Stanislaus Food Products Co.

In the Matter of STANISLAUS FOOD PRODUCTS COMPANY (FORMERLY STANISLAUS CANNING COMPANY) and FOOD, TOBACCO, AGRICULTURAL & ALLIED WORKERS UNION OF AMERICA, C. I. O. and CALIFORNIA, STATE COUNCIL OF CANNERY UNIONS, CANNERY WORKERS' UNION, LOCAL 748, INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUF- FEURS, WAREHOUSEMEN AND` HELPERS OF AMERICA, A. F. OF L.,* PARTY TO THE CONTRACT Case No. 20-C-1426.-Decided August 31, 19.48 DECISION AND ORDER On September 30, 1947, Trial Examiner Earl S. Bellman issued his Intermediate Report in the`• above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices in violation of Section 8 (1), (3), and (5) of the Act 2 and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto. The Trial Examiner also found that the Respondent had not engaged and was not engaging in certain other unfair labor practices as alleged in the complaint. Thereafter, the Respondent and the Intervenor, Party to the Contract, filed exceptions to the Inter- mediate Report and supporting briefs. The Intervenor and the Re- spondent have requested oral argument before the Board in Washing- ton, D. C. Because the record and briefs, in our opinion, adequately present the issues and positions of the parties, the request for oral argu- ment is hereby denied. *The caption is hereby amended by striking the word "UNION" which has erroneously appeared after "HELPERS ," and by inserting "CANNERY WORKERS ' UNION, LOCAL 748," the local which signed the contract. ' The power of the Board to issue a Decision and Order in a case such as this where the charging union has not complied with the filing requirements specified in Section 9 (f), (g), and (h) of the amended Act, was decided by the Board in Matter of Marshall and Bruce Company, 75 N. L. R. B. 90. 2 The provisions of Section 8 (1), (3), and ( 5) of the National Labor Relations Act, which the Trial Examiner herein found were violated , are continued in Section 8 (a) (1), 8 (a) (3), and 8 (a) (5) of the Act, as amended by the Labor Management Relations Act, 1947. 79 N. L. R. B., No: 36. 260 STANISLAUS FOOD PRODUCTS COMPANY 261 Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this proceeding to a three-man panel consisting of Chairman Herzog and Members Reynolds and Murdock. The Board has reviewed the rulings of the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rul- ings, are hereby affirmed. The Board has considered the Intermediate Report, the exceptions and briefs, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner. Certain of the recommendations, however, are affirmed only subject to timely compliance by the charging union with the filing requirements of the Act.3 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, Stanislaus Food Products Company, successor to R. J. Quartaroli, d/b/a Stanislaus Canning Company, Modesto, California, and its officers, agents, suc- cessors, and assigns shall: 1. Cease and desist from : (a) Refusing to bargain collectively with Food, Tobacco, Agri- cultural & Allied Workers Union of America, C. I. 0., if and when said labor organization shall have complied, within 30 days from the date of this Order, with Section 9 (f), (g), and (h) of the Act as amended, as the exclusive representative of all production and mainte- nance employees, excluding office and clerical employees and super- visors as defined in the Act, as amended; (b) Recognizing California State Council of Cannery Unions, Cannery Workers' Union, Local 748, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, A. F. of L., as the exclusive representative of its employees for pur- poses of collective bargaining, unless and until such organization shall have been certified by the National Labor Relations Board as the exclusive representative thereof ; (c) Giving effect to its agreement of April 12, 1946, with California State Council of Cannery Unions, Cannery Workers' Union, Local 748, International Brotherhod of Teamsters, Chauffeurs, Warehouse- men and Helpers of America, A. F. of L., or to any extension, renewal, 3 Matter of Marshall and Bruce Company, 75 N. L. R. B. 90, 94. 809095-49-vol. 79-18 262 DECISIONS OF NATIONAL LABOR RELATIONS BOARD -modification, or supplement -thereof, or to any superseding agree- ment with said labor organization, or any other labor organization which is an affiliate thereof, provided that the Respondent in comply- ing herewith shall not be required to vary the wages, hours of employ- ment, rates of pay, seniority or other substantive features of the em- ployment relationship established by its agreement of April 12, 1946; (d) Discouraging membership in Food, Tobacco, Agricultural & Allied Workers Union of America, C. I. 0., or in any other labor organization of its employees by discharging, refusing to reemploy or reinstate any of its employees, by maintaining discriminatory condi- tions as to employment, or in any other manner discriminating in regard to their hire or,tenure of employment, or any term or condition of employment ; (e) Encouraging membership in California State Council of Can- nery Unions, Cannery Workers' Union, Local 748, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, A.' F. of L., by discharging, refusing to reemploy or re- instate any individual for refusing to maintain membership therein, by requiring membership therein as a condition of employment, or by giving preference as to hire or tenure of employment or any term or condition of employment based on membership therein,'except `as siich preference shall have been established by agreement valid under the provisions of the National Labor Relations Act, as amended; (f) In any like or related manner interfering with, restraining, or coercing its employees in the exercise of their right to self-organiza- tion, 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 representa- tives of their own choosing if and when such representative shall have complied with the filing requirements of the Act, as amended, and to engage in concerted activities for the purposes of collective bargaining or other mutual aid or protection, as guaranteed in Section 7 of the Act. 2. Take the following affirmative action, which the Board finds will effectuate the policies of the Act: (a) Offer Diana A. Bettencourt immediate and full reinstatement to her former or substantially equivalent position, without prejudice to her seniority and other rights and privileges, in the manner set forth in the section of the Intermediate Report entitled "The remedy"; (b) Make whole each of the employees listed in "Appendix A" hereto for any loss of pay they may have suffered by reason of the Respondent's discrimination against them by payment to each of them of a sum of money equal to an amount determined in the manner set STANISLAUS FOOD PRODUCTS COMPANY _263 forth in the section of the Intermediate Report entitled "The _Remedy"'; (c) Withdraw and withhold all recognition from California State Council of Cannery Unions, Cannery Workers' Union, Local 748, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, A. F. of L., as the exclusive representative of its employees 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 organization shall have been certi- fied by the National Labor Relations Board as the exclusive repre- sentative of its employees in an appropriate unit; (d) Upon compliance by the Union with the filing requirements of the Act, as amended, in the manner set forth above, continue to bargain collectively with Food, Tobacco, Agricultural & Allied Workers Union of America, C. I. 0., as the exclusive representative of all of its produc- tion and maintenance employees, excluding office and clerical em- ployees and all supervisors as defined in the Act, as amended, and if an understanding is reached, embody such understanding in a signed agreement ; (e) Post at its plant and warehouse at Modesto, California, copies of the notice attached hereto marked "Appendix B." In the event that this Order is enforced by a decree of a Circuit Court of Appeals, there 'shall be inserted before the words "A DECISION AND ORDER" the words : "A DECREE OF THE UNITED STATES CIRCUIT COURT OF APPEALS ENFORCING." Copies of said notice, to be furnished by the Regional Director for the Twentieth Region, as agent for the Board, shall, after being duly signed by the Respondent's representative, be posted by the Respond- ent immediately upon the receipt thereof and -maintained by it for a period of thirty (30) consecutive days'thereafter and also for an addi- tional thirty (30) consecutive days in the event of the compliance by the Union with the filing requirements of the Act, as amended, in con- spicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respond- ent to insure that such notices are not altered, defaced, or covered by any other material; (f) Notify the Regional Director for the Twentieth Region, as agent for the Board, in writing, within ten (10) days 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 discriminated against Julia Rogers in respect to her hire or tenure of employment, be, and it hereby is, dismissed. 264 DECISIONS OF NATIONAL LABOR RELATIONS BOARD APPENDIX A The list of employees to be made whole for any loss of pay they may have suffered by reason of the Respondent's discrimination : Marie Amador William Campolongo Mary Caruso Cecil Ehrlich Helen Maddeford Ada Powell Josephine Satterlee Iva Taylor Rachel Trautman Maudie Mae Wyatt Maude B. Wyatt James E. Brink Diana A. Bettencourt APPENDIX B 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, we hereby notify our employees that : WE WILL NOT recognize CALIFORNIA STATE COUNCIL OF CANNERY UNIONS, CANNERY WORKERS' UNION, LOCAL 748, INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA, C. I. 0., as the exclusive representative of our employees in our Modesto, California, plant and warehouse, for the purposes of collective bargaining, unless and until said organization shall have been certified by the National Labor Relations Board as said representative. WE WILL NOT give effect to our agreement dated April 12, 1946, with CALIFORNIA STATE COUNCIL OF CANNERY UNIONS, CANNERY WORKERS' UNION, LOCAL 748, INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA, A. F. OF L., or to any extension, renewal, modification. or supplement thereof, or to any superseding agreement with said Union or any affiliate thereof, unless and until said Union shall have been certified by the National Labor Relations Board as the representative of our employees in an appropriate unit, and unless said agreement shall conform to the provisions of the National Labor Relations Act, as amended. WE WILL NOT encourage membership in CALIFORNIA STATE COUNCIL OF CANNERY UNIONS, CANNERY WORKERS' UNION, LOCAL 748, INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA, A. F. OF L., or any other labor organization, by discharging or refusing to reinstate any employee for failure to maintain membership therein, by requiring membership therein as a condition of employment, or by giving preference as to hire or tenure of employment, or any STANISLAUS FOOD PRODUCTS COMPANY 265 term or condition of employment based on membership therein, except as such preference shall have been established by agree- ment valid under the provisions of the National Labor Relations Act, as amended. WE WILL CONTINUE TO BARGAIN collectively with FOOD, TOBACCO, AGRICULTURAL & ALLIED WORKERS UNION OF AMERICA, C. I. 0., as the exclusive representative of all of our employees in the bar- gaining unit described below, provided said labor organization complies within thirty (30) days from the date of the aforesaid order of the Board, with Section 9 (f), (g), and (h) of the Na- tional Labor Relations Act, as amended, and, if an understanding is reached, we will embody such understanding in a signed agree- ment. The bargaining unit is : All of our production and maintenance employees, excluding office and clerical employees and all supervisors, as defined in the Act, as amended. WE WILL OFFER Diana A. Bettencourt immediate and full rein- statement to her former or substantially equivalent position with- out prejudice to her seniority or any other rights and privileges previously enjoyed. WE WILL MAKE WHOLE the following employees for any loss of pay suffered as a result of discrimination against them : Marie Amador William Campolongo Mary Caruso Cecil Ehrlich Helen Maddeford Ada Powell Josephine Satterlee Iva Taylor Rachel Trautman Maudie Mae Wyatt Maude B. Wyatt James E. Brink Diana A. Bettencourt All our employees are free to become or remain members of FOOD, TOBACCO, AGRICULTURAL & ALLIED WORKERS UNION OF AMERICA, C. 1. 0., or any other labor organization. We will not discriminate in regard to hire or tenure of employment or any term or condition of employment against any employee because of membership in, or activity on behalf of, any such organization. Dated ------------- STANISLAUS FOOD PRODUCTS COMPANY, SUCCESSOR TO R. J . QUARTAROLI, D/B/A STANISLAUS CANNING COMPANY, Employer. 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. 266 DECISIONS OF NATIONAL LABOR' RELATIONS BOARD INTERMEDIATE REPORT Mr. Robert E Tillman, for the Board. Mr J. Paul St. Sure, by M1r. Edward FI Moore, of Oakland, Calif., for the Respondent. Edises, Treuhaft 6 Condon, by 1Ir. Bertram Edises, of Oakland, Calif., and Mr Steve Murdock, of Modesto. Calif., for the CIO Tobriner ct Lazarus, by Dlr. Albert Brundage, of San Francisco, Calif., for the AFL: STATEMENT OF THE CASE - Upon a second amended charge filed on February 14, 1947, by Food, Tobacco, Agricultural & Allied Workers Union of America, C I. 0., herein called the CIO, the National Labor Relations Board, herein called the Board, by its Regional Director for the Twentieth Region (San Francisco, California), issued its com- plaint dated March 17, 1947, against Stanislaus Food Products Company, suc- cessor to R. J. Quartaroli, d/b/a Stanislaus Canning Company, Modesto, Cal- ifornia, herein jointly called the Respondent, alleging that the Respondent had engaged in and was engaging in unfair labor practices affecting commerce within the meaning of Section 8 (1), (3) and (5) and Section 2 (6) and (7) of the National Labor Relations Act, 49 Stat" 449, herein called the Act. Copies of the complaint and notice of hearing thereon were duly served upon the Respondent, the CIO, and California State Council of Cannery Unions, International Brother- hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, A. F. of L., Party to the Contract, herein called AFL' z With respect to the unfair labor practices, the complaint alleged in substance : (1) that on or about September 9, 1945, in violation of Section 8 (3) of the'Act, the Respondent discharged and thereafter refused to reinstate Diana A. Betten- court because she refused to maintain her membership in the AFL or because of her activity in behalf of the CIO; (2) that on or about March 1, 1946, while a question concerning representation of its employees was unresolved and still pending before the Board,' the Respondent granted exclusive recognition to the AFL, executed a contract with the AFL requiring membership therein as a condi- tion of employment, thereafter enforced said contract, and in enforcing same denied employment to 12 individuals who refused to "obtain clearance" through the AFL, all in violation of Section 8 (3) of the Act;" (3) that the foregoing contract between the Respondent and the AFL and any renewal or continuation thereof is illegal and void; (4) that at all times since October 2, 1946, when they Board certified the CIO as the exclusive representative of the Respondent's employees in an appropriate unit, the Respondent, in violation of Section 8 (5) of the Act, has refused to bargain with the CIO for said employees in said unit-;` and (5) that by all of the foregoing acts, the Respondent has interfered with,: restrained, and coerced its employees in violation of Section 8 (1) of the,Act.. On March 28, 1947, the Respondent filed its answer, in part admitting and in part denying the allegations of fact contained in the complaint, but denying that the Respondent had engaged in any unfair labor practic.::s. The Respondent's answer alleged that Bettencourt had been discharged pursuant to the terms of 1t While the local union was not identified in said service , no question is raised as to adequacy and the undersigned deems service adequate. ' a As alleged in detail in the complaint and described more fully below, the Respondent was one of various companies involved in a consolidated representation proceeding which has since become known as the Bercut-Richards case. * The names of these 12 individuals are the first 12 set out in "Appendix A" attached , hereto. STANISLAUS FOOD PRODUCTS COMPANY' 267 "a valid closed shop contract." As to the 1946 contract between the Respondent and the AFL and the refusals of employment thereunder, the answer stated that all of the Respondent's actions pertaining thereto were taken pursuant to "a valid closed shop contract." 