Basic Vegetable Products, Inc.

In the Matter of BASIC VEGETABLE PRODUCTS, INC. and FOOD, TOBACCO, AGRICULTURAL & ALLIED WORKERS UNION OF AMERICA, C. I. 0. and INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA, A. F. OF L., AND CALI- FORNIA STATE COUNCIL OF CANNERY UNIONS, A. F. OF L., AND SOLANO COUNTY BUILDING AND CONSTRUCTION TRADES COUNCIL, A. F. OF L., PARTIES TO THE CONTRACTS Case No. 20-C-1452.-Decided January 15, 1948 Mr. Charles Y. Latimer, for the Board. Mr. J. Paul St. Sure, of Oakland, Calif., for the respondent. Mrs. Pat Verble, of Sacramento, Calif., for the C. I. 0. Tobriner & Lazarus, by Mr. Matthew 0. Tobriner, of San Francisco, Calif., for the Teamsters and California State Council of Cannery Unions, A. F. of L., parties to the contracts. Messrs. Clarence E. Todd and Gordon T47. Mallatratt, of San Fran- cisco, Calif., for the Building Trades, party to the contract. DECISION AND ORDER On October 30, 1946, Trial Examiner Martin S. Bennett issued his Intermediate Report in the above-entitled proceeding, finding that the respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Inter- mediate Report attached hereto. The Trial Examiner also found that the respondent had not engaged in certain other alleged unfair labor practices and recommended that the complaint be dismissed with respect to such allegations. Thereafter, the respondent, the Teamsters and California State Council of Cannery Unions, the Building Trades, and the C. I. 0. filed exceptions to the Intermediate Report, and the A. F. of L. and the Building Trades filed supporting briefs. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Inter- mediate Report, all of the exceptions and briefs filed herein by the 75 N. L. R. B., No. 102. 815 816 ' DECISIONS OF NATIONAL LABOR RELATIONS BOARD parties, and the entire record in the case, and hereby adopts the find- ings, conclusions, and recommendations of the Trial Examiner, with the modifications and additions hereinafter set forth., 1. The Trial Examiner found that the respondent violated Section 8 (1) of the Act 2 by executing collective bargaining agreements with Local 474 and the Building Trades in April or May 1946 in the face of representation proceedings pending before the Board and by admit- tedly granting access to the company premises to the contracting unions while denying such access to all other labor organizations. We agree, for the following reasons : In Hatter of Flotill Products, Inc.," the Board found that "it is es- tablished as a matter of fundamental law under the Act that the Board is under a statutory obligation to protect the right of employees to a free choice of a bargaining, representative in an uncoerced election and that the infringement of this right by an employer constitutes a clear violation of the Act." The Board further found that the re- spondent concerned in that case violated such right of its employees and thereby violated Section 8 (1) of the Act, by executing an exclu- sive bargaining contract with one of two rival unions, knowing that a proceeding was then pending before the Board to determine the em- ployees' representatives for collective bargaining and that there ex- isted a real question as to whether the contracting union then repre- sented a majority of the employees in an appropriate bargaining unit. The situation in the instant case closely resembles that which con- fronted the Board in the Flo till case. Here, the respondent executed the 1946 contracts with Local 474 and the Building Trades,' knowing that a rival union claimed to represent a majority of the employees covered by those agreements, and in the face of a current Board deter- mination that a representation question existed as regards those em- ployees. The respondent thereby arrogated to itself the determination of the representation question and encouraged membership in, and rendered unlawful assistance to, the contracting unions. Such conduct I The Intermediate Report mistakingly states at page 823 that during the summer of 1945 a petition alleging the existence of a question concerning the representation of the respond- ent's employees was filed with the Board by the C I 0 This petition was filed by the Cannery & Food Process Workers Council of the Pacific Coast 2 Those provisions of Section 8 (1) of the National Labor Relations Act, which the Trial Examiner herein found were violated, are reenacted in Section 8 (a) (1) of the Labor Management Relations Act, 1947 3 70 N L R B 119 , 120 See also Matter of Lincoln Packing Co.. 70 N . L. R. B 335; Matter of U W flume Co, 71 N. L R B 533 4 we agree with the Trial Examiner , despite the contention of the respondent and the A F of L unions to the contrary , that new agreements were consummated in 1940 between the respondent and Local 474 and the Building Trades It ' is clear that the notices to amend the 1944 maintenance contract and the 1945 production workers contract operated, under the terms of those agreements , to terminate them The agreements which the parties have stipulated and are currently being honored by the respondent and Local 474 and by the respondent and the Building Trades , and which contain new wage provisions, there- fore, must be considered to have been newly executed by the parties thereto , and we so find. BASIC VEGETABLE PRODUCTS, INC. 817 constituted unlawful interference with the right of the respondent's employees freely to select their bargaining representatives and, there- fore, contravened Section 8 (1) of the Act. The respondent contends that, even if it be found that new bargain- ing agreements were executed by it in 1946, nevertheless its action in doing so was not unlawful under the Act because no question con- cerning the representation of its employees actually existed at that time. In support of this contention, the respondent maintains that when the Board originally found that a representation question existed 5 it did not have before it certain evidence concerning the respondent's 'bargaining history, in the light of which it might have concluded that no representation question had arisen with respect to these employees. The respondent does not contend that the Board's decision in that case was erroneous on the record then before it, nor does it claim that it did not have full opportunity at the original hearing to introduce the evidence to which it now refers or that such evidence was then unavailable to it. In fact, the record shows that the respondent did have full opportunity to present such evidence, for it appears that the respondent was similarly represented in the repre- sentation hearing and in the proceeding presently before us and that the respondent itself raised the production workers' contract as a bar to a determination of representatives in the original hearing. The respondent, therefore, cannot now be heard to defend its unlawful actions on the ground that, on a different record, the Board may have reached a different conclusion with respect to the representation ques- tion. We conclude, therefore, as did the Trial Examiner, that by its conduct above set forth, the respondent interfered with, restrained, and coerced its employees in violation of Section 8 (1) of the Act.6 2. We also agree with the Trial Examiner that the respondent dis- charged Carleton W. Hersey and Ernest E. Hankins on April 6, 1946, pursuant to a valid closed-shop contract with the Building Trades, without knowledge or good reason to believe that these employees had been expelled by the Building Trades and their discharges requested under the contract because of their C. I. O. activities. On November 27, 1946, almost a month after the Trial Examiner issued his Intermediate Report in the instant case, the C. I. O. filed with the Board a motion to reopen the record in this proceeding to receive further evidence before a Trial Examiner concerning the respondent's knowledge of the reasons for the requested discharges.