Westgate Sea Products Co.

National Labor Relations Board - Board Decisions

Apr 22, 1940

23 N.L.R.B. 49 (N.L.R.B. 1940)

In the Matter Of WESTGATE SEA PRODUCTS COMPANY and UNITED
FISH CANNERY WORKERS' UNION, LOCAL #64, C. I. O.
Case No. R-1757.-Decided April 22, 1940
Fish Canning Industry-lilq,estulatiorc of Representatives: petition for in-
Testigatron and certification dismissed. where no substantial question concerning
representation of employees had arisen : existing written collective agreement
between employer and intervening union entered into upon basis of consent
election result; showing of representation by petitioning union not sufficient
to warrant holding election to ascertain representatives.
Mr. Alba B. Martin, for the Board.
Mr. 1,17 . Wade Ambrose, of San Diego, Calif ., for the Company.
Mr. 7'. R . Rasmussen , of San Diego, Calif ., for the C. I. O. Union.
Mr. Marshall Ross and Mr. A. M. Petersen, of Los Angeles, Calif.,
for the A. F. of L . Union.
Mr. Bernard W. Freund, of counsel to the Board.
DECISION
AND
ORDER
STATEMENT OF 'IHE CASE
On December 13, 1939, United Fish Cannery Workers' Union,
Local #64, United Cannery, Agricultural, Packing & Allied Work-
ers of America, C. I. 0., herein called the C. I. O. Union,l filed with
the Regional Director for the Twenty-first Region (Los Angeles,
California) a petition alleging that a question affecting commerce
had arisen concerning the representation of employees of Westgate
Sea Products Company, San Diego, California, herein called the
Company, and requesting an investigation and certification of rep-
resentatives pursuant to Section 9 (c) of the National Labor Rela-
tions Act, 49 Stat. 449, herein called the Act. On February 20, 1940,
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, as
amended, ordered an investigation and authorized the Regional Di-
'Designated in the petition as United Fish Cannerv workers ' Union, Local #64,
UCAPAWA, C. I O. The record shows that UUC4PAWA is an abbreviation for United
Cannery , Agricultural , Packing & killed workers of America
23 N L R B, No 3.
49
50 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
rector to conduct it and to provide for an appropriate hearing upon
due notice. On March 5, 1940, the Regional Director issued a notice
of hearing, copies of which were duly served upon the Company and
the C. I. O. Union, and upon Fish Cannery Workers' Union of the
Pacific, San Diego Branch, affiliated with the Seafarers' International
Union of North America, affiliated with the American Federation of
Labor, herein called the A. F. of L. Union, a Libor organization
claiming to represent employees directly affected by the investigation.
Pursuant to notice, a hearing was held on March 11, 1940, at San
Diego, California, before William B. Barton, the Trial Examiner
duly designated by the Board. The Board was represented by coun-
sel, the Company by its president, the C. I. O. Union by a representa-
tive, and the A. F. of L. Union by counsel and by a representative.'
All participated in the hearing and were afforded full opportu-
nity to be heard, to examine and cross-examine witnesses, and to.
introduce evidence bearing on the issues. 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
the rulings of the Trial txaminer, and finds that no prejudicial
errors were committed. The rulings are hereby affirmed.
At the hearing the A. F. of L. Union moved to dismiss the petition
on the ground that no question concerning representation was shown
to exist in view of the existence of a contract between the Company
and the A. F. of L. Union, and in view of the failure of the C. I. O.
Union to establish that a substantial number of employees in the unit
alleged to be appropriate had indicated their desire to be represented
by the C. I. O. Union for the purpose of collective bargaining. The
Trial Examiner did not rule upon the motion to dismiss, but reserved
the matter for decision by the Board. For the reasons stated below,
the motion is granted.