6 As to the alleged refusal to bargain, the answer denied that, in view of its "valid closed shop contract," the Respondent had violated the Act and alleged that it was prepared to bargain with the CIO as the exclusive representative of the employees in the unit alleged in the complaint. The answer further alleged that the Respondent was prepared to offer, and thereby offered "employment to the persons named in paragraph 6 of said complaint, and each of them, at such work as may become available for them and for which they severally be qualified without requiring membership in the A. F of'L. as a con- dition of such employment." ° On April 16, 1947, the AFL filed an answer which in part admitted and in part denied the allegations of the complaint. While denying the allegations as to Bet- tencourt on the ground of insufficient information, the AFL's answer alleged by way of affirmative defense that in the event an employee refused to maintain membership in the AFL or persisted in carrying on activities on behalf of the CIO, such employee was discharged under the terms of its contract with the Respondent and any such discharge was not violative of the Act. Further, while denying the allegation as to refusal to hire employees under the March 1946 con- tract on the ground of insufficient information, the answer admitted that the AFL and the Respondent had executed an agreement granting exclusive recog- nition and requiring membership therein as a condition of employment. Pursuant to notice, a bearing was held on May 5, 6, and 7, 1947, at Modesto, California, before Earl S. Bellman, the undersigned Trial Examiner, duly desig- nated by the Chief Trial Examiner. The Board, the Respondent, the CIO, and the AFL were represented by counsel and participated in the hearing. Full op- portunity to be heard; to examine and cross-examine witnesses, and to introduce evidence bearing upon the issues was afforded all parties . On two occasions during the hearing, over objections by the Respondent and the AFL, paragraph 6 bf the complaint was amended by adding the name of an ' individual to the list'. therein.' At the close of the hearing, a motion by the Board to conform the- pleadings to the proof as to formal matters was granted without- objection. The parties were afforded opportunity to argue orally before the undersigned and to ° The 1946 contract is not the one referred to in connection with Bettencourt's discharge in 1945. ° This offer pertained to the first 12 individuals listed in - "Appendix A." The name of James E Brink was added at the opening of the Board 's case on the morning of the first day of the hearing, May 5; and that of Diana A Bettencourt was added on the morning of the last day of the hearing, May 7, during the presentation of the Respondent 's case For reasons set out in its brief, the Respondent objects to both amendments and contends specifically that the amendment relating to Brink and in effect that the amendment relating to Bettencourt constituted an abuse of discretion by' the Trial Examiner • Naturally , it would have been preferable if the complaint had issued in such form as not to need amendment . However , the undersigned is satisfied, under all of the circumstances shown by the record , that no abuse of discretion was involved in granting these amendments , and that the Respondent and the AFL were not unduly surprised or deprived of full opportunity to litigate all matters covered by the complaint, as amended . Thus, while repeatedly assured by the undersigned that any request for time to prepare to meet matters raised by said amendments would receive due consideration , neither the Respondent nor the AFL requested such a continuance. For instance, when asked by the undersigned at the close of its case whether the Respondent desired a continuance because of said amendments , counsel for the Respondent replied in the negative, stating , that the Respondent's objections went to the propriety of allow- ing the amendments and were "not related in any way to difficulties , ., in pre- paring proof to meet the new allegation." See Matter of The Hills Brothers Company, 67 N L. R. B. 1249. 0 268 DECISIONS OF NATIONAL LABOR RELATIONS BOARD file briefs and/or proposed findings of fact and conclusions of law. The parties waived oral argument. Briefs have been filed by the Respondent, the AFL, and the Board! Upon the entire record in the case, and from his observation of the witnesses, the undersigned makes the following : FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENT The Respondent, Stanislaus Food Products Company, successor to R. J. Quarta- roli, d/b/a Stanislaus Canning Company, was at all times material herein prior to November 14, 1946, an individual, R. J. Quartaroli, doing business as Stanislaus Canning Company at a plant owned and operated at Modesto, California. On November 14, 1946, the Stanislaus Food Products Company was incorporated under the laws of the State of California and all assets of R. J. Quartaroli, d/b/a Stanislaus Canning Company, were transferred to the Stanislaus Food Products Company, which has since operated the business as the successor to R. J. Quarta- roli, d/b/a Stanislaus Canning Company. At all times material herein, the Re- spondent has been engaged at its place of business in Modesto, California, in the processing and canning of fruits and vegetables. The annual value of the prod- ucts of the Respondent's Modesto plant is in excess of $1,000,000. More than 95 percent of said products is sold and transported in interstate and foreign com- merce from its plant in California to other States and territories of the United States and to foreign countries. The undersigned finds that the Respondent is engaged in commerce within the meaning of the Act. H. THE ORGANIZATIONS INVOLVED Food, Tobacco, Agricultural & Allied Workers Union of America, herein called the CIO, is affiliated with the Congress of Industrial Organizations. California State Council of Cannery Unions, Cannery Workers' Union, Local 748, Interna- tional Brotherhood of Teamsters, Chauffeurs', Warehousemen and Helpers of America, herein called the AFL, is affiliated with the American Federation of Labor. The CIO and the AFL are labor organizations admitting to membership employees of the Respondent. III. THE UNFAIR LABOR PRACTICES ° A. Introductory statement The Respondent is one of several "independent" canners which are- not mem- bers of California Processors and Growers, Inc., an association of canning com- panies in California, herein called the CPG, which entered into an agreement on June 10, 1941, with the American Federation of Labor and California State Coun- cil of Cannery Unions, as the collective bargaining agents for and on behalf of various Cannery Workers Unions, chartered by the American Federation of Labor, each of which unions adopted the agreement. Said agreement, as amended s To the extent that the document filed by the Board, entitled "Board Attorney's Pro- posed Findings and Brief in Support Thereof," contains proposed findings, said findings are hereby rejected, partly because of the form in which they are set forth. However, it will be noted that in some respects the findings made hereinbelow are similar to findings proposed by-counsel-for-the Board. ° Except where consideration is given below to such matters as the credibility of witnesses and conflicts in the evidence, the findings in this section of the Intermediate Report are made upon evidence which is undisputed or is at variance only as to immaterial details, or are made upon the clearly apparent preponderance of the reliable, probative, and sub- stantial evidence in the record considered as a whole. STANISLAUS FOOD PRODUCTS COMPANY 269 on January 26, 1942, and again on January 10, 1943, has been printed as a green- covered booklet ; has become generally known as the "Green Book" agreement ; and has been incorporated by reference into contracts signed by various inde- pendent canners and various locals of the parent labor organizations which signed the "Green Book." On August 12, 1942, in keeping with the above practice, the Respondent's first agreement with a labor organization was entered into between Stanislaus Can- ning Company and the American Federation of Labor, by and through its Western Office, the National Council of Cannery and Process Workers, and the Cannery Workers' Union, Local No. 22382, affiliated with the American Federation of Labor, herein referred to as Local 22382. In substance, this agreement incorpo- rated by reference all of the terms and procedures of the Green Book, and pro- vided also that all decisions ordered by the Adjustment Board under the Green Book would be binding upon the Respondent and Local 22382. For several years thereafter, as is described further below, this agreement, with its subsequent extensions and modifications, was administered by Local 22382, which also had several similar agreements with other canners in the general area in which the Respondent's plant is located. The portions of the Green Book agreement relevant herein, pertaining to prefer- ence of employment and hiring practices, are set out in "Appendix B" attached hereto. On August 19, 1943, the Respondent and Local 22382 signed a supple- mentary agreement, entitled "Dues Collections and Check-off," the provisions of which are set out in "Appendix C." On July 10, 1944, the Respondent and Local 22382 signed a stipulation by which they agreed to be bound by an award of the National War Labor,Board on a matter then pending before it which involved the parties who had signed the Green Book agreement. That award, which appears to have been made during the spring of 1945, directed a revokable check- off. Hence the practice established at the Respondent's plant under the agree- ment of August 19, 1943, set out in "Appendix C," was discontinued sometime dur- ing the spring of 1945. It also appears that in the spring of 1945, Local 22382 and the Respondent, in keeping with similar action by other independents, entered into a "Stipulation of Agreement" 10 to the effect that provisions as to rates of pay and overtime being negotiated by the parties to the Green Book would be accepted by the Respondent and Local 22382. Whatever may have been the specific provisions of the 1945 agreement, which it will be assumed ran until early in 1946, the undersigned is satisfied that said agreement made no change in matters pertaining to union membership as a condition of employment. From the foregoing, it is evident that the.Respondent_and Local 22382 were, following; ,the.Green,Bogk, as amendgd,.at the time of the events now to be considered which led to Bettencourt's discharge. B. The discharge of Diana A. Bettencourt 1. The facts pertaining to the discharge Diana A. Bettencourt entered the Respondent's employ in February 1944 and was employed during the 1945 canning season until her discharge in September 1945.11 For several months prior to her discharge, Bettencourt and a number of other employees at the Respondent's cannery had ceased paying dues to Local 22382, of which they had been dues-paying members. In fact, after a dispute had 10 The details thereof are not set forth in the evidence ; the document was not available at the hearing. 11 The duration of the annual canning season varies somewhat , but there is always a seasonal shut-down covering approximately the winter months - 270 DECISIONS OF NATIONAL--LABOR RELATIONS BOARD developed during May 1945- as to the affiliation and control of Local 22382 and the administration of its contract with the Respondent,' Bettencourt had joined the CIO and had become a member of a committee which passed out CIO literature outside the cannery . In addition, the CIO had filed on July 6, 1945, its petition in Case No. 20-R-1458, one of the numerous representation cases involving members of the CPG and various independent canneries, which petitions were consolidated into a proceeding since known as the Bercut-Richards case." The hearing therein was held at various times between July 3 and September 11, 1945. Thus said hearing was in progress at the time of the events now to be considered On September 5, 1945, Wesley King, who was then (and had-been since July 1943) a business agent of Local 22382," which the Respondent had continued to recognize as holding the contract with it, saw Bettencourt while she was at her place of work in the Respondent's plant. King tried to get Bettencourt, who had not paid dues to Loeal'22382 for over 90 days, to pay her dues. During a brief altercation which thereupon ensued, Bettencourt emphatically refused to do so 16 Shortly after Bettencourt refused to pay her dues, King delivered two letters ,to the Respondent. These letters, both dated September 5, 1945, were on letter- heads of Local 22382," and were signed "H. C Torreano, Representative." One of these letters was addressed to the Respondent, attention Ralph Quartaroli, who actively heads the Respondent's business.17 This letter read : This is to notify you that Diana A. Bettencourt, whose number is 2027 on your pay-roll, is suspended from membership in Local #22382. W'i'e' are re- questing her immediate dismissal of this date. The second letter, addressed "TO WHOM IT MAY CONCERN" read : This is to notify the management and personnel offices of all canneries under contract with Local Union #22382 affiliated with the American Fed- eration of Labor the reasons set forth herein Under Article 12, Section 14, under Article 11, Sections 1 and 2 of the Constitution and Bylaws of Local 22382, Diana A. Bettencourt is suspended from membership under Local 22382 and must not be employed by you " '? This dispute is considered more fully hereinbelow. One of the letters received by the Respondent in connection therewith is set out in "Appendix D." 18 Matter of Bercut-Richards Packing Company, et al, 64 N L R. B. 133. 4 14 King testified that Local 22382 was federally chartered, and that a "Federally Char- tered Union is a Local Union without an international affiliation but a direct affiliation with the American Federation' of -Labor " As appears more fully below, by this time, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, herein called Teamsters, had taken over Local 22382, under an award of the Executive Council of the A F of L. 16 The undersigned considers differences in the testimony of Bettencourt and King as to what transpired between them to be immaterial, since it is clear that Bettencourt, then and thereafter, demonstrated unmistakably that she would not pay the dues which King was attempting to collect 18 Said letterhead, in addition to the printed insignia of the American Federation of Labor, was inscribed, "CANNERY WORKERS' UNION, Local No. 22382; Daniel Flanigan, Supervisor of Local Union, -Phone 1058. 606 Tenth St ; Modesto, California 11 A com- .parison with the inscription on the letterhead used by Local 22382 in May 1945, as set out in Appendix D, reveals that the supervision, the address, and the telephone number had changed. 