-, Matter of Bercut Richards Packing Company , et al , 64 N L R B 133, 137 s In this state of the record we find it unnecessary to determine whether the respondent also violated Section 8 (1) of the Act by entering into exclusive bargaining agreements covering inappropriate units 7 An answer in opposition to this motion was filed-with the Board on December 9, 1946, by the Teamsters and the California State Council of Cannery Unions , A. F of L. 818 DECISIONS OF NATIONAL LABOR RELATIONS BOARD In support of its motion, the C. I. O. alleged in part that it was not represented by counsel at the hearing herein and that certain relevant evidence, tending to show that the respondent was aware when it discharged Hersey and Hankins that the real reason therefor was dual-unionism, was not introduced at the hearing. We note, how- ever, that the C. I. O. was in fact represented at the hearing by a C. I. O. representative, and the C. I. 0. does not contend, nor does the record disclose, that it sought postponement of the hearing because it was unable to have legal counsel present or that it was otherwise prevented from being represented by counsel. Moreover, the C. I. O. admits that the evidence now sought to be included in the record was within its knowledge and available to it at the time of the hearing, and no sufficient reason is given by it for failing to introduce such evidence at that time. The C. I. O.'s motion to reopen the record, therefore, is hereby denied. Accordingly, we shall dismiss the 8 (3) allegations in the complaint. ORDER Upon the entire record in the case, and pursuant to Section 10 (c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the respondent, Basic Vegetable Products, Inc., Vacaville, California, and its officers, agents, successors, -and assigns shall: 1. Cease and desist from : (a) Recognizing Dehydration and Food Process Workers Local Union 474, A. F. of L., and Solano County Building and Construction Trades Council, A. F. of L., or any other labor organization which are affiliates thereof, as the exclusive representative of any of its em- ployees for the purposes of collective bargaining unless and until said organizations, or either of them or their affiliates, shall have been certified by the National Labor Relations Board as the exclusive representative of such employees; (b) Giving effect to its contracts with Dehydration and Food Process Workers Local Union 474, A. F. of L., and Solano County Building and Construction Trades Council, A. F. of L., or to any extension, renewal, modification, or supplement thereof, or to any superseding contract with these labor organizations or any other labor organizations or affiliates thereof, unless and until said organizations or any of them shall have been certified by the Board as the representa- tive of the employees in its Vacaville plant; (c) In any like or related manner interfering with, restraining, or coercing its employees in the exercise of the right to self-organization, to form labor organizations, to join or assist Food, Tobacco, Agri- cultural & Allied Workers Union of America, C. I. 0., or any other BASIC VEGETABLE PRODUCTS, INC. 819 labor organization, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the pur- poses of collective bargaining or other mutual aid or protection, as guaranteed in Section 7 of the Act, as amended. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act, as amended : (a) Withdraw and withhold all recognition of Dehydration and Food Process Workers Local Union 474, A. F. of -L., and Solano County Building and Construction Trades Council, A. F. of L., or any other labor organizations which are affiliates thereof, as the exeelusive representative of any employees in its Vacaville plant, for the purposes of collective bargaining with respect to rates of pay, wages, hours of employment, or other conditions of employment, unless and until said organizations, or either of them, or any affiliate thereof, shall have been certified by the National Labor Relations Board as the repre- sentatives of such employees ; (b) Post at its plant at Vacaville, California, copies of the notice attached hereto and marked "Appendix A."' 11 Copies of said notice, to be furnished by the Regional Director for the Twentieth Region, shall, after being duly signed by the respondent's representative, be posted by the respondent immediately upon receipt l•hereof, and main- tained by it for sixty (60) consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the respondent to insure that said notices are not altered, defaced, or covered by other material ; (c) Notify the Regionial Director for the Twentieth Region in writing, within ten (10) clays from the date of this Order, what steps the respondent has taken to comply herewith. IT IS FURTHER ORDERED that the complaint, insofar as it alleges that the respondent (1) discriminatorily discharged Carleton W. Hersey and Ernest E. Hankins, and (2) unlawfully interfered with, re- strained, and coerced its employees by making certain statements and granting privileges favorable to and in support of the A. F. of L. and against-the C. I. 0., prior to the termination in April 1946 of the then existing contracts, be, and it hereby is, dismissed. APPENDIX A NOTICE To ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board, and- in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify our employees that: 8In the event that this Order is enforced by decree of a Circuit Court of Appeals, there shall be inserted in the notice, before the words "A DECISION AND ORDER," the words "A DECREE OF THE UNITED STATES CIRCUIT COURT OF APPEALS ENFORCING" 766972-48-col 73-53 820 DECISIONS OF NATIONAL LABOR RELATIONS BOARD WE WILL NOT recognize Dehydration and Food Process Workers Local Union 474, A. F. of L., and Solano County Building and Construction Trades Council, A. F. of L., or any other labor organizations Which are affiliates thereof, as the exclusive repre- sentative of any of our employees in our Vacaville plant, for the purposes of collective bargaining,' unless and until said organiza- tions or either of them, or their affiliates, shall have been certified by the National Labor Relations Board as the representative of such employees. WE WILL NOT give effect to our contracts with Dehydration and Food Process Workers Local Union 474, A. F. of L., and Solano County Building and Construction Trades Council, A. F. of L., or to any extension, renewal, modification or supplement thereof, or to any superseding contract with said labor organizations, or either of them, unless and until said organizations, or either of them, shall have been certified by the Board as the representative of the employees in our Vacaville plant. WE WILL NOT in any like or related manner interfere with, re- strain, or coerce our employees in the exercise of their right to self-organization, to form labor organizations, to join or assist Food, Tobacco, Agricultural & Allied Workers Union of Amer- ica, C. I. 0., or any other labor organization, to bargain collec- tively through representatives of their own choosing, and to en- gage in concerted activities for the purposes of collective bar- gaining or other mutual aid or protection. All our employees are free to become or remain members of Food, Tobacco, Agricultural & Allied Workers Union of America, C. I. 0., or any other labor organization. BASIC VEGETABLES PRODUCTS, INC., Employer. Dated ----------------- By------------------------------------ (Representative ) (Title) This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. INTERMEDIATE REPORT Mr. Charles Y. Latimer, for the Board. Mr. J. Paul St. Sure, of Oakland, Calif., for the respondent. Mrs. Pat Verble, of Sacramento, Calif., for the C. I. 0. Tobriner & Lazarus , by Mr Matthew 0. Tobriner , of San Francisco, Calif., for the Teamsters and California State Council of Cannery Unions, A. F. ^ of L., parties to the contracts. Messrs. Clarence E. Todd, and Gordon W. Mallatratt , of San Francisco, Calif., for Solano County Building and Construction Trades Council , A. F. of L., party to the contract. BASIC VEGETABLE PRODUCTS, INC. 821 STATEMENT OF THE CASE Upon a first amended charge duly filed on July 26, 1946,' by Food, Tobacco, Agricultural & Allied Workers Union of America, C. I. 0, herein called the C. I. 0, the National Labor Relations Board, herein called the Board, by its Regional Director for the Twentieth Region (San Francisco, California), issued its complaint dated July 29, 1946, against Basic Vegetable Products, Inc.,' herein called the respondent, alleging that respondent had engaged in and was en- gaging 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 Rela- tions Act, 49 Stat. 449, herein called the Act. Copies of the complaint and notice- of hearing were duly served upon respondent, C. I. 0., and upon three affiliates- of the American Federation of Labor,' International Brotherhood of Teamsters,. Chauffeurs, Warehousemen and Helpers of America, herein called Teamsters, California State Council of Cannery Unions, and Solano County Building and' Construction Trades Council, the latter herein called Building Trades, parties to the contract, and also upon a fourth A. F. of L. affiliate, Cannery Workers, Union No. 474, herein called Local 474' With respect to the unfair labor practices, the complaint alleged, in substance, that respondent: (1) urged, persuaded, and warned its employees to vote in favor of the A. F., of L, and not in favor of the C. I. 0, in a collective bargaining election conducted by the Board among the employees of respondent on October 16, 1945; (2) urged, persuaded, and warned its employees not to become or remain members of the C. I. 0., and demanded that they become and remain. members of the A. F. of L, upon penalty of discharge; (3) granted access to, its plant to representatives of the A. F of L, permitted A F. of L. meetings on company property and the collection of A. F. of L dues on respondent's. parking lot, delegated to the A. F. of L authority to select employees and to notify them when to report to work, and dealt with and recognized the A. F. of L. as the representative of its employees. while refusing to grant the same rights to the C. I. 0 ; (4) forbade discussion of and solicitation for the C. I. O. on respondent's property during non-working periods, while permitting this in be- half of the A. F. of L.; (5) discharged Harry N McGinnis on or about January 3, 1946, and Carleton W. Hersey and Ernest E. Hankins, on or about April 6, 1946, because of their activities in behalf of the C. I. 0. and because they failed to become or remain members of the A F. of L, and has at all times thereafter refused to reinstate them; (6) during the pendency of a question of representa- tion executed collective bargaining agreements for inappropriate units with the A. F. of L., despite a provision in the Supplemental Decision and Order of the Board in the Bercut-Richards decision, dated February 15, 1946, providing that respondent should grant exclusive representation to neither the C. I. 0. nor the A. F. of L.; and (7) by the aforesaid acts has engaged in and is engaging ill unfair labor practices within the meaning of Section 8 (1) and (3) of the Act. Pursuant to notice, a hearing was held on August 12 and 13, 1946, at Vacaville, California, before Martin S. Bennett, the undersigned Trial Examiner, duly designated by the Chief Trial Examiner. The Board, respondent, Teamsters, ' The original charge was filed on April 15, 1946. 