Upon the entire record in the case, the Board makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
Westgate Sea Products Company, San Diego, California, a Cali-
fornia corporation , is engaged in the purchase, canning, and sale of
tuna fish, mackerel , and sardines, and in the manufacture and sale of
fish meal and fish oil . The fish used by the Company in its business
are purchased from fishermen , who catch the fish in California waters
and in waters outside the territorial limits of the United States.
z Copies of the notice of hearing were also served upon Central Labor Council and
L A. Industrial Union Council, both of Los Angeles, California Neither of these organiza-
tions appeared
WESTGATE SEA PRODUCTS COMPANY 51
Purchases of fish by the Company in 1938 and 1939 amounted to
approximately $830,000 and $1,992,357, respectively , of which approxi-
mately 80 per cent in 1938, and a slightly smaller proportion in 1939,
were caught in extra-territorial waters . The Company's gross in-
come from sales of its products in foreign countries and States other
than. California, amounted. in. 1938 to approximately 92 per cent, and
in 1939 to 96 per cent , of its total gross sales income , which aggregated
in those years $1,890,000 and $2,000,000, respectively.
II. THE ORGANIZATIONS INVOLVED
United Fish Cannery Workers ' Union, Local #64, United Canning,
Agricultural , Packing & Allied Workers of America, C. I. 0., and
Fish Cannery Workers' Union of the Pacific, San Diego Branch,
affiliated with the Seafarers ' International Union of North America,
affiliated with the American Federation of Labor, are labor organiza-
tions. Both admit to membership all production and maintenance
employees of-the Company ,' with the ' exception of office and-supervi-
sory employees , employees having the power to hire and discharge,
and employees specifically given the duty of recommending hire and
discharge.
HI. THE ALLEGED QUESTION CONCERNING REPRESENTATION
In November 1937 a consent election ' was conducted by the
Regional Director among the Company's production employees. Of
427 eligible , 276 employees voted; the A. F. of L. Union received
158 votes , the C. I. O. Union 112 votes, and 6 votes were void or
challenged . On February 9, 1938, the Company and the A. F. of L.
Union - entered into a collective_ agreement for 1 year with respect
to the wages, hours , and other terms and conditions of employment
of all the employees at the Company 's plant except executives, office
employees, and employees not eligible for membership in the A. F.
of L. Union. The agreement provided that the Company would give
preference to members of the A . F. of L . Union, where qualifications
were equal , in filling job vacancies and selecting crews; that non-
members of the A. F. of L . Union must apply for membership therein
within 2 weeks of employment ; and that no employee would be re-
quired to work with any employee not an applicant for membership
in the A. F. of L . Union, or not a member in good standing.
The agreement entered into on February 9, 1938, provided that
it be extended for a further year, until February 8, 1940, unless either
party gave notice 30 days prior to January 1, 1939 "of a desire to
modify . . . and that the terms of such Agreement shall not be
extended"; and further provided that it should thereafter be extended
from year to year unless such notice vas given 30 days prior to
52 DECISIONS OF NAI101NAL LABOR RELATIONS BOARD
December 1 of any year . No notice was given by the A. F. of L.
Union or the Company on or before the first terminal date. On
January 26 , 1939, after the agreement had by its terms been extended
until February 8, 1940, the C. I. O. Union wrote to the Company
claiming that it represented a majority of the Company 's employees;
and requesting recognition . The Company replied on January 30,
1939, refusing this request for the stated reasons that its contract
with the A. F. of L . Union would not expire until 1940, and that
a majority of its employees were members of the latter organization.
On February 9, 1939, the C. I. O. Union filed with the Regional
Director a petition for investigation and certification of representa-
tives of the Company's employees . Thereafter , this petition was
withdrawn without prejudice by the C. I. O. Union, with the Board's
permission.
On October 27, 1939, in a letter to the Company , the C. I. O.
Union renewed its claim that it represented a majority of the Com-
pany's employees , advised the Company not to extend its agreement
with the A . F. of L . Union beyond the current expiration date, and
requested that negotiations be commenced for a contract between the
Company and the C . I. O. Union. On November 14, 1939, the Com-
pany, at a meeting with the C. I. O. Union , refused to enter into
negotiations with the latter on the grounds that it was under contract
to the A. F. of L . Union and that it had no proof of the C. I. O.
Union's alleged majority status . On December 13, 1939, the C. I. O.