11 The record shows that Ralph J. Quartaroll has been the active director of the Re- spondent's affairs at all times material herein ; that lie signed on behalf of the Respondent all of the agreements between it and Local 22382 hereinabove discussed : and that he is the Respondent's president 18 While the record does not reveal the provisions of Local 22382's Constitution and Bylaws above cited, no, contention is made that said provisions pertain to matters other than suspension for nonpayment of dues, and it is clear that Bettencourt did not make STANISLAUS FOOD PRODUCTS COMPANY 271 Be it further understood that if Diana A Bettencourt is now employed or is employed in the future, if a representative of this local union is notified of the same, we will ask her immediate dismissal. When King delivered the above letters to Quartaroli, he told him that under their contract Bettencourt would have to be discharged because she had been suspended from membership in Local 22382.19 Quartaroli read the two letters. King, who was obviously quite aggravated by what had transpired, also told Quartaroli that when he had tried to talk to Bettencourt, she had paid no atten- tion to him and had told him that if he did not leave her alone, she would use the knife on him which she was using to cut peaches.20 Quartaroli said that ,he thought that King was getting over-excited and that he would talk with Bettencourt and see if he could straighten out the matter. ' A few minutes after King left, Quartaroli had Bettencourt sent to his office. During their conversation which took place about 3 o'clock on the afternoon of September 5, Quartaroli told Bettencourt about his conversation with King; said that he did not know what her ideas about Local 22382 or any other unions were ; and asked her if she would not, at least until an election had been con- ducted and in order to avoid any trouble, pay her back dues to Local 22382, as he was still under contract with that organization. Quartaroli said that he would be glad to give her the money out of his own pocket for her dues Betten- court told Quartaroli that she did not need his money and could pay her dues, if she wanted to do so, with her own money. However, Bettencourt offered to pay her dues to Quartaroli, if he would deposit such dues in his office safe, to be ,paid eventually to the Union which won the bargaining rights in an election which both evidently assumed'would be held as a result of the Board hearing then in progress. Quartaroli explained that, because of the letters which he had received, he would be compelled to discharge Bettencourt, if she would not pay her dues, although he did not want to do so. Quartaroli suggested that Bettencourt work the remainder of the day to give herself time to reconsider. Bettencourt left the office and worked the remainder of the day. At the close of work on September 5, Bettencourt still was unwilling to pay the dues. Upon learning that Bettencourt had not changed her mind, Quartaroli instructed the head floorlady, Nell DuBraeo, to discharge Bettencourt This was done 21 2 The Rutland court theory as to Bettencourt's discharge The complaint alleged that Bettencourt was discharged- because she refused to maintain membership in the AFL or because of her activities in behalf of any attempt on or after September 5 to secure reinstatement in Local 22382 by paying -her dues thereto. "King testified that Bettencourt was suspended for non-payment of dues while there is some testimony tending to show that Bettencourt's leadership in sponsoring the CIO may have been a factor in her suspension, or in any event a factor in her having been pressed for payment of her delinquent dues whereas others whose dues were equally delin- quent were not so pressed, the evidence does not warrant finding that her non-payment of dues was merely a pretext for her suspension 2° whether or not any such threat actually had been made, the undersigned credits Quartaroli's testimony that King told him that Bettencourt had made such a threat 21 The findings as to what transpired between Quartaroli and Bettencourt are made upon the undersigned's analysis of their testimony, the tenor of which is essentially supple- mentary rather than contradictory It should be noted that the date of Bettencourt's dis- charge alleged in the complaint, September 9, fell on Sunday The date of the discharge found above, September 5, is the date on the letters above quoted. Bettencourt testified that she thought that she worked just 3 days after Labor Day, which fell on September 3 in 1945. 272 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the CIO. In the opinion of the undersigned, the facts above found and the record as a whole clearly establish that Bettencourt refused to maintain her membership in Local 22382; that the Respondent was aware of her refusal to do so ; that the Respondent discharged Bettencourt in compliance with a demand by Local 22382; and that the Respondent reasonably believed that Local 22382 suspended Bettencourt because of her refusal to pay her dues. In the undersigned's opinion, the evidence does not show that the Respondent discharged Bettencourt because of her activities on behalf of the CIO 22 It is true the Respondent had never before received any demand that it discharge an employee for reasons such as those involved in Bettencourt's discharge," and there is some evidence showing leadership on Bettencourt's part in sponsoring the CIO. Many, if not most, of the other employees were delinquent in their dues ; some of them had paid no dues after the check-off system had been modified in the spring of 1945, pursuant to the War Labor Board award. Such employees continued to work during the remainder of the 1945 canning season without any demand by Local 22382 that they be discharged. Thus it appears from all of the evidence that Bettencourt was singled out by Local 22382 for special treatment. There is some evidence which tends to support an inference that Local 22382's reason for doing so may have been that Bettencourt was a leader among the women employees,24 and that, as such, her payment of dues, or in the alternative her discharge for refusal to do so, might have set a persuasive example. On the other hand, it is possible that Bettencourt's attitude toward King when he tried to collect her dues may have contributed to the decision to demand that Bettencourt, alone among the em- ployees who failed to pay dues, be discharged. In any event, even if it be assumed that local 22382 had singled-out Bettencourt because of her activity on behalf of the CIO, the record does not support an inference that the Respond- ent had reason to believe that Bettencourt was suspended from Local 22382 because of activities on behalf of the CIO?" On the contrary, Quartaroli's con- versation with Bettencourt indicates that he was acting on the assumption that the problem involved was only one of.persuading Bettencourt to pay her dues to Local 22382. In view of the failure of proof as to knowledge on the Respondent's part that dual unionism was involved in Bettencourt 's suspension by Local 22382, if indeed it actually was, the undersigned is convinced that the Rutland Court doctrine does not apply," and that the evidence does not sustain the alternative theory of the complaint as to Bettencourt's discharge. 22 In its brief, the Board appears to have abandoned this alternative theory as to Betten- court's discharge The CIO,ehowever, has filed no brief, and ' it was evident from its exami- . nation of witnesses at the hearing that the CIO sought to establish this alternative theory. 23 Quartaroli testified that he had never been asked by the AFL to discharge anybody. 24 Most of the Respondent 's employees are women. 25 However, it is clear that Quat taroll had been aware for several months of conflicting claims as to representation among his employees. 2" This finding as to the inapplicability of the Rutland Court doctrine is in general accord with the positions taken in their respective briefs by the AFL and the Respondent. See Matter of Rutland Court Owners, Inc., 44 N. L. R. B. 587 , 46 N. L. R. B. 1040, and subse- quent cases . The undersigned deems it unnecessary to pass upon certain further conten- tions in the Respondent 's brief pertaining to the inapplicability of the Rutland Court doctrine. STANISLAUS FOOD PRODUCTS COMPANY 273 3. The "closed-shop contract" defense as to Bettencourt 's discharge Consideration must now be given to several aspects of the contentions of the parties as to the general defense advanced by the Respondent and the AFL, that Bettencourt's discharge was not violative of the Act because it was made pursuant to a valid closed-shop contract . In its brief, the Board challenges this defense on three major grounds, each of which is now considered. In the first place, the Board contends that there is no language in any contract, which can be, construed as having been in force in September 1945, that would have required that Bettencourt maintain her membership in Local 22382. In the opinion of the undersigned , the evidence supports this contention. As is found above in Section III, A, the Respondent and Local 22382 were following the Green Book at the time of Bettencourt's discharge The provisions thereof material on this issue are set out in "Appendix B." 21 On all of the evidence, the undersigned is satisfied and finds that the language in the Green Book agreement pertaining to preference of employment and hiring practices cannot be construed as constituting either a closed-shop provision or a provision re- quiring maintenance of membership , and that said language cannot constitute a defense to Bettencourt's discharge.28 In the second place, the Board, in direct conflict with the Respondent and the AFL, contends that in practice the contracts between the Respondent and Local 22382 were not treated as closed-shop contracts. The evidence on this point is in some respects susceptible of contrary inferences. It is true that Quartaroli and King both testified that the agreements had been treated as closed-shop agree- ments. Yet the only applicable provisions which King could point to in any of the agreements were those discussed above and set out in "Appendix B," while Quartaroli admitted that he had no recollection of having had any discussion of even those provisions with any representative of Local 22382. Further, what- ever may have been the Respondent's practice in yielding to demands by Local 22382, there is nothing in the evidence to warrant finding that there ever was any meeting of minds between the Respondent and Local 22382 as to any oral pro- vision for a closed shop , or as to the construction of any provision in the Green Book so as to require maintenance of membership in Local 22382.29 The Respondent contends in its brief that the supplementary agreement of August 19, 1943, entitled "Dues Collections and Check-off," set out in "Appendix C," established "an automatic check-off system for all employees." However, the language of said agreement , when read in conjunction with the Green Book, does 27 While the Respondent had not compiled a seniority list such as is referred to in "Appen- dix B," it is clear that Bettencourt was not terminated because she was considered a new employee. 28 See Matter of G. W . Hume Company, 71 N. L. R. B 533, in which the Board held that there was nothing in the Green Book provisions here being considered which required the employees involved "to maintain their union membership as a condition of continued em- ployment." See also Matter of Scientific Nutrition Corporation, 71 N. L. R. B. 1003, in which it was held that the Green Book was not "a closed-shop contract," did not require maintenance of membership , and was "no more than a preferential hiring contract." Both of the foregoing cases involved Local 22382 29 It should be noted that the local attorney , who was representing both the Respondent and the AFL during that period, did not testify at the hearing. 0 274 DECISIONS OF NATIONAL LABOR RELATIONS BOARD not appear to require that dues be checked off for all employees but rather only for the members of Local 2 2382. In any event , however this agreement may have been administered , it was set aside in the spring of 1945 by an award of the War Labor Board which admittedly established a voluntary , revokable check-off.90 Furthermore, the undersigned cannot agree with the contention in the Re- spondent's brief that there was , in addition to the written agreements received in evidence , "a uniform area practice" requiring membership in Local ?2382 as a condition of employment in canneries within the area in which the Respondent operates . Not only does the evidence fail to convince the undersigned on this' point, but a study thereof in the light of the Board 's decisions in complaint cases growing out of the Bercaat-Richards case persuades the undersigned that some employers , at least, interpreted their agreements otherwise until acquiescence was induced by the economic power of various AFL of Bates 31 Everything considered , the undersigned is convinced and finds that, what- ever may have developed at the Respondent 's plant in the nature of closed-shop or maintenance-of-membership practices , such practices were bottomed neither upon a reasonable interpretation of any written agreement nor upon an oral agree- ment arrived at as a result of the meeting of minds upon such matters Under such circumstances , it is immaterial that the Respondent may have been acting in good faith when it acquiesced in the position of Local 22382 that Betten- court would have to be dischar ged under the then existing contract because she failed to maintain her membership in good standing Acquiescing in good faith to such demands cannot be said to satigfy the proviso of Section 8 (3) of the Act, which the Board has held requires the expression of any closed-shop pro- vision "in unmistakable language." The thud challenge of the Board to the closed-shop defense has several facets. In general , the question thus raised is essentially whether or not, under all of the circumstances, the Respondent 's continued recognition of Local 22382, after the schism therein and after it had been taken over by Teamsters ,33 without requiring proof of continuing majority and at a time when the Respondent's employees had withdrawn their support therefrom, constituted such assistance within the mean- ing of Section 8 (1) of the Act as to invalidate prior agreements , even if thereto- fore such agreements could have been considered a defense under the proviso of Section 8 (3). The problem here involved stems from an award within the American Federation of Labor, whereby the International of Teamsters was awarded jurisdiction over , and took control of, Local 22382 , a Federally Chartered Local 34 30 Compare similar findings in the Hume case concerning an almost identical agreement 31 It is worthy of note that the Respondent , in its brief, refers to its position as being "out in 'no-man's land ' in one of the bitterest and most protracted jurisdictional wars in the history of the American labor movement," and to the AFL as having , from time to time. "effectively tied up large segments of the industry." 3= See Hatter of The Iron Fireman Manutacturang Company, 69 N L R B 19, 20 The situation in the instant matter is somewhat different from that in the Hume case. Therein the Board held that "at the time of the discharges the iespondents did not regard the contract as requiring maintenance by employees of union membership, whatever oral understanding may have pieviously existed between the parties." Cf Matter of Pittsburgh Plate Glass Company, 66 L R B 1083, in which the Board held that that respondent lj^ could not advance the pie'iso of Section 8 (3) in its defense where it had refused to exe- cute the sort of agreement contemplated by the proviso 13 "Teamsters" is used for convenience to identify the organization which took over Local 22382, although AFL was used interchangeably for both at the hearing, in the pleadings, and in the briefs. 31 The problem posed by the Board's third contention differs from that involved in the Sezentific Nutrition case , abole cited . Therein the Board held that it was unnecessary STANISLAUS FOOD PRODUCTS COMPANY 275 It is clear from two letters received in May 1945 that the Respondent was aware of factional claims in Local 22382. The first letter was dated May 8, 1945, was signed "H. L. Woxberg, International Representative," and was on the letterhead of "TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELP- ERS, Union No. 286" of the International. This letter called the Respondent's attention to action taken in Washington, D. C, by the Executive Council of the American Federation of Labor on May 3, 1945, in the following language: "The following is the award of the Executive Council-it is the sense of this Council meeting that the interests of the American Federation of Labor would be protected and preserved in the canning industry in California, Washington, and Oregon by the transfer of the federal labor unions in that field to the Teamsters International Union and that the officers of the Federa- tion be directed to cooperate with the Teamsters International Union in bringing about this result, and that the A. F. of L. cooperate in helping to organize the unorganized in this field " By the above action the International Brotherhood of Teamsters, Chauf- feurs, Warehousemen and Helpers Union of America inherit the agreement now in effect between your company and the American Federation of Labor and the Local Cannery Workers Union. The International Brotherhood of Teamsters wish to advise you that we expect your company to immediately recognize only the Teamsters Inter- national Union as the repiesentative of your employees and in return the Teamsters International Union will live up to the agreement now in effect to the letter. Shortly after receiving the above letter, the Respondent received the letter of May 11, set out in "Appendix D," from Tomson. Thus the Respondent was con- fronted with conflicting claims. Whatever may have been its reasons for so doing, it is clear that the Respondent decided to deal with and to honor the agree- ment with the officials of Teamsters who, at about that time, took over Local 22382, and that the Respondent thereafter did so It appears unnecessary to the undersigned to go further into the details bear- ing on this third contention, or to pass upon the issues involbed, in view of find- ings already made herein. Accordingly, no finding is made as to whether or not the Respondent, by treating Teamsters as the other party to its agreement after Teamsters had taken over Local 22382, engaged in conduct violative of Section 8 (1) of the Act so as to jeopardize whatever defense its contract with Local 22382 may otherwise have constituted under the 8 (3) proviso. 