2 The name of respondent was so amended at the hearing upon motion by counsel for respondent. Respondent, which had been a partnership , was incorporated , on or about April 1, 1946, as a California corporation . No question was raised with respectjto service of the respondent. 8 The A. F. of L. affiliates herein involved are jointly referred to as A. F. of L * The correct name is Dehydration and Food Process Workers Local Union 474 , A. F of L_ 822 DECISIONS OF NATIONAL LABOR RELATIONS BOARD California State Council of Cannery Unions, and Building Trades were repre- sented by counsel, and the C. I 0. by its representative. Full opportunity was afforded all parties to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing upon the issues. At the opening of the hearing, respondent filed an answer wherein it denied the commission of any unfair labor practices. The answer further alleged affirmatively, that the discharges alleged in the complaint resulted from the obligations of respondent under collective bargaining agreements with the A. F. of L, and that the Board was without authority to make the above mentioned provision in its decision of February 15, 1946.° Counsel for the Teamsters and Building Trades also filed an answer wherein they (1) moved to dismiss the complaint on the ground that it was ambiguous and uncertain; (2) denied the commission by respondent of any unfair labor practices and (3) alleged that respondent was obligated to bargain with the A. F of L as the exclusive bargaining representative of its employees This anwer was also accompanied by a separate motion to dismiss the complaint which the undersigned denied. At the request of the C. I. 0. and of Harry N. McGinnis, counsel for the Board moved that the complaint be dismissed with respect to said McGinnis ; the motion was granted At the close of the hearing, counsel for respondent and Building Trades moved that the complaint be dis- missed. Ruling was reserved and the motion is disposed of hereinafter. At the conclusion of the hearing, all parties argued orally before the undersigned and were granted leave to submit briefs. Briefs have been received from coun- sel for the Board, respondent, Building Trades, and California State Council of Cannery Unions, A. F. of L Upon the entire record in the case and upon his observation of the witnesses, the undersigned makes the following: FINDINGS OF FACT I THE BUSINESS OF THE RESPONDENT Basic Vegetable Products, Inc., is a California corporation operating a plant at Vacaville, California, where it is engaged in the business of dehydrating onions and garlic.' In the course and conduct of its business; respondent causes in excess of 95 percent of the pioducts of its Vacaville plant, valued in excess of $6,000,000 annually, to be shipped from the plant to points outside the State of California. Respondent admits that it is engaged in commerce within the mean- ing of the Act. - H. THE ORGANIZATIONS INVOLVED Food, Tobacco, Agricultural & Allied Workers Union of America, C I. 0., International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, A. F of L., California State Council of Cannery Unions, A. F. of L., Solano County Building and Construction Trades Council,-A. F. of L, and De- hydration and Food Process Workers Local Union 474, A. F. of L., are labor organizations admitting to membership employees of respondent. 5 This answer also contained a motion to dismiss the complaint which is disposed of hereinafter 5 The business was incorporated on or about April 1 , 1946. At all prior times herein material, respondent consisted of J H Hume and W. H Hume , co-partners , doing business as Basic Vegetable Products Company Respondent admits that there has been no change in the nature of the business subsequent to the incorporation. BASIC VEGETABLE PRODUCTS, INC. 823 111. THE 'UNFAIR LABOR PRACTICES T A. Sequence of events 1. Prior bargaining history The record does not disSlose the bargaining history in respondent's plant prior to 1943. On or about March 18, 1943, a consent election 8 was held among all production and maintenance workers of respondent, excluding supervisory and once personnel, with Cannery Workers Union Local 20324, a Federal Union of the American Federation of Labor, as the only participating union. The union won the election and apparently a contract was entered into during 1943. Some- time thereafter, a separate unit of maintenance *employees was carved out of the larger unit described above and jurisdiction over this smaller unit was re- linquished by Local 20324 to Solano County Building and Construction Trades Council, A F. of L. 2 The 1944 contracts In 1944, respondent entered into two separate collective bargaining agree- ments. It again signed a contract with Local 20324 but for a unit of production workers only, the provisions of which do not appear in the record. Respondent on March 22, 1944, also executed an agreement with Building Trades for a unit of maintenance workers which provided that it would "extend' from the date of signature-to May 15, 1944 and shall continue in effect thereafter unless written notice is given by the Council or the Basic Vegetable Products Co., to change, amend or terminate same." 3. The 1945 contract Respondent and Local 20324 executed, on February 15, 1945, an agreement covering production workers which provided that it would extend to May 15, 1945, and that it would at that time renew itself from year to year unless notice of a desire to amend were filed by either party thereto at least 15 days prior to any May 15. Insofar as the record indicates, there were no contract negotiations between respondent and Building Trades during 1945, and the 1944 contract was in force during that year. 4. The representation petition During the summer of 1945, a representation petition was filed with the Board by the C. I O. which alleged that a question had arisen concerning the repre- sentation of the employees of respondent's Vacaville plant. Other petitions alleging the existence of similar questions were filed with respect to numerous other companies in the same geographical area, some of the other companies being members of California Processors and Growers, Inc, herein called CP & G, and many, like respondent, not being members of this association. Upon an appropriate order of the Board, consolidated hearings were held during July, August, and September of 1945, in which these various companies, including respondent, were represented. On October 5, 1945, the Board issued a telegraphic Order of Direction of Election in the consolidated cases, which was followed by a printed decision issued on October 12, 1945,9 wherein all production and inainte- T Except where otireiwise indicated, the findings herein are based upon admitted facts and uncontroverted testimony which the undersigned credits. Case No. 20-R-780. ° This case has become known as the Bercut-Richards case. 824 DECISIONS OF NATIONAL LABOR RELATIONS BOARD nance workers in respondent's Vacaville plant were found to constitute a unit appropriate for collective bargaining.10 The decision also stated with respect to respondent : 11 This Company contends that its existing contract with Federal Local Union 2238212 is a bar to the proceeding under consideration The contract was executed on February 14, 1945, with an expiration date of May 15, 1945, subject to automatic renewal in the absence of 15 days' notice of modifica- tion prior to the expiration date and also subject to cancelation by either party after May 15, under the notice provision which is substantially the same as that in the CP & G contract hereuiabove referred to. The Company admits receiving prior to May 1, 1945, a communication from the representa- tive of the Federal local requesting negotiations under the automatic renewal provision. The Company contends, however, that no negotiations have taken place and that by reason thereof the contract was automatically renewed. We are of the opinion that the notice was sufficient to prevent automatic re- newal of the contract and inasmuch as by its terms it is now terminable at will, we find that the contract is not a bar to a present determination of representatives. The election was conducted on or about October 16, 194513 The A. F of L. filed objections to all elections held pursuant to the Bercut-Rtchai ds decision, including the election held among respondent's employees. On January 16, 1946, the Regional Director of the Board issued his report on objections