Union filed the petition instituting the instant case, upon which the
hearing was held on March 11, 1940. Meanwhile neither the Coin-
pany nor the A. F. of L. Union gave the notice of termination
specified in their agreement , and the agreement by its terms , there-
fore, became automatically extended until February 8, 1941. Both
the Company and the A. F. of L. Union asserted at the hearing that
the agreement was in force . In fact several disputes as to its ap-
plication had arisen and had been settled by them after February 9,
1940, the renewal date; and, at the time of the hearing , negotiations
between the parties with respect to the interpretation of the overtime
provisions of the agreement were in progress.
At the hearing, a copy of the Company's pay roll for the week
ending December 30, 1939, which the president of the Company tes-
tified was the peak pay-roll period for the past year, was admitted
in evidence . Records of the A. F. of L. Union were produced, con-
sisting of cards which , according to the testimony of its secretary-
treasurer, bore the names of employees of the Company who are
members of the A . F. of L . Union; and lists of names, identified by
this witness as compilations from the cards , were admitted in evi-
dence without objection. The authenticity of the records and the
WESTGATE SEA PRODUCTS COMPANY 53
accuracy of the lists were not questioned. A check of the lists against
the Company's pay roll discloses that, of the approximately 331 per-
sons in the appropriate unit 3 who were employed during the week
ending December 30, 1939, approximately 249 were members of the
A. F. of L. Union on November 1, 1939, 260 on December 30, 1939,'
and 272 at the time of the hearing. The names of approximately 45
employees not appearing on the pay roll are also contained in the
lists, of whom the membership of the A. F. of L. Union included
approximately 42 on November 1, 1939, 43 on December 30, 1939,
and 45 at the time of the hearing.
At the hearing the C. I. 0. Union took the position that it would
not disclose the names of its members upon the record because the
Company at the instance of the A. F. of L. Union had discharged
employees not in good standing in the latter organization. Nor did
the C. I. 0. Union offer to make any of its records available to the
agents of the Board for a comparison with the Company's pay roll
in evidence. Instead, to support its representation claim, the C. I. 0.
Union relied upon the testimony of its secretary-treasurer and its
local organizer that it had about 160 members employed at the Com-
pany's plant on November 1, 1939, and about 194 at the time of the
hearing. However, their testimony does not disclose when this num-
ber were "signed up," except that the signatures were obtained be-
ginning in November 1938, more than a year before the petition was
filed. Moreover, approximately 45 or 55 of them were "signed up,"
according to the testimony, by volunteer organizers and neither
witness indicated any personal knowledge as to the employment of
these members by the Company. Furthermore, it appears from testi-
mony of both witnesses that for the most part their statements as
to the employment of members by the Company were based solely
upon what they had been told by the members.5
We are of the opinion that, under all the circumstances of this
case, the showing of representation by the C. I. 0. Union is
not sufficient to warrant our holding
representatives.
an election to ascertain
3 The Company and the unions involved were in agreement as to the appropriate unit,
but the unions differed as to whether five named employees came within a classification
of employees exc:uded from the unit agreed upon For purposes of the tabulation in the
text, we have counted these five employees as included in the unit
4 The secretary- treasurer of the A F. of L Union testified that the names of approxi-
mately 30 to 40 members Rho left the Company's employ between November 1, 1939,
and the time of the hearing were cmitted from the records produced at the heating and
from the membership lists in eudence Tcere is no e\ idence as to how many of these
employees i+orked during the week ending December 30, 19:39
BCf Matter of General Electric Company and The G. E Industrial Union of The
Itrmdgepoi t Works, Incorporated, 15 N L It B 1018
283034---41-vol 23-5
54 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
We find that no question concerning the representation of em-
ployees of the Company exists. Accordingly, the petition of the
C. I. O. Union will be dismissed.
CONCLUSION OF LAW
No question concerning the representation of employees of West-
gate Sea Products Company, San Diego, California, exists within
the meaning of Section 9 (c) of the National Labor Relations Act.
ORDER
Upon the basis of the foregoing findings of fact and conclusion of
law, the National Labor Relations Board hereby dismisses the pe-
tition for investigation and certification filed by the United Fish
Cannery Workers' Union, Local #64, United Canning, Agricultural,
Packing & Allied Workers of America, C. I. O.