4. Conclusions as to Bettencourt 's discharge In view of all the foregoing, the undersigned concludes and finds that on Sep- tember 5, 1945, the Respondent discharged Diana A. Bettencourt and thereafter refused to reinstate her because she refused to maintain her membership in the to pass upon Teamsters ' contention that by virtue of a jurisdictional award of the Execu- tire Council of the American Federation of Labor, Teanisteis had become the legal sue- (es.or to Local 22382 In that case, after an exchange of correspondence early in May, similar to that d .scussed below in the instant matter, the parties entered into a new agreement. dated May 18 , 1945 , which was signed on behalf of Teamsters by H L Woxberg, an international representative 35 King continued to deal with the Respondent for Local 22382 after Teamsters took over 1 . 1 1 276 DECISIONS OF NATIONAL LABOR RELATIONS BOARD AFL;" that the Respondent's action in so doing was not protected within the meaning of the proviso of Section 8 (3) of the Act; and that the Respondent by said action has discriminated in regard to hire and tenure of Bettencourt's employment, in violation of Section 8 (1) and (3) of the Act. C. The refusals of employment under the agreement of April 12, 1D46 1. Circumstances pertaining to the execution of the agreement On October 5, 1945, following the hearing in the Bercut-Richards case which had been in progress at the time of Bettencourt's discharge, the Board issued a telegraphic decision. Thereafter, on October 12, 1945, it issued its Decision, Direction of Elections and Order in said case," confirming its telegraphic decision. By said actions, the Board directed that elections be held in several appropriate units among employees of various canning companies, including the Respondent's production and maintenance employees, which employees were held to constitute an appropriate unit.38 Pursuant to the Board's direction, an election was held on October 16, 1945, in Case No. 20-R-1458, the representation case which in- volved the Respondent's employees. In this election, there were 80 valid votes cast by the approximately 154 eligible voters.'9 Of the valid ballots, 9 were cast for the AFL and 71 for the CIO On February 15, 1946, the Board issued its Supplemental Decision and Order in the Bercut-Richards case,99 in which, for various reasons set out therein, the Board decided that the purposes of the Act would "best be served by setting aside all of the elections" which had been held in connection with said case. In this Supplemental Decision, which set aside the above election among the Re- spondent's employees, the Board used the following language : While we view the record as requiring this result, we reach it with considerable 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 determination 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 that date. In accordance with well-established principles,14 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; 15 the inclusion of any such provision in any new agreements, or action pursuant thereto, would clearly be contrary to, 14 See Matter of Midwest Piping & Supply Co., Inc., 63 N. L. R. B. 163. See also Matter of Ken-Bad Tube & Lamp Corp., 62 N. L R. B. 21 15 Moreover, no requests for discharges resulting from activity in the election are Justified even under the present agreement. See Matter of Rutland Court Owners, 44 N L. It. B 587, 46 N. L. It. B 1040. 89 That is to say, Local 22382, after it had been taken over by Teamsters. The com- plaint uses the designation , AFL, in this connection ; that term has been used by the parties to designate both Local 22382 and Teamsters 1 Matter of Bercut-Richards Packing Company, at al., 64 N. L. It. B. 133. ' Said unit is set out in detail in Section III, D, 1, hereof 19 There were also two challenged ballots and four void ballots. 40 Matter of Bercut-Richards Packing Company, at al., 6° N. L. It. B. 1052. STANISLAUS FOOD PRODUCTS COMPANY 277 the proviso in Subsection 8 (3). Nothing in our decision , however, should be construed as requiring any change in the substantive conditions of employ- ment now existing by virtue of the foregoing agreements. On April 12, 1946, while the question of representation among its employees was still pending and unresolved before the Board,' the Respondent signed an agree- merit with California State Council of Cannery Unions, and Cannery Workers' Union, Local 748, International Brotherhood of Teamsters, Chauffeurs, Warehouse- men and Helpers,' herein called AFL. The substantive provisions of this agree- ment, which was signed by Quartaroli , although the AFL presented no evidence to show that it represented the employees covered thereby,` were as follows : . 1. It shall be a condition of employment with the employer that all em- ployees covered by this agreement shall become and remain members of the Union in good standing. Present employees who are not as of the date of this agreement members of the Union must become members within ten '(10) days from the date hereof. Any new employees shall be required within ten (10) days of the date of hiring to become a member of the Union and thereafter remain a member in good standing. Persons who fail to maintain good standing in the Union In accordance with the By-Laws thereof shall be discharged within thirty-six (36) hours after the company is so notified by the Union. In the hiring of additional employees, the employer shall give preference to unemployed members of the local Union provided such individuals have the necessary qualifications and are available within forty-eight (48) hours after being notified. As a basis for preferential consideration unemployed niem- bers of the local Union shall be required to present a clearance card from the local Union, evidencing the fact of their paid-tip membership. 2. Any adjustment in wages, hours or conditions, which may.hereafter be agreed upon by the parties, shall be effective as of March 1, 1946 and retro- active to that date. 2. The refusals of employment On April 13, the day following the signing of the agreement, the Respondent started its operations for the 1946 season. Announcements had previously been broadcast over the local radio station that the Respondent would open and would hire employees that morning." Pursuant to Quartaroli's instructions, all em- ployees hired on April. 13, 1946, or at any time thereafter during the entire 1946 season, were required to get clearance from the AFL. Such clearance involved 11 The new election, which was later ordered by the Board and won by the CIO, was not conducted until September 1, 1946. 12 While each of these organizations signed the agreement, they were treated jointly in the pleadings and at the hearing as "party to the contract," and are jointly so considered herein. 43 According to Quartaroli, he did not know who drafted the agreement which was given to him in mimeographed form to sign in the office of the local attorney who represented both the Respondent and the AFL. Further, according to Quartaroli, the agreement was signed on April 13. However, the agreement itself is dated April 12, and it will be assumed that it was signed on April 12, before employees were hired for the 1946 season. "The undersigned does not believe that the Respondent's failure to send post cards announcing its opening to its old employees, as it had done in earlier years, is material to a determination of the issues. The Respondent similarly relied upon radio announcements at the opening of the current season which began on April 11, 1947. 809095-49-vol. 79-19 278 DECISIONS OF NATIONAL LABOR RELATIONS BOARD both membership in the AFL and authorization to the Respondent for the deduc- tion of 'dues thereto.45 ` - - - - On the morning of April 13,during the hour' or so when Head Floorlady DuBraeo was behind the counter in the Respondent's plant office doing the hiring, King was behind the counter next to her, ,in order to facilitate clearance by the AFL of persons seeking employment. It is apparent from the procedure which the evidence shows was followed in hiring, that applicants were required to secure clearance cards from King to^ evidence their "paid-up membership" in, order to secure preferential consideration as unemployed members of the AFL, as provided in the third paragraph under '(1) in, the above agreement. Such a clearance card certified that the.individual-named was "a member in good standing" of'theAFL and "eligible to be hired" at, the Respondent's plant. .The evidence'shows that, except for Julia Rogers," the individuals listed in "Appendix A," several of whom had first worked for the Respondent as early as 1943, were among those who applied at the -Respondent's plant on April 13. What took place as to some of said applicants is set out in,the following brief accounts based on uncontradicted testimony of those individuals which the undersigned c'redits' When Maudie Mae Wyatt asked Head Forelady DuBraeo for employment on April 13 in the plant office and was told she, would have to sign -with the. AFL, Wyatt said that it was illegal and that she did not want to do so.. DuBraeo told her that she would have to in order to work. Wyatt refused to join the AFL and did not work during 1946. -,k Ada Powell was similarly told by DuBraeo on April 13 that she would have to clear through the AFL. When she refused, she was told that she could not work. , Powell, who had joined the CIO, left without attempting to find out whether she could get clearance from King ; she did not work during. the 1946 season. When Dulbraeo told Diana A. Bettencourt on April 13 that she would have to clear with the AFL, .Bettencourt refused to do so on the ground that the cannery had voted CIO. Bettencourt did not work during the 1946 season. When Mary Caruso entered the plant office on April 13, she saw Quartaroli, DuBraeo and King behind the counter. She asked King for a job. King looked at DuBraeo, and told Caruso that she could not work unless she was cleared by the AFL. Quartaroli and DuBraeo said nothing and Caruso turned and walked away. An hour later, outside of the cannery, Caruso asked DuBraeo what the trouble was. DuBraeo told her that she would have to clear with the AFL or she could not get work. Caruso, who had worked since 1943, and who, custc m- arily had quit during the fall in order to pick grapes for herself, did not work during the 1946 season.' 48 Quartaroli testified that no one was employed during the 1946 season who did not first clear with the AFL, and that the AFL issued such clearance only to those who joined and who signed dues deduction authorizations. 46 There is no evidence establishing that Rogers applied for and was denied employment in 1946 because she refused to clear through the AFL, and the undersigned does not believe that the Respondent's answer constitutes an admission of the allegation of the complaint as to Rogers, although she was one of the individuals offered employment in the Respond- ent's answer. 94 Some of said individuals gave testimony, in part contradicted, as to additional remarks which the undersigned either does not credit or believes immaterial. 48 The undersigned does not consider it necessary to determine, from the contradictory testimony pertaining thereto, what took place between Quartaroli and Caruso a few days after April 13. outside the plant, when, even on Caruso's version of the incident, Quartaroli told her that if she came there again to cause a disturbance he would call the sheriff. STANISLAUS FOOD, PRODUCTS, COMPANY 2Z9 Helen Maddeford reached the plant office on April 13 after DuBraeo had left the, office. She called to DuBraeo, who, was inside the plant, and applied for work. DuBraeo told her to go to the office to get a clearance slip. Maddeford found King in the office behind the counter. He told her that since she had belonged to the CIO, she would have to sign,with the AFL. Maddeford said that she did not feel that that was right. Although King did not then deny, her an opportunity to clear, Maddeford turned and walked away. A few days later, after appearing before the Executive Board, Maddeford was cleared by, the AFL and was employed by the Respondent during the 1946 season, until she quit work early in July,because of illness 49 . . , On April 13, when the line of girls which included Marie Amador reached the counter„ Amador found King there, and asked him for a job. King asked her what union she belonged to. When she replied that she belonged to the CIO, he told her that he could not give her a job." Amador, did not work during the 1946 season. Maude B. Wyatt, like Amador, applied to King in the plant office on April 13. He told her that she would have to be cleared by the AFL. Wyatt, who did not believe that the AFL had a legal contract, told King that she would think it over. On May 1, Wyatt saw DuBraeo who told her that she did not think she had anything for her, as Wyatt had "got smart with the Union man." Wyatt denied having done so and DuBraeo telephoned the AFL. Shortly thereafter Wyatt Jointed the AFL ; was given clearance ; and was employed that same day. William Campolongo, who had had some 2 years' experience in the Respondent's warehouse, applied on April 13 to the warehouse foreman who sent him to the office to get, clearance. At the office, Campolongo saw King and, although he offered to join the AFL, was unable to get clearance. During the ensuing period of several weeks, Campolongo twice returned to the Respondent seeking em- ployment, but was unable to secure it because he was not able to get clearance from the AFL. He did not work during 1946.` When James E. Brink applied on April 13, he talked with Quartaroli and King. He asked, if he could get work without clearing through the AFL; Quartaroli told him that he could not. Thereupon Brink went home. Later, however, be- cause he had "to live," Brink joined the AFL, secured clearance, and went to work for the Respondent on July 12, 1946." 99 Maddeford had previously been a pieceworker but, during her 1946 employment, she worked as an hourly paid worker, thereby earning less money. Maddeford was not given her regular employment as a pieceworker when she returned on April 17, after having been cleared by the AFL Executive Board on the evening of April 16, although when she had reapplied for work on April 15, she had been told that she could have her regular position if she was cleared by the AFL. Although Maddeford testified that King told her that she would have to go before the Executive Board because he did not know "whether they could quite trust" her in the organization, the undersigned deems it unnecessary to determine why the AFL delayed clearing Maddeford. 5° There is no evidence that Amador tried to join the AFL, or that King refused to let her join. Si While Campolongo's testimony indicates that it may have been his activity on behalf of the CIO which caused the AFL to refuse to clear him, the AFL offered to prove at the hearing that Campolongo had been suspended for failure to pay dues. The undersigned does not believe that the reason for the AFL's refusal to clear Campolongo is material to a decision on the issues herein. , Si The Respondent's contention that Brink willfully incurred losses by not joining the AFL earlier is considered subsequently herein. Brink testified that he worked until about the middle of November ; there is no contention that his employment terminated prior to the end of the 1946 season. 