to the election, and, on February 15, 1946, the Board issued a "Supplemental Decision and Order" in the consolidated cases, wherein all the elections were vacated and set aside. The Board then anticipated conducting new elections in the near future and stated as follows in its decision : While we view the record as requiring this result, we reach it with con- siderable reluctance because it means that the employees will have no bargaining representative to negotiate an exclusive collective agreement to cover the coming season, until a new election can be held which may result in one of the rival unions being certified. The current AFL contract will expire on March 1, and since the legal effect of the foregoing determina- tion is to keep the question of representation pending before the Board, none of the unions is entitled to an exclusive status as the bargaining agent after to An identical unit was found appropriate for many other employers in the consolidated case. "As will appear below, the findings in that decision with respect to the bargaining his- tory of respondents are at variance with the facts developed with respect thereto at the instant hearing. Among other things, no mention was made of the 1944 contract with Building Trades for maintenance workers The undersigned will, however, except where otherwise indicated, rely upon the record developed by the parties at the instant hearing with respect to respondent's bargaining history ii Although this decision refers to Local 22382, which is not mentioned in the instant proceeding, obviously, in view of the similarity of dates and piovisions, the Board' s decision has reference to the 1945 contract of respondent with Local 20324. 12 The vote was as follows. approximate number of eligible voters------------------------------------- 494 number of valid votes counted-------------------------------------------- 285 votes cast for Calif. State Council of Cannery Unions, A F. of L-------------- 115 votes cast for FTA-C I 0----------------------------------------------- 169 votes cast for Cannery & Food Process Workers Union of Sacramento area, Ind-_ 0 votes cast against participating labor organizations------------------------- 1 challenged ballots------------------------------------------------------- 47 void ballots------------------------------------------------------------ 5 BASIC VEGETABLE PRODUCTS, INC. 825 that date. In accordance with well established principles ," the employers may not pending a new election, give preferential treatment to any of the labor organizations involved, although they may recognize each one as the representative of its members . In this state of the record, no legal effect may be given the closed -shop provision contained in the current collective agree- ments after their expiration date; 1' the inclusion of any provision in any new agreements , or action pursuant thereto, would clearly be contrary to the proviso in Subsection 8 (3). Nothing in our decision , however, should be construed as requiring any change in the substantive conditions of em- ployment now existing by virtue of the foregoing agreements. 11 See Matter of Midwest Piping it Supply Co., Inv, 63 N L R. B. 163. See also Matter of Ken-Rad Tube cC Lamp Corp , 62 N. L. It. B 21. 16 Moreover, no requests for discharges resulting for activity in the election are justi- fied even under the present agreement. See Mattes of Rutland Court Oivneis, 44 N. L R. B 587, 46 N. L R B 1040 5 The chsi-harges; the 1946 contracts As will hereinatter appear in more detail, on or about March 15, 1940, Build- ing Trades requested that respondent dischaige Carleton W Hersey and Er- nest E Hankins, and the discharges were carried out on or about April 6, 1946. On or about April 18, 1946, Building Trades gave notice to respondent of a desire to amend the 1944 contract, and a wage increase of 18 5 cents per hour was shortly thereafter agreed upon. The record does not disclose whether or not another document has actually been signed, but respondent and Building Trades stipulated that they are presently honoring an agreement which is iden- tical with the 1944 contract between them, but for the wage increase. On or about April 27, 1946, Local 20324 gave timely notice to respondent of a desire to amend the 1945 contract, and a wage increase of 18 5 cents per hour was negotiated In addition, at approximately this time, Local 20324 was re- placed by Dehydration and Food Process Workers Local Union No. 474, herein called Local 474.14 Although no contract between respondent and Local 474 was introduced in evidence, they are presently honoring an agreement which is identical with the 1945 contract between respondent and Local 20324, but for the successorship of Local 474 and the wage increase. Ti. The 1946 coots acts - The complaint alleges that respondent on or about May 15i, 1946, executed collective bargaining agreements with 't'eamsters and California State Council of Cannery Unions, A. F of L, covering production workers,' and with Build- ing Trades, covering maintenance employees; that a question of representation was then pending; and that these contracts were executed for inappropriate units In support thereof, it is alleged, as noted above, that the Board in its Direction of Election in the Be) cut-Rtehui ds case, issued October 12, 1945, found that a question had arisen concerning the representation of respondent's em- ployees and that all production and maintenance workers of respondent consti- tuted a unit appropriate for collective bargaining In its Supplemental Decision in that case, issued February 15, 1946, the Board further stated that the ques- tion of representation was being held open. Counsel for respondent contends that the Board was in error in its determina- tion of October 12, 1945, in the Beretet-Richards case, in finding that a question 14 It appears that the American Federation oP Labor took over the affairs of Local 20324 and assigned jurisdiction of its membership to Local 474, an affiliate of Teamsters. 11 As indicated above , Local 474, an affiliate of Teamsters, is currently recognized by re- spondent as the representative of its production employees. 826 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of representation existed; that, contrary to the Board's decision therein, timely notice of a request for negotiations was not received by respondent from the contracting union in May 1945; that he, as the witness for respondent in the original Bei ent-Richards proceeding, made no admission that respondent, as stated in that decision, received timely notice of a desire to amend; and that this matter has previously been called to the attention of the Board.10 He also introduced in evidence a copy of a telegram to respondent dated May 2, 1945, which reads as follows : Under the terms of the present bargaining agreement we hereby serve notifi- cation of our desire to reopen the contract and negotiate on wage hour and working conditions for the 1945 season. CANNERY WORKERS UNION SACRAMENTO, CALIFORNIA A. E. BILLER, Business Agent.i7 It is the contention of respondent that this notice of May 2, 1945, was not timely, and evidence was introduced to show that respondent had so notified Local 20324. Respondent further contends that the maintenance contract with Building Trades was not considered by the Board in its Be) cart-Richards decision of October 12, 1945, pointing out that the decision makes no mention of the contract of Building Trades for the maintenance workers It is respondent's position, in essence, that the Board, in finding a question of representation to exist concerning respondent's employees, did not rely upon the true facts' of the bargaining history, and that the maintenance contract was ignored. It is then contended that, contrary to the board's decision in the Bereut-Pachards case, valid contracts of respondent with Local 474 and Building Trades are currently in existence. Counsel for respondent alleges that respond- ent considers these 1946 contracts to be presently in force; that respondent per- mits access to the plant to.A F of L representatives, as required by the con- tracts; that no such access is pernutted to any other labor organizations; and that it is respondent's position that the present contracts with the A F. of L. require maintenance of membership as a condition of employment The record further discloses that on June 21, 1946, respondent posted a notice to its em- ployees in the plant which stated that respondent recognized only the A. F of L. and that production employees were required to remain members in good standing of the A. F. of L. Conclusions Assuming that the facts are as contended by respondent and as developed at the instant hearing, this position of respondent overlooks the following' The parties stipulated at the instant hearing that timely notices of intent to amend the maintenance workers contract as well as that of the production workers were submitted by the contracting unions on April 18 and 27, 1946, respectively. It was further stipulated (1) that the provisions of the 1944 maintenance con- tract, as amended by an 18 5 cent per hour wage increase following the above- mentioned notice, are still honored by respondent and Building Trades and (2) that the provisions of the 1945 production