b) of the Act.
3. All cannery and warehouse employees of Fisherman's Packing
Corp., including the matron, but excluding supervisory employees,
office employees, machinists, machinists' helpers, and carpenters, con-
stitute a unit appropriate for the purposes of collective bargaining
within the meaning of Section 9 (b) of the Act.
DIRECTION OF ELECTIONS
By virtue of and pursuant to the power vested in the National La-
bor Relations Board, by Section 9 (c) of the National Labor Relations
Act, and pursuant to Article III, Section 8, of National Labor Re-
lations Board Rules and Regulations-Series 2, it is hereby
DIRECTED that, as part of the investigation authorized by the Board
to ascertain representatives for the purposes of collective bargaining
5 See Matter of F. B. Booth & Company, et at. and Monterey Bay Area Fish Workers
Union No. 23, 10 N. L . R. B. 1491.
WESTERN FISHERIES 371
with Western Fisheries, Anacortes, Washington, 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 su-
pervision 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, Section 9, of said Rules and Regulations, and
in accordance with the standards set forth in Section VI of the above
Decision, among all employees of Western Fisheries engaged in
handling, processing, and canning fish, including warehousing of
finished products, excluding executives, supervisory employees, office
employees, machinists, machinists' helpers, and the timekeeper, to de-
termine whether they desire to be represented by Cannery Workers
Union, Local 21173, A. F. of L., or by Anacortes Cannery Workers
Union Local 17, C. I. 0., for the purpose of collective bargaining, or
by neither; and it is further
DIRECTED that, as part of the investigation authorized by the Board
to ascertain representatives for the purposes of collective bargaining
with Fisherman's Packing Corp., Anacortes, Washington, 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 di-
rection and supervision of the Regional Director for the Nineteenth
Region, acting in this matter as agent for the National Labor Re-
lations Board and subject to Article III, Section 9, of said Rules and
Regulations, and in accordance with the standards set forth in Section.
VI of the above Decision, among all cannery and warehouse employees
of Fisherman's Packing Corp., including the matron, but excluding
supervisory employees, office employees, machinists, machinists' help-
ers, and carpenters, to determine whether they desire to be represented
by Cannery Workers Union, Local #21173, or by Anacortes Cannery
Workers Union Local 17, C. I. 0., for the purposes of collective bar-
gaining, or by neither.