280 DECISIONS OF NATIONAL LABOR RELATIONS BOARD As to the remaining individuals on "Appendix A" other than Rogers, Head Floorlady DuBraeo's testimony establishes that Iva Taylor, Josephine Satter- lee, Rachel Trautman, and Cecil Ehrlich all applied for employment on April 13, 1946, and were denied such employment because they refused to join the AFL. While Taylor and Trautman shortly thereafter changed their minds ; were cleared by the AFL ; and were employed by the Respondent not long after operations started ; Satterlee and Ehrlich evidently did not work during the 1946 season 66 From the foregoing and the record as a whole , the undersigned finds that, ex- 'cept for Rogers, all of the individuals listed in "Appendix A" applied for em- ployment at the Respondent's plant on April 13, 1946, and that they were denied employment on that day because they were not members of the AFL.64 The undersigned further finds that those individuals on "Appendix A," who' later 'secured employment at the Respondent 's plant during the 1946 season, secured such employment only after they had -joined the AFL and had authorized the Respondent to deduct their dues thereto.66 3. Conclusions as to the agreement ,and the refusals of employment In essence, the Respondent and the AFL contend that the agreement of April 12, 1946, was a valid agreement and hence that individuals who did not obtain clearance through the AFL were properly denied employment in accordance with its terms . This fundamental contention and various 'subsidiary contentions are discussed extensively in the briefs filed by the AFL, the Respondent, and the Board . All of the contentions thus made and the numerous cases cited in said briefs have been ' duly considered .68, The undersigned is satisfied that there are no factors in the instant matter which materially'' differentiate it, on phases now being ' considered, ' from cases already decided which the undersigned be- lieves are controlling., The facts above found show that in the instant matter the Respondent, at a time when a question of representation was unresolved and still pending before the Board , entered into its agreement with the AFL. No evidence was presented -to the Respondent by the AFL 'to show that it then represented a majority of the Respondent's employees.. Clearly the agreement was a-new`one and included substantial new terms requiring membership in the AFL as a condition of em- ployment. Said agreement cannot be considered merely a continuation of a long established contractual relationship between the Respondent and Local 22382. For reasons set forth in detail by the Board in its decision in the Flotill case," concerning an agreement entered into under similar circumstances , the under- signed finds that, by granting exclusive recognition to the AFL while a question of representation was still pending before the Board, and by entering into the ca The question of employment during the 1947 season as to all of the above individuals is considered in "The remedy" in connection with reinstatement. 64 In view of the employment procedure which the record shows was being followed, it is immaterial that some of these individuals applied to King Nor is it material whether lack of membership in the AFL was due to any given individual 's refusal to join or to the AFL's refusal to permit such individual to join 66,It is evident from Quartaroh's testimony that, under the procedure followed , all such employees were required to sign dues deduction authorizations Hence, to secure such employment as they did receive, such individuals had to pay dues to the AFL during their periods of employment in 1946. 66 The undersigned, does not believe that he would be justified in-substantially protracting this report by discussing these matters in detail. 57 Matter of Flotill Products, Inc., 70 N. L. R B 119. See also Matter of Lincoln Packing Company, 70 N. L. R. B. 135; Matter of G. W. Hume Company, 71 N L. R B 533, and Matter of Califruit Canning Company, 73 N. L. R. B. 290. ' • STANISLAUS FOOD PRODUCTS COMPANY - 281 agreement of April 12, 1946, with the AFL requiring membership therein as, a condition of employment, the Respondent interfered with, restrained, and co- erced its employees within the meaning of Section 8 (1) of the Act68 Since the Respondent's execution of the April 12, 1946, agreement was violative of the Act, said agreement, and any renewal or continuation thereof, is illegal and void. Thus said agreement cannot constitute a defense under the proviso of Section 8 (3) of the Act 5e to the Respondent's requiring employees during its 1946 season to join the AFL as a condition of receiving employment. On all of the evidence, the undersigned finds that by its enforcement of the April 12, 1946, agreement, and'by its denial of employment on ApriL13, 1946, to the individuals listed in "Appendix A-1," because they refused to join the AFL,'* the Respondent discriminated in. regard to hire and tenure of employment and terms and conditions of employment and thereby discouraged membership in the CIO and encouraged membership in the AFL, in violation of Section 8 (1) and (3) of the Act.61 - D. The refusal to bargain , 1. The appropriate unit and the CIO's majority therein The Respondent continued to give effect to the above-discussed agreement with the AFL until March 1; 1947. However, prior to that date, the Board took further steps in the Bercut-Richards representation proceeding, which had been pending at the time said agreement had been signed. On August 16, 1946, the Board issued its- Third Supplemental- Decision and Second Direction, of Elections 62 in which it directed numerous elections, one of which involved the employees of the Respondent. Pursuant to the foregoing direction, as amended on August 22, 1946,' a second election was conducted at the Respondent's plant on September 1, 1946.84 On October 2, 1946, the Board issued its Order Severing Case and Certification of Representatives in Case No. 20-R- 1458, in which the Board certified that the CIO was the exclusive representative for the purposes of collective bargaining of all of the Respondent's production and maintenance employees, excluding office and clerical employees and all super- visory employees with authority to hire, promote, discharge, discipline, or other- wise effect changes in the status of employees or effectively recommend such action, by virtue of its designation in the aforesaid election by a majority of the employees in the foregoing appropriate unit.61 '60 In view of findings and recommendations made, below, the undersigned deems it unnec- essary to determine whether the execution of the agreement was violative also of Section 8 (3) of the Act. See Flotill and Hume, cited above. 69 Clearly said-agreement-fails to meet the requirements of the proviso, both because the AFL's majority was not established and because of the Respondent's illegal assistance to the AFL. 00 That those individuals on "Appendix A-1," who were thereafter employed during the 1946 season, were required to join the AFL as a condition of receiving employment is treated herein as a phase of the Respondent's continued enforcement of the agreement. "Appendix A-1" contains the names of all of the individuals shown on "Appendix A," except Julia Rogers , as to whom the evidence does not establish discrimination. a Matter of Fruitvale Canning Company, 71 N. L. R. B. 488, and Matter of Califruit Cammng Company, 73 N. L. R. B. 290. 62 70 N. L. R. B. 84. 61 70 N. L. It. B. 272. 04 While the parties stipulated that said election was held August 30, the Board's certifi- cation recites the date as September 1. 66 The certification shows teat of the 147 valid votes east by the approximately 172 eligible voters, 88 were cast for the CIO and 57 for the-AFL. 282 DECISIONS OF` 'NATIONAL 'LAB'OR, RELATIONS BOARD The'unit for which the Board certified the CIO on `October'2,' 1946, .was the same as the unit found appropriate by the Board in its original Bercut-Richards decision of October' 12, 1945 88 It was also the same as that alleged in the com- plaint in the instant matter. The appropriateness of the unit is not contested by either the Respondent or the AFL. The undersigned'finds that all.of the Re-, spondent's production-and maintenance employees,- excluding office and clerical employees and all supervisory employees with authority to hire, promote, dis- charge, discipline, or otherwise effect changes in' the status of 'employees or effectively recommend such action constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act. The undersigned further finds that on October 2, 1946, and at all times there- after material, the CIO was and now is the duly designated representative of a majority of the employees in the aforesaid appropriate unit, and that by virtue of Section 9 (a) of the Act, the CIO at all such times was and now is the repre' sentative of all of the Respondent's employees in said unit for the purposes of collective bargaining in respect to rates of pay, wages, hours of employment, or other conditions of employment. 2. Developments subsequent to the Board's certification of the CIO a. Events during the remainder of 1946 On October 5, 1946, over the signature ,"Jack Montgomery, International Rep- resentative," the CIO wrote the Respondent, in part, as follows : - / In line with the certification of the National Labor Relations Board estab- lishing FTA-CIO as bargaining agent for the workers of your cannery, we immediately request that you notify us of the time and place at which you can meet with us. - - I also would like to' point out further that officials of the AFL Teamsters Union or any other AFL Uniori have no right to represent the people in your cannery, coerce them 'or intimidate them, and that if they .are allowed to continue to do so, and allowed to continue to enter your plant, then you yourself are a party to-the' act, and in violation of the Wagner Act. The Respondent did not reply to- the CIO's letter of October 5. However, on October 9, Quartaroli wrote the Regional Director of the Twentieth Region that he had received- the-Board's,certificktion of,the-CIO','but-that'he also had=an enforceable contract with- the -AFL which would run to March 1947, with which said certification was in conflict. • Among-other things, Quartaroli asked whether the.Board's order superseded the AFL-contract and constituted "a good and valid defense in a court of .law in breaking such a contract in order to give effect to the Board's order." • 'On October 17, Steve Murdock, an international organizer of the CIO, accom- panied by another organizer, 'Dillard, called on Quartaroli at his office at the plant. Quartaroli acknowledged having received the CIO letter of 'October 5; said that he was uncertain as to his position and had written the Regional Director ; and explained that his local attorney had advised him that he would be liable to a civil suit if he did not continue to honor his AFL; agreement. Mur' dock and Dillard took the position that the Board's certification made the CIO the•ibargaining agent' as, of the! time ,it; was issued,. and that the Respondent was accordingly obligated to bargain with the CIO. Quartaroli said that he wanted to have that point clarified by the Board. 66 64 N. L. R. B. 133. STANISLAUS FOOD PRODUCTS COMPANY 283 On October 22, the Board's Acting, Regional Director for the Twentieth Region wrote the Respondent that, concerning its inquiry of October 9, he could "answer only as to your responsibilities under the,National Labor Relations Act." 'With- out mentioning the AFL agreement, the Regional Director statedi that since the Board had established an appropriate unit and had certified' the, CIO, as the result of, an election therein, it was incumbent upon the Respondent to bargain, with the CIO upon request. On November 4, after Murdock had • telephoned Quartaroli several times to inquire whether he had received a reply to his letter to the Board, Murdock and Dillard again met with Quartaroli, in his office. Quartaroli informed, the CIO representatives that he did not agree entirely with the opinion in the letter he had received from the Board; that he was seeking the opinioniof another at- torney (whom he did not identify) in the "Bay Area" ; and that matters would have to wait until he had obtained an opinion from that attorney. During this conference, the CIO representatives reiterated their positions that the Re- spondent,was;obligated,to bargain with the CIQ. • ; {, . - , On November 7, Murdock and Dillard, accompanied by a'committee of three of the Respondent's employees' met with Sidney Ross, the Respondent's production manager, Quartaroli having "left the previous day for the East." The CIO rep- resentatives proposed, since the Respondent was continuing to give effect to its AFL agreement in spite of the Board's certification of the CIO, that the Re- spondent hold the dues being collected until it had reached a decision as to which bargaining agent it would recognize and that such dues then be paid to the union with which the Respondent finally decided to deal. Ross said that he would check further on that matter with the unidentified attorney in the Bay Area. Thereafter on November 14, during a meeting with Ross, Murdock and Montgomery attempted unsuccessfully to get an answer to their proposal. Ross stated that he was having difficulty contacting the attorney but was expecting to have a definite answer for them by the next day. On November 15, Murdock telephoned Ross, who informed him that the attorney had advised that the Respondent could not, as the CIO proposed, hold the dues which were being deducted. Ross also said that the Respondent was going to continue to give effect to its AFL agreement until its expiration. There- upon Murdock wrote the CIO Regional Office that the only course open appeared to be to file a charge of refusal to bargain with the Board. While the evidence thereon was not fully developed, it is apparent from, it letter dated December 12, 1946, written by Bertram -Edises to Edward H. Moore, that about that date those attorneys (representing respectively the, CIO and the Respondent in the instant matter) discussed the situation concerning the Re- spondent and also another cannery,wherein the CIO had been certified by the Board and in which the parties were likewise represented by Edises and Moore.