workers contract, as amended by a wage increase of 18.5 cents per hour following the above-mentioned notice, and by the replacement of Local 20324 by Local 474, are still honored by respondent 16 This was apparently done after the issuance of the October 12 decision Although the various Supplemental Decisions of the Board make no specific mention of respondent the parties stipulated that the maintenance contract was placed in the record of the Beicut- Richards case in Januaiy or Febiuaiy of 1946 17 According to counsel for respondent, Bilger was then Business Agent for Local 20324 BASIC VEGETABLE PRODUCTS, INC. 827 and Local 474. It is clear, and the undersigned finds, that the above notices, in April 1946, of a desire to amend the existing contracts, and the subsequent changes in wage rates were sufficient to prevent automatic renewal of the pro- duction workers contract, and that the maintenance contract was thereby termi- nated under its provisions' But respondent also knew, at the time the old contracts were terminated in April 1940, and prior to resuming recognition of the A. F. of L., that a real ques- tion existed concerning the representation of its employees. The C. I. 0. had campaigned in the plant during 1945, and had filed a representation petition with the Board The Board, in October 1945, decided that a question concern- ing representation existed and elections were scheduled and held to resolve the question. On February 15, 1946, the Board set aside the elections, but expressly put all parties in the Bei cut-Rhchai ds case on notice that the question concerning representation would be kept pending before the Board and a new election held. Respondent obviously was aware that both the C. I. 0. and the A. F. of L. had been, represented in the ballot in the election wherein a majority of the valid votes counted were east for the C. I. 0. and which were set aside. Although this determination by the Board in the Bercut-Ric7hal as case may have had no effect upon the duration of contracts which were still in existence, such is not the case here where the 1946 contracts were entered into with full knowl- edge of the Board's decisions, In this context, respondent disregarded the orderly procedures of the Board and arrogated to itself resolution of the rep- resentation dispute between the A F of L and the C I. 0 In addition, it is likewise clear that prior to the negotiation of any new agree- ments, respondent was aware that as far back as October 1945, in the original Be? cut-Richards decision, the Boai d had decided that a single unit of production and maintenance employees was appropriate for respondent's plant. Although this determination of unit by the Board may not have had any effect upon contracts which were already in existence and in effect at the time of the determination, such is not the case here where the 1946 contracts were entered into with full knowledge of the Board's outstanding determination of the appropriate unit in the original Bercut-Richards decision There, the Board considered the entire bargaining history in the area, both with respect to CP & G and the various independents involved in that case, and then determined that a plant-wide unit comprised of production and maintenance employees, exclusive of office, clerical and supervisory employees constituted an appropriate unit for the purposes of collective bargaining.'D As opposed to that determination, the only further light shed`by the instant case is that one contracting union, Local 20324, decided of its own volition in 1944, to split up a plant-wide unit which the parties had agreed was appropriate in 1943. The undersigned finds that a single plant-wide unit of production and maintenance employees, as determined by the Board in 1945, at all tines material herein constituted and now constitutes a unit appropriate for collective bargaining within the Meaning of Section 9 (b) of the Act. The undersigned further finds that separate units of production and maintenance employees, respectively, are inappropriate units within the meaning of Section 9 78 The production contract provided, in part In the event that such notice is given as hereinabove provided, and negotiations are begun, the terms of this agreement shall remain in full force and effect and until the following May 15th, The maintenance contract provided, in part This agreement . shall continue . . . in effect . . . unless written notice is given . to change, amend or terminate same ]D As noted above, the Board found an identical unit to be appiopriate for many other employers in the Bercut-Richards case ' t 828 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of the Act, and that the 1946 contracts with Local 474 for production workers and with Building Trades for maintenance workers are for inappropriate units and contrary to the express finding of the Board .20 The afore-mentioned conduct of respondent was and is a breach of its obligation of neutrality, and constitutes unwarranted assistance to the A. F. of L. The undersigned finds that by executing collective agreements with Local 474 and Building Trades, in the face of the representation proceedings pending before the Board, by presently according recognition to the unions signatory to these con- tracts, and by granting access to the company premises to these unions only, respondent indicated its approval of the A. F. of L., accorded it unwarranted prestige, encouraged membership therein, and thereby rendered unlawful assist- ance to the A. F. of L., which interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act 21 C. The alleged discriminator y discharges The complaint alleges that respondent discharged Carleton W. Hersey and Ernest E. Hankins on or about April 6, 1946, because of their activities in behalf of the C. I. O. and because they failed to become or remain members of the A. F. of L. Carleton W. Hersey applied for employment with respondent in September of 1945. He was interviewed by Personnel Manager Ball who informed him that it was necessary that Hersey obtain prior clearance with an affiliate of Building Trades. Hersey became a member of an affiliate, Carpenters and Joiners Local Union No. 180, and commenced his employment with respondent during Sep- tember of 1945. In December, Hersey joined the C I. 0, but continued to pay dues to Local 180 until March l946 2' He testified that during January 1946, he admitted to Building Trades that he "had a card in the C. I. O " At a union meeting held by Building Trades on or about March 12, 1946, both Hersey and Ernest Hankins, whose discharge is discussed below, indicated their adherence to the C. I. O. On or about March 28, Hersey was expelled from Local 180. Ernest E. Hankins applied for employment with respondent on or about De- cember 10, 1945. He was interviewed by Personnel Manager Ball who informed' him that it was necessary for Hankins to obtain prior clearance from Plumbers- and Steamfitters Local Union No. 343, A. F. of L, an affiliate of Building Trades. He contacted Local 343 and paid $10 at that time as a part payment on his initiation fee of $50. He was given clearance by that union and then commenced his employment with respondent on or about December 10. Hankins paid $30 towards his initiation fee during January and February of 1946, in installments of $10, although at no time did he pay any dues. During February, he refused to pay the final installment of $10 on his initiation fee to a shop steward of Building Trades, and was told by the latter, Cal Moore, that "something" would be done about the matter. Hankins joined the C. I. O. on or about March 12. The record, however, does not indicate exactly when Hankins lost his good standing with Building Trades. Together with Hersey, as indicated above, he indicated his adherence to the C. I. O. at a union meeting held by Building Trades on or about March 12, 1946. 20 See Matter of Graham Ship Repair Co, 63 N. L R. B. 842. 21 Matter of Midwest Piping and Supply, Inc, 63 N. L. R. B. 1060; Matter of Phelps Dodge Copper Products Corp, 63 N L R B 686. 'a Hersey, whose testimony is at times vague as to dates , also testified that he turned in his "book" to Local 20324 in December of 1945, at the time he joined the C. I. O The record does not explain why Hersey also belonged to Local 20324. BASIC VEGETABLE PRODUCTS, INC. 829 On March 15, 1946, Lowell Nelson, Business Representative of Building Trades, wrote as follows to respondent: The Building Trades Council request the Basic Vegetable Products Company to remove from their employ two, (2) maintenance workers: Carlton (sic) W. Hersey and E E. Hankins. These men are not in good standing with organizations affiliated with our Council. Upon receipt of this letter, respondent wrote to its counsel, Mr St. Sure, and requested advice. He replied by letter and advised respondent that under its contract with Building Trades, it was obliged to honor the request for dismissal. On April 6, 1946, Hersey and Hankins were summoned, at different times, to the office of Plant Manager Porter. Porter was absent, but Personnel Manager Ball, Maintenance Superintendent O'Dale, and Plant Superihtendent Jones were present. Ball read a letter to Hersey, purportedly from Building Trades, to the effect that Hersey was no longer a member in good standing. He then told Hersey that in view of the letter he was discharged. In Hankins' case, Ball told him that respondent had received a letter from Building Trades to the effect that Hankins was no longer a member in good standing. He told Hankins that he was discharged in view of the letter. Insofar as the record indicates, no other conversations took place when these discharges were carried out. Conclusions In view of the disparity between the original Bocut-Richards decision in October 1945, and the record in the instant proceeding with respect to the collective bargaining history of respondent with labor organizations, the under- signed will first consider herein the question whether or not a valid collective bargaining agreement governed the relations of respondent and Building Trades at the time of the discharges. As appears above, the Bercut-Richards decision of October 1945 was silent concerning the 1944 contract of respondent with Building Trades covering main- tenance workers. Although it was stipulated in the instant proceeding that subsequent to the October decision, reference to that contract was introduced into the record of that case, the subsequent decisions in the Bercut-Richards case make no further specific mention of respondent or of respondent's collective bargaining agreements. It would thus appear that this maintenance contract with Building Trades remained in effect until notice to amend was given on or about April 18, 1946 In addition, although this indefinite contract would prob- ably not have been a bar, per se, to a finding by the Board in the Bercut-Richards decision that a question concerning representation then existed, assuming the contract were before the Board for consideration at the time, it nevertheless would have continued to govern the relations of respondent and Building Trades until such time as a new collective bargaining representative were selected. Inasmuch as a new collective bargaining representative had not been selected at the time of the discharges on April 6, 1946, and as the record is silent as to any notice to amend the contract prior to April 18, 1946, the undersigned ac- cordingly finds that the 1944 maintenance contract with Building Trades gov- erned the relations of the parties until the latter date. It is the contention of respondent and the A. F. of L., that the discharges of Hersey and Hankins are not discriminatory inasmuch as they were discharged for failure to remain members in good standing of Building Trades, as required by the contract. For such a conclusion to have merit, however, depends upon whether the contract in question does, in fact, include a closed-shop provision. $30 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The clauses in the 1944 contract between respondent and Building Trades which .are pertinent to this issue provide: 3 The employer agrees to employ only members in good standing of the signatory Unions. 4 The Employer agrees to recognize the standard Clearance Card of the Council, and that no employee shall be allowed to go to work without a 'Clearance Card properly signed by a representative of the Union or the Business Agent of the Council. -5. The Unions agree to furnish competent craftsmen on verbal or written request of the Employer, within forty-eight (48) hours, after such period there shall be no limitation of the Employer as to whom he shall employ. Except that such employee shall make application for membership in the Union immediately and become a member within thirty (30) days. Although the question is not free from doubt, considering the requirement laid down by the Board in The Iron Fireman Manufacturing Company case 23 that closed-shop contract must express the essentials of such a contract in unmis- takable language, the undersigned is of the opinion that clause 3 of the contract, avhich requires the employees to employ only members in good standing with the contracting union, does provide, as Building Trades contends, that employees must remain members in good standing of the contracting union. It is further found that the Building Trades contract of March 1944 is a closed-shop contract. Although an employer may honor the request of a contracting union, under' ,the provisions of a closed-shop contract, for the discharge of employees for failure to remain members in good standing of a union, such discharges are not protected if the employer is aware, at the time the discharges are carried out, that the demand for discharges was made because of activities by the employees in behalf ,of a rival union at a time when such activities would be appropriate 24 Counsel for the Board contends, in effect, that in the instant case, respondent had such knowledge. With relation to the period prior to the discharges, Hersey testified that during .January or February of 1946, Leadinan Lombardi told him to "dummy-up" on the C. I. 0. or he would discover that he was "but on the street" The record indicates that leadmen are covered by the Building Trades contract and are in :fact required to be members of Building Trades 22' There is no evidence that Lombardi's statement was instigated or ratified by top management in the plant. Hankins, a plumber, testified that he wore a C I 0. button in the plant, after joining the C. I. 0. on or about March 12, 1946, and that lie was thereafter assigned to unpleasant tasks usually performed by unskilled labor As noted above, when Hankins and Hersey were discharged, on April 6, 1946, they were told by Personnel Manager Ball that respondent had been notified by Building Trades that they were no longer in good standing with Building Trades. Ball then stated that they were discharged in view of the letter. There was no further conversation. The only other testimony pertinent to the period prior to the discharges is that of Leadman Lester Boles that sometime during the month of March 1946, Porter asked him if there was any element in Hersey's work that merited his being laid 23 69,N L R B 19 The Board there stated that in order to constitute a valid closed- shop provision the contract must provide: (1) an employee must become a member of'the contracting union, and (2) he must retain such membeiship (luring the life of the contract. 24 Matter of Rutland Coro t Owners, Inc, 44 N. L. R B 587, 46 N L R B 1040 25 As found hereinafter, leadmen are not supervisors within the Board's customary definition. BASIC VEGETABLE PRODUCTS, INC. 831 off 20 Boles further testified, however, that he was not certain which month this statement was made in, or whether this incident preceded or followed the,notitica- tion to respondent on March 15 by Building Trades that Hersey was no longer in good standing Under the circumstances, little weight can be attached to this testimony. On April 9, 3 days after the discharges, a C I O. committee called upon Plant Manager Porter. They requested that Porter reconsider the two discharges and reinstate Hersey and Hankins, stating that the two men were members of the C. I. 0. Porter refused, stating that it was impossible ; that he had "received a letter from the union ordering their discharge"; that if the discharges had not been carried out the Union would have pulled the maintenance crew off the job; and that between the two, he considered the discharge of the two as the lesser of two evils. Johnson then informed Porter that Hersey and Hankins would prefer charges of unfair labor practices against respondent and Porter replied that he anticipated as much when he laid the men off.27 There was no testimony by Building Trades representatives as to the reason Hersey and Hankins lost their good standing. In Hankins' case, however, he refused in February to complete payment on his initiation fee, and was warned by Building Trades that appropriate action would be taken. , There is no direct evidence that Ball had reason to believe, at the time of the discharges, that Hersey and Hankins lost their good standing in Building Trades because of their activities in behalf of a rival union, unless it be inferred from Porter's statement, 3 days after the discharges, that he had anticipated that unfair labor practice charges would be filed when he discharged the men. Assuming that this statement may be construed to mean that Porter was aware of the C. I O. activities of the two, it does not follow that he deduced therefrom that Building Trades was motivated by such activities and not by lawful considerations in demanding the discharges." In view of the above, and in this state of the record, the undersigned is of the opinion that the record does not show that respondent had knowledge that Build- ing Trades expelled Hersey and Hankins for their C. I. 0 activities. Accordingly, the undersigned will recommend that this allegation of the complaint be dismissed " D. Alleged interference, i estraint, and coercion The complaint further alleges that respondent since September 15, 1945, urged its employees to vote for the A. F of L,, and not for the C. I O. in the Board election conducted on October 16, 1945, warned its employees not to join the C. I 0 but to remain in the A F. of L, permitted A F of L meetings on cons- 2° Boles did not testify as to his reply, if any 22 These findings are based upon the credible and uncontroverted testimony of Charles: Workman and Lee Johnson. Poiter did not testify. 