°` 67 One of these employees was James E Brink, who had been denied employment on April 13, 1946, but had thereafter been given employment after he had joined the AFL. ' It is evident that the above joint discussions, and such joint negotiations as took place later, were with the full consent of the parties and were for their convenience. In fact, the Interim Agreement, signed April 11, 1947, which is discussed below and set out in substantial part in "Appendix E," was signed by Moore as the representative of the Respondent and of one other canning company for which the Board had certified the CIO, the Califrult Canning Company of Manteca,' California, herein called Califruit. See Matter of Califruit Canning Company, 73 N. L. It. B. 290, and previous phases of the Bercut- Richard8 case involving Califruit. There is no contention that any departure from the unit found by-the Board in the cases involving the Respondent and Califruit was intended by any of the parties to the joint negotiations and the joint agreement, and the undersigned is satisfied that the fact that such a joint approach was taken is immaterial to the issues 284 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Copies_ of this letter were sent to the Board's Regional Office and to various officials of the CIO. In said letter, Edises stated that, pursuant to a conversation which he and Moore had had that morning, he was submitting a restatement of the CIO's position, on the basis of Moore's assurance that he had been "officially authorized to represent" the Respondent.89 This letter demanded that the Re- spondent immediately recognize the CIO as the exclusive bargaining agent, pur- suant to the Board's certification ; that the Respondent cease recognizing and dealing with'the AFL and enforcing its agreement therewith ; and that the Re- spondent immediately cease deducting dues, fees, and assessments for the AFL. This letter of December 12 also stated that if the request to cease AFL deduc- tions were ignored, the CIO would "undertake to obtain reimbursement for the employees' through legal action." The Respondent did not indicate a willing- ness to comply with the demands in this letter 70 b. Developments early in 1947 71 Early in March 1947, shortly after the expiration of the AFL agreement on March 1, Murdock asked Quartaroli at his Modesto office about entering into bargaining relations with the CIO. Quartaroli told Murdock to get in touch with Attorney Moore, whose office is in Oakland, California." Murdock informed the CIO's Regional Office of Quartaroli's answer, but did not get in touch with Moore. The complaint in the instant matter was issued on March 17. The Respondent, in its answer filed March 28, offered employment to the 12 individuals herein. Hence, for the sake of simplicity, since most of the negotiations and documents discussed hereinafter were joint in nature and pertained to Califruit as well as to the Respondent, the presentation herein will be limited to what bears directly on the Respond- ent, and the joint aspects will be almost entirely ignored. °O There 'is no contention that Moore did not have such authority. TO It is noteworthy that the above letter was written less than 2 months after the Trial Examiner had issued his Intermediate Report on October 18, 1946, in Case No 20-C-1428 involving Califruit. The Trial Examiner did not recommend in that case that checked-off dues be refunded, among other things, for lack of sufficiency of evidence and because the complaint had failed specifically to allege the matter . The Board's decision of April 10, 1947, confirmed the Trial Examiner on this matter. However, in the meantime, before the Board's decision in the first Califruit case had issued , a hearing was held on December 17, 18, and '19, 1946, at Manteca, California , on another complaint against Califruit before another Trial Examiner, in Case No 20-C-1566 Califruit was represented by Moore, while the CIO was represented by Edises and Murdock . In that hearing , the pleadings were amended specifically to introduce the issue of checked -off dues , the matter was litigated, and the Trial Examiner in his Intermediate Report issued May 19, 1947, recommended that Califruit reimburse its employees for dues checked • off under an agreement which Califruit had signed on April 13, 1946, with the AFL. While the evidence in the case before the undersigned reveals almost identical procedures in checking off dues to the AFL, the issue of checking off dues and reimbursing same was not alleged in the complaint in the instant matter, and was not specifically litigated at the hearing The Board does not urge in its brief that dues checked off be refunded. Clearly the parties to the instant matter were aware of the issue involved in checking off dues to the AFL and failed to raise this issue specifically at the hearing herein. Under all of the circumstances , the undersigned will ignore the question of refunding such dues generally to the Respondent's employees, but will hereafter consider the matter only as it pertains to losses sustained by individuals specifically found to have been discriminated against by the Respondent. 71 During the period now to be discussed, the Respondent 's plant was not in operation. The 1946 canning season ended about November 1946, the 1947 season did not begin until April 11, 1947. 72 In view of the authority which Moore had been given to bargain for the Respondent, it cannot be said that reference by Quartaroli of such matters as bargaining to Moore is any indication of bad faith in bargaining. The administration locally of any agreement reached, however, is a different matter It is sufficient now to state that there is no evi- dence that'Moore has -refused-to meet at reasonable times with the CIO. STANISLAUS FOOD PRODUCTS COMPANY ,285 then named in paragraph 6 of the complaint "at such work as may become avail- able for them and for which they severally be qualified without requiring mem- bership in the A. F. of L. as a condition of such employment." On April 4, 1947, in confirmation of a telephone conversation, Moore wrote Edises that the Respondent's representatives would meet in Modesto with the CIO's representatives at 10 a. in. Friday, April 11, to bargain in accordance with the Board's certification. This letter also stated, immediately before setting out specifically the names of the 12 individuals then listed in paragraph 6 of the complaint (the first 12 names on "Appendix A") : For your records, Stanislaus Food Products Company hereby offers em- ployment to the following persons, without condition other than that work may be available and that they may be severally qualified to perform it. Edises admittedly received the above letter, and there is no evidence that the CIO made any protest at that time as to adequacy of the offer of employment, or any request at that time that the Respondent write individual letters offering reinstatement to the 12 employees, on whose behalf the CIO had filed charges. Before the plant opened on April 11 for the 1947 season,-the Respondent, through seven broadcasts over KTRB, the local radio station in Modesto, advised persons interested in employment of the pending opening of its plant 73 These announce- ments were made on April 8, 9 and 10. On April 8, announcements at 3: 45 and 5: 45 p. in. stated that the Respondent's plant would soon start canning asparagus, and told "cannery workers" to listen for announcements as to the date work would start at three specified times the following day. During a 7: 30 a. in. broadcast on April 9, it was announced that registration for work would start at 7 a. in. on April 10. However, during broadcasts at 3: 30 and 5:45 p. in. on April 9, it was stated that work would not start the following morning as first announced, but that the starting time would be announced over KTRB at 3: 30 and 5:45 the following afternoon. The two announcements thereafter made on Thursday aft- ernoon, April 10, stated that canning asparagus would start Friday, and thift "employees" would start registering at 7 Friday morning. In none of the announcements was any employee mentioned by name. No men- tion was made of any labor organization, nor was it stated whether or not em- ployees-would be required to become members of-any labor organization in order to receive employment. The Respondent used no other general method of in- forming past employees or prospective applicants when operations would start." c. The events of April 11, 191,7; the opening of the plant and the signing of the Interim Agreement On the morning of April 11 , Head Forelady DuBraeo hired all of the women from a crowd of several hundred assembled in front of the plant. DuBraeo read in a loud voice the names of women appearing on two lists . One list consisted of the women who had completed the 1946 season ; the other, of those named in paragraph 6 of the complaint ." The latter list had been given to DuBraeo by Ross, with instructions that she had to give the women thereon work , as they had a case pending before the Board. 73 It has become the custom in the canning industry in the vicinity of Modesto to use radio announcements in matters pertaining to employment 74 The undersigned sees no significance in the uncertainty as to when operations would start, or in the change made in the starting date. in view of-variables- in the canning- industry which influence such matters. 76 The only woman complainant whose name was not read was Bettencourt, who, while not then named in paragraph 6, was named elsewhere 286 DECISIONS OF-NATIONAL, LABOR RELATIONS BOARD As women- responded when their names were read,. DuBraeo checked them off as hired. The list of the women complainants was read several times before women not on either list were hired76 All of the women complainants who were ,present on April 11 and responded when their names were called were given employment. -Through the foregoing procedure, 6 of the 11 women complainants were given employment on April 11, or shortly thereafter." In addition, William Campo- - longo was employed on April 11. There is no evidence of any illegal condition attached to the employment of the 7 complainants who resumed work on April 11 or shortly thereafter. In fact, the Respondent had posted on its bulletin board from, the beginning. of the, current season a notice reading "NO MEMBERSHIP -IN ,ANY LABOR ORGANIZATION REQUIRED TO WORK IN THIS PLANT." ;There has also similarly been posted a letter to the Respondent's employees stating that the CIO is the sole bargaining agent, and that membership in no labor organization is required.78 • . Also, on April-11; as a result of negotiations in Modesto between, representa- tives of the,CIO , and the Respondent,7B which continued throughout a substan- tial part of, that day, an Interim Agreement,80 covering the Respondent's employees in the unit-for;which_the. BoardLhad certified -the CIO, was,signed.on_ April 11,;1947, 'by, ' the; Respondent and the CIO 81 In. addition, to recognition of ,the CIO as the sole, bargaining; agent, the Interim. Agreement provided, upon written authorization by employees, for deduction* of all dues and initiation fees for the CIO. _A grievance procedure was provided,- and the Respondent agreed to furnish the CIO with its seniority list as Current rates were to be continued in effect, pending further negotiations, and other working conditions were to be governed by the Greer Book. The Interim Agreement was to remain in full force and effect pending-further,,negotiations and a formal contract. - During the course of the discussion on April 11, which led to the provision for checking, off dues to the CIO, representatives of the CIO asked Moore, who was serving as the Respondent's spokesman, 'if it also intended to check off dues 76 Murdock, who was present on April 11, testified that the women complainants who were present were bnven empl'oyment`' 'DuBraeo testified that she hired al out'six women, in addition'td the women who responded when their names were called . The testimony .-of DuBrae6 and•Murdock is not in conflict as to the hiring procedure followed on April 11. 77 From his analysis of all of the evidence, particularly the testimony of DuBraeo and Murdock, the undersigned is satisfied that at least Mary Caruso, Josephine Satterlee, Maudle Mae Wyatt, and Maude B. Wyatt were employed on April 11 and that Iva Taylor was employed either on April 11 or shortly thereafter. The undersigned is further satis- fied from credited, testimony of DuBraeo that Rachel Trautman, who was not at the plant on April 11, saw DuBraeo on April 12 ; reported that she was not able to start work for a few days because she had to take care of her daughter-in-law who was having a child ; and, that Trautman later, started to work on the day following the one on which she, re- ported to DuBraed"that she was available for woik. Thus six of the women complainants were employed at or'near the outset of the 1947 season, as early as they themselves were available for employment. 7s The undersigned credits Quartaroli's testimony that such notice and letter have been posted. 79 The Respondent was represented by Moore and Quartaroli and the CIO by Murdock and Montgomery, among others. ` 8° The substantive provisions thereof are set out in full in "Appendix E." 81 As is explained above, the negotiations and the agreement were joint in nature, in- volving both the Respondent and Califruit, which are not financially connected but were both represented by Moore. Two representatives, of the CIO signed the agreement, and Moore signed it for both companies. • sz Such , seniority list was being prepared at the time of the hearing ; ,it had not been delivered to'the CIO. STANISLAUS FOOD PRODUCTS COMPANY 287 for the AFL. Moore replied that if such requests were made by individual employees, such requests would be honored and such employees' dues would be checked off to the AFL. The CIO emphatically took the position that such a procedure did not constitute full recognition of the 010, or bargaining with it in good faith. The CIO also contended that as the bargaining agent certified by the Board, it was the only union for' which the Respondent could agree to check off dues.' Neither the Respondent nor the CIO0 would, recede, from its position on this point. Also during this conference and apparently a later one, the CIO asked for and the Respondent consistently refused provisions for manda- tory dues deductions and for a closed shop .8' d. Relations between the Respondent and the CIO' after April 11, 1947 The Respondent and the CIO have since pursued' their' relations initiated at the above meeting of April 11. A second conference was' held' on April 18 in 'Oakland. At that time, among other, things, the parties reiterated their posi- tions as to the' Respond'ent's' willingness' to' check off' AFL dues if' requested to do so by any individual employee. On April 25, a meeting lasting 2'hours or more was held at Modesto at which "a considerable number" of matters were discussed.` At this meeting, the CIO was represented by'several individuals, among them, Murdock, Montgomery, and Pat Verble, an international organizer. During the course of negotiations on April 25, it was agreed that - "the, matter of the establishment of mutually satisfactory rates , of pay and other matters directly affecting labor costs would be deferred until a contract" had been agreed upon between the CPG and the AFL.86 On the evening of, May 5, after the first day of the hearing before the undersigned,, Murdock and Moore had a brief discussion concerning a satisfactory date for the next conference on wages and other matters 87 In addition' to the above conferences, the CIO has written certain letters to the Respondent. One letter, dated April 22 -and addressed to Quartaroli, per- tained, among other things, to the reinstatement of James E. Brink. It asked the Respondent to determine whether Brink had worked 60 percent of the 1944 season in order to determine whether his army service would hold his seniority. This letter also stated that Brink' s name had been omitted from the list which as It should be noted that the Respondent did not take the position ' that it would' check off AFL dues upon the request of the AFL, but rather upon the request of any individual employee, and that the Respondent has not actually checked off such dues for the AFL. ' " It is possible that such provisions were first sought at some later conference, but in any event it is clear that the Respondent has consistently been' unwilling to give either provision to ,the CIO; although the 1946 agreement gave the AFL" what was sub- stantially - a closed shop. It is 'also evident that thefclearance procedure followed' in connection with the 1946 AFL agreement operated in such a'way ' as'to provide the AFL with mandatory dues deductions. "' I ' Moore had met briefly on the preceding day with representatives of the CIO In its office in Modesto. 