21 Matter of Diamond 7' Motor Car Company, 64 N. L R. B 1225 , Matter of Spacer Mann- facturing Corp , 70 N L R B. 41. 29 In arriving at the foregoing conclusions, the undersigned is not unaware of the proviso. to Section 8 (3) of the Act which requires a contract compelling membership in a labor organization as it condition of employment to be for an approptiate bargaining unit when made Although the Board, in the Beicut-Richards decision, found a production and main- tenance unit to be appropriate for respondent's employees, that decision was made in Octo- ber 1945 Fuitlierniore, the bargaining history of the paities prior to 1944 reveals but one prior contract in 1943 for a production and maintenance unit as the result of a con- sent election The instant case, however, was not litigated on the theory that the separate contracts in 1944 for production and for maintenance workers were for inappropriate units when made Cf Matter of Graham Ship Repair Co , 63 N L. R. B 842 As a result, the undersigned concludes that the record, in its piesent state, will not sustain a finding that the 1944 maintenance contract, ichen made, covered an inappropriate unit. 832 DECISIONS OF NATIONAL LABOR RELATIONS BOARD pany property, and collection of A. V. of L. dues on the company parking lot, while refusing similar privileges to the C. I. 0, and forbade solicitation for membership in and discussion of the C. I. 0 on company property during non- working hours, although permitted to the A. F. of L. 1. Incidents before the election Carleton Hersey, whose discharge on April 6, 1946, has heretofore been dis- cussed, testified that on or about October 11, 1945, Maintenance Superintendent O'Dale noticed Hersey in the plant while the latter was speaking in behalf of the A. F. of L.30 He asked Hersey what he was doing and Hersey replied that he was "doing a little electioneering." Approximately one hour later, Leadman Boles,-who distributed the pay checks, gave Hersey his pay check and stated that O'Dale had instructed him to give Hersey his check and to tell him "to keep up the good work." 31 The record does not show that Hersey indicated, in his pur- ported statement to O'Dale, for which union he was electioneering, or that O'Dale had any independent knowledge thereof. Hersey also testified that at a meeting of the maintenance department held prior to the election in October, Personnel Manager Ball and Assistant Main- tenance Superintendent Boles were present, and the assemblage was reminded that the maintenance contract still had some time to run. Hersey, however, attributed this latter statement to a leadman, Dugan. In addition, the under- signed finds, as Boles credibly testified, that Boles is actually a leadman with no authority to hire or fire who is required to be a member of Building Trades and who is covered by the collective agreement in force at the time. It also is not shown whether Ball was present when Dugan made this purported statement. Charles Workman testified that prior to the election in October, while he was employed by respondent, he asked Personnel Manager Ball what he thought of the election, and Ball replied, "If we get the C I. 0., we are going to have Hell." 33 In view of the entire record, the vagueness of some of the above testimony, and the lack of any evidence that the statements by leadmen were instigated or ratified by top management, the undersigned is of the opinion that the fore- going incidents do not constitute interference, restraint, and coercion by re- spondent in violation of Section 7 of the Act. 2. Incidents after the election n As previously set forth, some months after the election, in January or Feb- ruary of 1946, Leadman Lombardi told Hersey to "dummy-up" on the C. 1. 0. or else he would find himself "out on the street." The status of maintenance leadmen has been heretofore explained and there is no evidence that Lombardi's statement was instigated or ratified by top management. It is therefore not attributable to management. Evidence was also adduced to show that respondent permitted the consti uc- tion of a shack on company property some time prior to 1945, which was used by the A. F. of L. for the collection of dues from production workers. It appears that dues were generally paid at the shack during lunch and rest periods. The record further indicates, however, that the C. I. O. used the shack for a period 10 As heretofore noted, Hersey did not join the C . I. O. until December 1945 "These findings are based upon Hersey 's testimony . Boles testified that he had no recollection of this incident. O'Dale did not testify. 12 Workman admitted that at the time he knew the A. F of L had announced that if the C I O. won the election , it would stop hauling trucks to respondent's plant. as Respondent's recognition of and assistance to the A. F. of L. under the 1946 contracts have been previously discussed. Accordingly, findings herein are limited to the period prior to the giving Hof notice under the old agreements, on April 18 and 27, 1946, respectively. BASIC VEGETABLE PRODUCTS, INC. 833 during 1945 and that a key to the shack was still, at the date of the instant hearing, in the possession of Lee Johnson who was active in behalf of the, C. I O Counsel for the Board also adduced evidence to show that Building Trades conducted meetings of the maintenance crew in the plant, apparently with no objection by management. It was further shown that respondent acquiesced in the direct procurement of new employees by Local 20324, without first requiring employees to make application for work with respondent. It will be recalled, however, that throughout this period there were outstanding contracts providing for employment of union members only. On or about November 30, 1945, the following notice was posted in the plant : NOTICE TO ALL EMPLOYEES It has been called to our attention recently that there is a tendency among our employees to take up collections, ask for donations, collect dues, etc. We wish to call to your attention Section 25 of the agreement between BASIC and the Union : " "The Company and the Union agree that no collec- tion for any cause will be taken up in the plant, except in connection with the sale of War Bonds or similar war activities." We also wish to call your attention to the paragraph entitled "Solicitation" on Page 20 of the Company booklet, "YOUR JOB AT BASIC", which reads : "To save you annoyance and embarassment, BASIC has a rule which prohibits the sale of tickets, solicitation of money or other solicitation without the ex- press permission of the Company." May we have your cooperation in not asking for or giving to any collections or any other solicitation while on company property or during working hours. BASIC VEGETABLE PRODUCTS COMPANY Although this notice went beyond the terms of the agreement with Local 20324, in that it forbade solicitation on company property during nonworking hours without express permission by respondent, the notice was apparently offered by counsel for the Board in support of the allegation in the complaint that respondent forbade such activity to the C. I. 0., but permitted it to the A. F. of L. There is no evidence of the discriminatory application of this rule. The undersigned is of the opinion that this notice, under the circumstances, and in view of the entire record, does not constitute assistance to the contracting union.35 In view of the foregoing findings, it is found that respondent has not violated Section 7 of the Act, as alleged herein. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of respondent set forth in Section III, above,' occurring in con- nection with the operations of respondent 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 REMEDY Having found that respondent has engaged in certain unfair labor practices, the undersigned will recommend that it cease and desist therefrom and take cer- tain affirmative action designed to effectuate the policies of the Act. s4 Local 20324. - 55 This notice has not been considered in the light of whether it would be per se violath e of the Act. The above finding is not to be construed to mean that, in another context, such a pronouncement on the part of an employer would not be violative of the Act, since the Board and the Courts have held that, under normal cncumstances, an employer's ban on union activities during the employees' free time is violative of the Act. 834 DECISIONS OF NATIONAL LABOR RELATIONS BOARD It has been found that respondent has unlawfully assisted the A F of L., and interfered with the C I. 0 by recognizing and entering into collective agree- ments with the A F. of L. in 1946 as the exclusive representative of its employees; and by granting access to its premises only to the A F of L. Obviously a free selection of a bargaining representative cannot be made where recognition in a contract requiring union membership as a condition of employment has been, accorded to one of the competing parties The undersigned will accordingly recommend that respondent cease and desist from recognizing the A. F. of L. as such exclusive representative unless and until it has been certified as such by the Board Since the 1946 contracts perpetuate respondent's unlawful assistance to the A. F of L and preclude the