86 Execution of such a contract was expected shortly. ' 97 Murdock so testified on the second day of the hearing. In its brief , the Respondent states that an "investigation of negotiations conducted since the hearing of this case would show that further meetings were held on May 13, May 22, May 29, June 6, June 12, and June 18," and also comments on the extent to which agreement ' allegedly has been reached since the hearing . Whatever may have transpired since the close of the hearing, the undersigned is satisfied, on the record made at said' hearing, that negotiations had not been broken off by the parties and that both the Respondent and the CIO were expecting to engage in further bargaining conferences. ' ' 288 DECISIONS- OF NATIONAL LABOR RELATIONS 'BOARD the CIO contended should be reinstated "only because of an oversight, which we shall attempt to rectify at once."" _ Another letter, dated May 21 and addressed to Moore, pertained, among other things, to various "Stanislaus Grievances." . It requested that Brink be given immediate employment, with back pay from "the, start of the asparagus season." Concerning the Respondent's "promise" to offer employment to the 12 individuals named in the complaint,"' this letter read as follows : We charge the Stanislaus Company with failure to live up to its promise to offer reemployment to'a number of 8-3's. A general radio broadcast one evening and the calling of the workers' names in the front of the plant the next morning constituted the only notice given by the company. No letters were written the 8-3's. Only if they happened to be listening to the radio or had been in contact with the cannery would they have known of the starting date. We say this was insufficient notice and demand the Company offer reemployment to the following persons in writing : Marie Amador, Julia Rogers, Maudie Mae Wyatt, Rachel Trautman, Helen Maddeford, Ada Powell, Iva Taylor. We also demand that they be given full pay from the start of the asparagus season because of the Company's failure to make proper notice. One further major matter which has entered into the negotiations repeat- edly 90- and" which- has complicated relations .between the Respondent. and the iCIO on several,occasions, is the Respondent's refusal to permit representatives of the CIO to enter the plant during working hours. Previously the Respondent had permitted representatives of the AFL to enter the plant to see employees. during working hours and had never refused any request from a representative of the AFL for such access?' However, in its relations with the CIO, the Respondent has uniformly denied all requests that it agree to permit 'CIO repre- sentatives to enter the plant to see employees while at work. The Respondent has been willing only to permit CIO representatives to go into the plant when it was not operating. The 'CIO, in demanding access to the employees during working hours, has informed `the Respondent that it is representing .the people and not the machinery." 88 It was not until the opening of the hearing that the complaint was amended to include an allegation as to Brink. 8D, The issue as to when, if ever,, an adequate offer of reinstatement was made is consid- ered below in the section entitled "The remedy." s" It is not possible to tell fiom the testimony at, which meetings the matter now,.to• be considered was discussed, but the position-taken by the parties thereon is clear. _ 91 According to witnesses for the Respondent and the AFL, whenever an AFL representa tive desired to see employees in the plant during working hours, he would,secure permis- sion at the office before entering Assuming this to be so, the undersigned is satisfied that such permission was never refused. In fact, as Quartaroli testified, King had even .been permitted to use an outer office adjoining Quartaroli's private office. 92 Murdock testified credibly that the Respondent's position on this matter had "very definitely" affected the operation of the steward system and the grievance procedure, as employees did not believe that the CIO had been recognized, and would ask why its repre- sentatives could not come into the plant to handle their grievances, if it bad, in fact, been recognized. Murdock testified that the CIO representatives have been unable to answer that question. While the undersigned accepts the testimony of witnesses for the Respondent that a copy of the Interim Agreement has been posted on the plant bulletin board, it was clear from the complete unfamiliarity with the agreement displayed by Head Forelady DuBraeo on the witness stand,, that tlfe',,grievance.procedure contained therein had not Begun to operate, at least with any degree of efl6iency. _ ' STANISLAUS FOOD PRODUCTS COMPANY 289 The relatively unstable nature of the relations between the Respondent and the CIO which eventually had been initiated on April 11, some 6 months after the Board had certified the CIO, and which had had less than a month to gain equilibrium at the time of the hearing, was illustrated at the hearing, both by the attitude displayed by witnesses, and by testimony concerning certain events transpiring after April 11. To illustrate, on April 29, when Verble called, at the Respondent's office to lodge a protest against what she understood to be AFL activities in the plant," the office manager refused to give her a sheet of paper on which to write her protest, as Quartaroli, who apparently took care of all matters pertaining to the CIO, was not there at the time."- Again, on May 5, the first day of the hearing, Verble,accompanied,by Dillard, who had formerly been a CIO organizer, entered the Respondent's plant, with- out attempting to secure permission at the office to do so." According to Verble, she went into the plant because she had received reports that activities on behalf of the AFL were taking place inside the plant. After she had gone only a short distance into the plant, Verble was stopped by the,watchman, who took her by the arm. Thereupon an altercation ensued, which was observed by Pro- duction Manager Ross, who recognized Verble as being connected with the CIO. Ross made no attempt to find out what Verble wanted,96 but had the local police called. Upon the arrival of the police, Verble and Dillard left the plant, after arrest had been threatened if they refused to do so.9' While the undersigned does not condone Verble's action, whatever she may have believed to have been its justification, in entering the Respondent's plant under conditions which techni- cally appear to have constituted trespassing, this unfortunate incident is pre- vented for the light which it sheds on the extent to which relations between the respondent and the CIO lacks stability at the time of the hearing. One further matter should be noted in connection with the period now under consideration. From the beginning of the 1947 season, the Respondent has had, for the first time since it started operations, written employment rules which ,have been posted on the plant bulletin board. These rules were issued and signed by Quartaroli on April 7, before any collective bargaining meeting had taken place with the 010, and on their face appear in several respects to be unduly harsh 88 It is particularly noteworthy that Rules 8 and 9, which pro- hibit solicitation and the distribution of literature on company property, appear, in the absence of special circumstances, to be violative of the Act, under a long 93 No finding is made that there were any such activities , either on that date or on May 5, at the time of an incident discussed hereinafter. 91 Almost 2 weeks earlier, on April 16, Murdock and Verble had called at the plant and had been unable to find anyone there who would give them any information, in the absence of Quartaroli. 96 Quartaroli was then at the hearing , and Verble assumed that there was no possibility of securing such permission from anyone in the office. 9s Nor did DuBraeo who was present also 97 The undersigned believes it unnecessary to attempt to determine, from the highly con- tradictory testimony thereon, other details as to what transpired during Verble's brief visit to the plant on May 5. However, the undersigned is satisfied from his study of all of the evidence that the above findings, accurately state the general nature of what transpired. "The testimony as to why these rules were posted was not persuasive, and the under- signed sees no circumstances during the current season , in contrast to previous seasons, which would require the posting of these rules , which are set out in full in "Appendix F." 290 DECISIONS OF NATIONAL LABOR RELATIONS BOARD line of Board decisions. However, there is no allegation in the complaint con- cerning these rules, which were introduced in evidence during the Respondent's case, upon cross-examination by the 010 of a witness called by the Respondent. In addition, the Board makes'no contention that these particular two rules, or any of the other rules, are in themselves violative of the Act, but refers to the rules in its brief only in connection with the refusal to bargain. Further, what- ever special justification, if any, there may have been for these rules, cannot be said to have been specifically and fully litigated at the hearing. Under the circumstances, the undersigned makes no finding that any of these rules, as such, are violative of the Act, but considers the rules as they relate to the question of bargaining relations. 3. Conclusions as to the refusal to bargain 'In essence; the Respondent contends in' its'brief'that it, refused to bargain with the'CIO until the expiration'of what it believed was a valid agreement with the AFL' ; that 'it has since bargained with the CIO on April •11; 1947, when' the' Interim Agreement was negotiated and executed ; that it has also bargained upon several occasions thereafter ; and that if a refusal to bargain in violation of the Act in the fall of 1946 were to be found, any order now, in the light of the subsequent developments, requiring the Respondent to bargain with the CIO "could not be justified except as a punitive measure." In contrast, the Board iri'its brief contends that the existence of the AFL agree- ment cannot justify the Respondent's refusal to bargain; that the Respondent "refused to bargain with the 'C. I. O. from October 5, 1946, to April '11, 1947" that the' Respondent's past conduct "in flouting the Board's authority, as well as its present conduct in its bargaining with the 'C. I. 0.1 constitute a threat that the respondent may again refuse to bargain with the C. I., O." ; and that the usual 8 (5 )`order order should be reconimended. The facts hereinabove found show that the Board certified the CIO on October 1946; that on October 5, 1946, and upon several occasions thereafter, the CIO sought recognition and bargaining relations with the Respondent ; and that the Respondent refused to recognize and to deal with the CIO until the expiration of its agreement with the AFL' in March 1947. Whatever the Respondent's belief may have been as to the validity of its agreement of April 12, 1946, with the AFL, that agreement cannot excuse the Respondent's clear refusal to recognize and to bargain with the CIO, after the Board's certification of October 2, 1946. Said agreement was entered into when the Respondent was well aware that a question concerning conflicting claims of representation was pending before the Board. Thus the agreement itself constituted illegal assistance to the AFL, and cannot justify the Respondent's, admitted refusal to bargain with the CIO during the existence of said agreement. 1 1 As to developments beginning with April 11, 1947, the crux of the problem, in the opinion of the undersigned, is whether the Respondent's plainly established refusal to bargain has been cured, and the effects thereof dissipated, by the rela- tionship between the Respondent and the CIO, initiated the day of the signing of the Interim Agreement and continuing thereafter on an unstable basis, as shown by the facts above found. The undersigned believes that, considered in its totality and in the light of the treatment which the Respondent previously had STANISLAUS FOOD PRODUCTS COMPANY 291 accorded the AFL,B9 that relationship cannot be said to have liquidated the Re- spondent's refusal to bargain. i The obligation to bargain is a continuing one and contemplates the realization, through the process of negotiating in good faith, of a working relationship be- tween employers and the representatives of their employees. A long and clearly evidenced refusal to bargain, accompanied by other unfair labor practices, cannot he dissipated in the minds of employees merely by taking the first steps in the bargaining process.. Where, as here, there-has been such an obvious refusal to bargain, continuing over such a substantial period of time, and accompanied by such- clear interference and discrimination, it cannot be said that this recently initiated and as yet unstable relationship between the Respondent and the CIO constitutes sufficiently conclusive evidence of bargaining in good faith to remedy the Respondent's unfair labor practices and to dissipate the effects thereof. However, the usual order that the Respondent bargain should be modified somewhat, since the.facts show that negotiations have. been entered into. At the time of the hearing, those negotiations had not reached an impasse but were in- complete and continuing. While the evidence as to these negotiations, in - the undersigned's judgment, does not warrant finding that the Respondent has again refused to"bargain by positions which it has taken, the evidence leaves, doubt as to the Respondent's good faith in taking certain positions.100 In-the light, of the entire record, it is the undersigned's considered opinion that, in order to remedy-the Respondent's unfair labor practices and effectuate the pur- poses of the Act, continuation of the 'bargaining process must be assured in the instant matter. Accordingly„it will be recommended below that the Respondent continue to bargain with the CIO. In the,light of allfof the foregoing, the undersigned finds that from on or about October 5, 1946, until on or about April 11, 1947, the Respondent refused to recog- nize the CIO and to bargain collectively therewith, as the exclusive representative of its employees in an appropriate unit, and thereby interfered with, restrained, and coerced its employees in the exercise of rights guaranteed in Section 7 of the Act. The undersigned further finds that the conduct of the Respondent begin-, ping on or about April 11, 1947, and continuing thereafter has not dissipated and cured the effects of the Respondent's unfair labor practice in refusing to bargain with the CIO, and that said unfair labor practice can best be cured by ordering the Respondent to continue to bargain in good faith with the CIO. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The undersigned finds that the activities of the Respondent set forth in Sec- tion III, above, occurring in connection with the operations 'of the Respondent • s° Due consideration has been given to the evident economic strength of the AFL, which, the Respondent may well have feared. 100 That such positions may be changed during the course of further bargaining is evident. The undersigned does not deem it necessary to analyze the various points in issue between the -CIO and the Respondent to indicate under what circumstances certain positions taken by the Respondent might constitute refusal to bargain. The undersigned does feel con- strained, however, to state that he has been almost persuaded that the Respondent's failure to offer a constructive proposal as to some reasonable basis upon which representatives of the CIO may enter its plant during working hours in connection with grievances con- stitutes refusal to bargain. However, he has not made such a finding, partly because of the relatively short period during which negotiations had been in progress at the time of the hearing. On the other hand, the position taken by the Respondent on,the closed-shop issue cannot be said to constitute evidence of refusal to, bargain.