employees from presently exercising their right to select a bargaining representative of their own choice, the undersigned will further recommend that respondent cease giving effect to the 1946 contracts with the A. F. of L, or to any extension, renewal, modification or supplement thereof, unless and until it shall have been certified as the exclusive representative ,of respondent's employees -Nothing herein, however, shall be construed as requiring respondent to vary any wage, hour, seniority,, or other substantive features of its relations with the employees themselves, which respondent has established in the performance of this contiact, or to prejudice the assertion by,the,employees of any rights they may have under such agreements. .,Upon the basis of the above findings of fact and upon the entire recoid in, the case, the undersigned makes the following. CoNcl,usioNs of LAW 1 Food, Tobacco, Agricultural & Allied Workers Union of America, C I. 0 , International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Help- ers of America, A F of L, California State Council of Cannery Unions, A F of L , Solano County Building and Construction Trades Council, A F of L, and De- hydration and Food Process Workers Local Union 474, A 11' of L, are labor organizations within the meaning of Section 2 (5) of the Act 2 By interfei ing vi ith, iest raining, and coercing its employees in the exercise, of the rights guaranteed in Section 7 of the Act, respondent has engaged in and is engaging in unfair laboi practices within the meaning of Section S (1) of the Act. 3 The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2 (6) and (7) of the Act. 4 Respondent Iuis not violated Section S (i) of the Act by the dischiu•ges. of Carleton Ii' Hersey and Ernest E Hankins RECOMMENDATIONS Upon the basis of the above findings of fact and conclusions of law, the under- signed recommends that respondent, Basic Vegetable Products, Inc, Vacaville, California, its officers, agents, successors, and assigns shall: 1. Cease and desist from: (a) Recognizing Dehydration and Food Piocess Workers Local Union 474, A. F. of L , and Solano County Building and Construction Trades Council, A. F of L., or any other labor organizations which are affiliates thereof, as the exclusive representative of any of its employees for the purposes of collective bargaining unless and until sand of g.uuzatioms, or either of them, or their affiliates, shall have been certified by the National Labor Relations Board as tt_e exclusive representative of such employees; (b) Giving effect to its contracts with Dehydration and Food Process Work- ers Local Union 474, A F of L. and Solano County Building and Construction. Trades Council, A F of L, of to any extension, renewal,, modification, or sup- BASIC VEGETABLE PRODUCTS, INC. 835 plement thereof, or to any superseding contract with these labor organizations or any labor organizations or affiliates thereof, unless or until said organiza- tions or either of them shall have been certified by the Boaid as the representa- tive of the employees in its Vacaville plant: (c) In any like or related manner interfeiing with, restraining, or coercing its employees in the exercise of the right to selt-organization, to form, join or assist Food, Tobacco, Agricultural & Allied Workers Union of America, C. I. O , or any other-labor organization, to bargain collectively through representatives of their own choosing and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection as guaranteed in Section 7 of the Act. 2 Take the follov rug affirmative action which the undersigned finds will effectuate the policies of the Act: (a) Withdraw and withhold all recognition of Dehydration and Food Process Workers Local Union 474, A F of L, and Solano County. Building and Con- struction Trades Council, A F. of L, or any other labor organizations which are affiliates thereof, as the exclusive representatives of any employees in its Vacaville plant, for the purposes of collective bargaining with respect to rates of pay, wages, hours of employment, or other conditions of employment, unless and until said organizations, or either of them, or any affiliate thereof, shall have been certified by the National Labor Relations Board as the representative of such employees ; (b) Post at its plant at Vacaville, California, copies of the notice attached hereto and marked "Appendix A " Copies of said notice, to be furnished by the Regional Director for the Twentieth Region, shall, after being duly signed by respondent's representative, be posted by respondent immediately upon re- ,ceipt thereof and maintained by it for sixty ((-,0) consecutive days thereafter, in conspicuous places, including all places where notices to employees are cus- tomarily posted. Reasonable steps shall be taken by respondent to insure that said notices are not altered, defaced, or covered by other nucterial ; (c) File with the Regional Director for the Twentieth Region on or before ten (10) days from the receipt of this Intermediate Report, a report in writing setting forth in detail the manner and fount in which respondent has complied with the foregoing recommendations It is further recommended that, unless on or before ten (10) days from the receipt of this Intermediate Itepoit respondent notifies said Regional Director in writing that it will comply with the foregoing recommendations, the Na- tional Labor Relations Board issue an order requiring respondent to take the action aforesaid It is further recommended that the complaint, insofar as it alleges that re- spondent discriminatorily terminated the employment of Carleton W Hersey and Ernest E. Hankins, be dismissed It is further recommended that the complaint be dismissed insofar as it al- leges that respondent interfered with, restrained, and coerced its employees, by disparaging the C 1 0 and by rendering assistance to the A. F of L prior to "termination, in April 1940, of the then existing contracts. As provided in Section 20339 of the Rules and Regulations of the National Labor Relations Board, Series 4, effective September 11, 1946, any party or counsel- for the Board may, within fifteen (15) days from the date of service of the order transferring the case to the Board, pursuant to Section 20338 of said Rules and Regulations, file with the Board, Rochambeau Building, Wash- ington 25, D. C , an original and foul copies of a statement in writing setting forth such exceptions to the Intermediate Report or to any other part of the record or proceeding (including rulings upon all motions or objections) as he 766972-48-vol 75-54 836 DECISIONS OF NATIONAL LABOR RELATIONS BOARD relies upon, together with the original and four copies of a brief in support thereof ; and any party or counsel for the Board may, within the same period, file an original and four copies of a brief in support of the Intermediate Report. Immediately upon the filing of such statement of exceptions and/or briefs, the party or counsel for the Board filing the same shall serve a copy with the Regional Director. Proof of service on the other parties of all papers filed with the Board shall be promptly made as required by Section 203 63. As further pro- vided in said Section 203.39, should any party desire permission to argue orally before the Board, request therefor must be made in writing to the Board within ten (10) days from the date of service of the order transferring the case to the Board. MARTIN S. BENNETT, Trial Examiner. Dated October 30, 1946. APPENDIX A NOTICE TO ALL EMPLOYEES Pursuant to the recommendations of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, we hereby notify our employees that : WE WILL NOT recognize Dehydration and Food Process Workers Local Union 474, A. F. of L., and Solano County Building and Construction Trades Council, A. F. of L., or any other labor organizations which are affiliates thereof, as the exclusive representatives of any of our employees in our Vacaville plant, for the purposes of collective bargaining, unless and until said organization, or either of them, or their affiliates, shall have been certified by the National Labor Relations Board as the representative of such employees. WE WILL NOT give effect to our contracts with Dehydration and Food Process Workers Local Union 474, A. F. of L., and Solano County Building and Construction Trades Council, A. F. of L., or to any extension, renewal, modification or supplement thereof, or to any superseding contract with said labor organizations, or either of them, unless and until said organizations, or either of them, shall have been certified by the Board as the representative of the employees in our Vacaville plant. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of their right to self-organization, to form labor organizations, to join or assist Food, Tobacco, Agricultural & Allied Workers Union of America, C. I. 0., or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purposes of collective bargaining or other mutual aid or protection. All our employees are free to become or remain members of Food, Tobacco, Agricultural & Allied Workers Union of America, C. I. 0., or any other labor organization. BASIC VEGETABLE PRODUCTS, INC., Employer. Dated ---------------------- By----------------------------------------- (Representative) (Title)