- - ' 292• DECISIONS, O1 ,.NATIONAL . LABOR RELATIONS BOARD 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 four;d that the Respondent has engaged in certain unfair labor prac- tices; the undersigned will recommend that it cease and desist therefrom, and take certain affirmative action designed to effectuate the policies of the Act. -'Having found that the Respondent refused to recognize and to bargain col- lectively with the CIO as the exclusive representative of its employees, in an appropriate unit from October 5, 1946, to April-11, •1947, and that the Respond- ent's relations with the CIO on and after April 11, 1947, have not dissipated the effects of, its prior unfair labor practice in so refusing, the undersigned will recommend that' the Respondent cease and desist from refusing to bargain col- lectively with the CIO ; continue to bargain collectively with the CIO ; and, if an understanding is reached, embody such understanding in a signed agreement'01 ' It has'been'found that the Respondent discriminated in regard to the hire and ten'urd1bf employment of Diana A. Bettencourt by discharging her on September, 5,A945, and thereafter refusing to reinstate her because she refused to maintain, her membership in the AFL. }' It has further been found that the Respondent discriminated in regard to the hire and tenure of employment of the individuals named in "Appendix A-1" by refusing to employ them on April 13, 1946, because they refused to join the AFL. Further, the Respondent, by continuing to require membership in the AFL as a condition of employment during the 1946 canning season, imposed a discrimina- tory condition upon those -individuals on "Appendix A-1" who later obtained work with the Respondent in 1946. Thus while the facts show that, after April 13, certain of the individuals on "Appendix A-1" joined the AFL and were em- ployed for various periods of time during the remainder of the 1946 season, such, employment, conditioned as it was upon a discriminatory requirement, does not constitute substantially equivalent employment!" Nor is there any merit in the Respondent's contention that any individual who failed to clear promptly through the AFL, but did so later in 1946, and who could have received employment ear- lier had he been willing to clear earlier With the AFL, thereby willfully incurred losses because he failed to clear with the AFL at the earliest possible date.103 To require any employee to submit to'an illegal condition of employment, like join- ing and paying fees to a union not of his own choosing, in order to mitigate the losses, of the very employer imposing that illegal condition, would thwart the purposes of the Act. Similarly, it would not effectuate the purposes of the Act to permit the Re- spondent to deduct the full earnings of individuals on "Appendix A-1," who re- turned to the Respondent's employ during the 1946 season after joining the AFL, 101 Cf. Matter of Oliver Corporation, 74 N L. R B 483 Such 1946 employment as Helen Maddeford received was as an hourly worker, at less pay than she normally received as a pieceworker; this change was due to delay in receiving clearance from the AFL. On the other hand, that Maddeford quit work in July 1947 because of illness, and that, even if employed, Mary Caruso would have quit in the fall of 1946 (as was her custom) to pick grapes for herself, are not chargeable to the Respond- ent's unfair labor practices. • 103 While the issue was raised at the hearing specifically with respect to Brink (who joined the AFL in July 1946 and was thereupon employed ), the undersigned treats this contention of the Respondent as a general contention. STANISLAUS FOOD PRODUCTS COMPANY 293 since those employees were required to make payments to the AFL against their wishes in order to receive such employment. Hence, in order effectively to remedy the Respondent's discrimination against such individuals, such sums as were paid to the AFL by said employees, in order that they might secure employ- ment at the Respondent's plant during the 1946 season, should be deducted from the earnings of such individuals , because such payments were expenses incurred in working for the Respondent which would not have been incurred but for the Respondent's unfair labor practices. The Board contends that the Respondent should offer employment to all 14 of the individuals named in "Appendix A." The Respondent contends that it has offered employment to the 12 individuals originally named in paragraph 6 of the complaint, and also to Brink. Admittedly Bettencourt has never been offered reinstatement. During the hearing on May 7, 1947, Murdock acknowledged on the record that Attorney Moore had informed him that Brink was being offered reinstatement to his former position. The evidence shows that the 12 individuals originally named in paragraph 6 of the complaint were unconditionally offered employment. This was done in the letter of April 4, 1947, which the Respondent wrote the CIO before the plant opened on April 11. The names of said individuals were called out on April 11 when employees were being hired ; those who re- sponded were given work. Seven of the twelve, William Campolongo, Mary Caruso, Josephine Satterlee, Iva Taylor, Rachel Trautman, Maudie Mae Wyatt, and Maude B. Wyatt, were employed, either on April 11, or as soon thereafter as they were available for employment . As to the others, the evidence does not establish discrimination as to Julia Rogers. The remaining 4, Marie Amador, Cecil Ehrlich, Helen Maddeford, and Ada Powell, were not working for the Respondent at the time of the hearing ; none had appeared at the plant on April 11, 1947. There is no persuasive evidence that any of the 4 had failed to learn of the Respondent's offer of reinstatement, or that any had attempted to secure employment.109 During the 1947 season , the Respondent has' made no illegal requirement as a condition of employment . Further, the Respondent's uncondi- tional offer in writing, made a week before the plant resumed operations, was made to the labor organization which had filed the charge on behalf of the 12 individuals. Everything considered, the undersigned is satisfied that the Respondent has made valid offers of reinstatement to all of the individuals on "Appendix A-1," except Bettencourt. Therefore, except for Bettencourt, it will not be recom- mended that the individuals on "Appendix A-1" be offered reinstatement. The undersigned will recommend, however, that the Respondent offer Bettencourt immediate and full reinstatement to her former or substantially equivalent position,106 without prejudice to her seniority or other rights or'privileges. The undersigned will further recommend that the Respondent make Bettencourt and the other individuals listed in "Appendix A-1" whole for any loss of pay they may have suffered by reason of the Respondent's discriminations against 10I Maddeford testified that she did not attempt to secure employment ; the testimony of Powell and Amador is silent on this matter ; and Ehrlich did not testify . The under- signed is satisfied from the testimony of DuBraeo and Murdock that Amador, Ehrlich, and Powell did not apply for employment. IDS In accordance with the Board 's consistent interpretation of the term , the expression "former or substantially equivalent position " is intended to mean "former position wherever possible, but if such position is no longer in existence , then to a substantially equivalent position," See Matter of The Chase National Bank of the City of New York, San Juan, Puerto Rico, Branch, 65 N L R B 827. 809095-49-vol 79--20 1 294 DECISIONS OF NATIONAL LABOR RELATIONS BOARD them, by payment - to each of a sum of money equal to the amount he normally would have earned as ' wages during the 'period from the date of the above-found discrimination against him to the date of the Respondent's offer of reinstate- ment, less :his net earnings during , said period.10' Should the Respondent 's plant, because of, the seasonal nature of the canning industry , not be'inn operation at the time Bettencourt is offered reinstatement , her reinstatement should become effective ,at the opening of the -next season . Since the Respondent's operations are seasonal, no back pay will have accrued to any of the individuals on "Appen= dix A-1" during periods when they normally Would not have worked for the Respondent. Hence, any earnings received for work performed elsewhere by said' employees during such periods when they normally would not have been working for the Respondent should not be deducted as part of 'net earnings. Having found that the Respondent unlawfully assisted the AFL and dis- couraged membership in the CIO , by recognizing the AFL and by entering into the agreement- of April 12, 1946; therewith,'it will be recommended' that the Respondent cease giving effect to said 'agreement, or to any extension, renewal, modification , or supplement thereof , or to 'any superseding agreement with said Union, or any affiliate thereof,107 unless and until same has been certified' by the 'Board as 'the ' representative of the Respondent 's emplgyees10B Nothing herein, - however, shall be construed as requiring the Respondent to vary wages, hours'of-'' employment , rates'of pay, seniority, or other substantive features in- its relations with the employees themselves , which the Respondent has estab- lished in the performance of said agreement, or to prejudice the assertion by employees of any rights they may have thereunder. Upon the basis of the above findings of fact, and upon the entire record -of the case, -the undersigned makes the following : r CONCLUSIONS OF, LAW 1. Food, Tobacco, Agricultural & Allied Workers Union of America , affiliated with -the Congress of Industrial Organizations, and California State Council of Cannery Unions , Cannery Workers ' Union , Local 748, International Brotherhood, of Teamsters , Chauffeurs, Warehousemen and Helpers of America , affiliated with the American Federation of Labor, are labor , organizations, within the meaning of Section 2 (5) of the Act. 2. By discriminating in 1945 in regard to the hire and tenure of employment of Diana A. Bettencourt, and by discriminating in 1946 in regard to the hire and. tenure of employment of the individuals named in "Appendix A-1," attached hereto, thereby encouraging membership in California State Council of Cannery Unions, Cannery Workers' Union , Local 748 , International Brotherhood of Team- sters, Chauffeurs, Warehousemen and Helpers of America , affiliated with the 106 Matter of Crossett Lumber Co ., 8 N L. R. B 440, 497-498. - 107 This includes Local 22382, should it again seek to represent employees of the Respondent. 108 The undersigned does not consider this issue moot, although the contract appears to have expired It should be noted that toward the close of the hearing, counsel for the AFL stated that a charge dated May 3, 1947 , had been 'mailed to the Board's Regional Office alleging that the Respondent was engaging in unfair labor practices because it had "com- menced to bargain" with the CIO. STANISLAUS FOOD PRODUCTS COMPANY 295 American Federation'of Labor, and thereby also discouraging membership in Food, Tobacco, Agricultural & Allied Workers Union of America, affiliated with the Congress of Industrial Organizations, the Respondent has engaged in and is engaging in unfair labor practices; withinf the meaning of =Section 8 (3) of the Act. 3. All of the Respondent's production and maintenance employees, excluding office and clerical employees and all supervisory employees with authority to hire, promote, discharge, discipline, or otherwise effect changes in the status of em- ployees or effectively recommend such action, constitute a unit appropriate for the purposes of collective bargaining, within the meaning of Section 9 (b) of the Act. 4. Food, Tobacco, Agricultural & Allied Workers Union of America, affiliated with the Congress of Industrial Organizations, was on October 2, 1946, has been at all times thereafter and now is the exclusive representative of all of the Respondent's employees in the aforesaid unit appropriate for the purposes of collective bargaining, within the meaning of Section 9 (a) of the Act. 5. By refusing on or about October 5, 1946, and at all times thereafter until April 11, 1947, to recognize and to bargain, collectively witli' 'ood,'Tobacco, Agri= cultural & Allied Workers Union of America, affiliated with the Congress of Indus- trial Organizations, as the exclusive representative of all of its employees in the aforesaid appropriate unit, the Respondent has engaged in unfair labor practices, within the meaning of Section 8 (5) of the Act. 6. By interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, the Respondent has engaged in and is engaging in unfair labor practices, within the meaning of Section 8 (1) of the Act. 7. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2 (6) and (7) of the Act. 8. The Respondent has not engaged in the unfair labor practice alleged in the complaint with respect to Julia Rogers. RECOMMENDATIONS Upon the basis of the foregoing findings of fact and conclusions of law, the undersigned recommends that the Respondent, Stanislaus Food Products Com- pany, successor to R. J. Quartaroli, d/b/a Stanislaus Canning Company, Modesto, California, its officers, agents, successors, and assigns shall : 1. Cease and desist from: (a) Refusing to bargain collectively with Food, Tobacco, Agricultural & Allied Workers Union of America, affiliated with the Congress of Industrial Organiza- tions, as the exclusive representative of its employees in the unit heretofore found appropriate with respect to rates of pay, wages, hours of employment, or other conditions of employment ; 100 (b) Recognizing California State Council of Cannery Unions, Cannery Work- ers' Union, Local 748, International Brotherhood.of Teamsters, Chauffeurs, Ware- housemen and Helpers of America, affiliated with the American. Federation of Labor, as the exclusive representative of its employees for purposes of collective bargaining, unless and until such organization shall have been certified by the National Labor Relations Board as the exclusive representative thereof ; X09 Matter 4 Oliver Corporation, 74 N. L. R. B.'483. 296 DECISIONS OF 'NATIONAL LABOR RELATIONS BOARD (c) Giving effect to its agreement of April 12, 1946, with California State Council of Cannery UniQns, Cannery Workers' Union, Local 748, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, affiliated with the American Federation of Labor, or to any extension, renewal, modification, or supplement thereof, or to any superseding agreement with said labor organization, or any other labor organization which is an affiliate thereof,"' unless or until such organization shall have been certified by the National Labor Relations Board as the representative of the Respondent's employees. provided that any such extension, renewal, modification, or supplement of said agree- ment or any superseding agreement shall conform to the provisions of the Na- tional Labor Relations Act, as amended, and provided further that the Re- spondent in complying herewith shall not be required to vary the wages, hours of employment, rates of pay, seniority or other substantive features of the em- ployment relationship established by its agreement of April 12, 1946: 111 (d) ' Discouraging membership in Food, Tobacco, Agricultural & Allied Workers Union of America, affiliated with the Congress of Industrial Organizations, or any other labor organization of its employees, by discriminatorily discharging or re- fusing to reemploy, by discriminatorily refusing employment, by maintaining discriminatory conditions as to employment, or by discriminating in any other manner in regard to hire or tenure of employment, or any term or condition of employment ; (e) Encouraging membership in California State Council of Cannery Unions, Cannery Workers' Union, Local 748, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, affiliated with the Ameri- can Federation of Labor, by discharging or refusing to reemploy any individual for refusing to maintain membership therein, by requiring membership therein as a condition of employment, or by giving preference as to hire or tenure of employment or any term or condition of employment based on membership there- in, except as such preference shall have been established by agreement valid under the provisions of the National Labor Relations Act, as amended ; (f) In any like or related manner interfering with, restraining. or coercing its employees in the exercise of their right to self-organization, to form, join, or assist Food, Tobacco, Agricultural & Allied Workers Union of America, affiliated with the Congress of Industrial Organizations, or any other labor organization, to bargain collectively through representatives of their own choos- ing 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 following affirmative action, which the undersigned finds will effectuate the policies of the Act: (a) Offer Diaila A. Bettencourt immediate and full reinstatement to her former or substantially equivalent position, without prejudice to her seniority and other rights and privileges, in the manner set forth in "The remedy" ; (b) Make whole, in the manner set forth in "The remedy," the individuals whose names appear in "Appendix A-1" for any loss they may have suffered by reason of the Respondent's discrimination against them ; (c) Withdraw and withhold all recognition from California State Council of Cannery Unions, Cannery Workers' Union, Local 748, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, ailiated.with 119 See footnote 107, above. 111 Nothing herein shall be construed as prejudicing the assertion by the employees of any right they may have under said agreement. STANISLAUS FOOD ' PRODUCTS COMPANY - 297 the American Federation of Labor, as the exclusive representative of its em- ployees`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 organization shall have been certified by the National Labor Relations Board as the exclusive representative of its employees in an appropriate unit ; (d) Continue to bargain collectively with Food, Tobacco, Agricultural & Allied Workers Union of America, affiliated with the Congress' of Industrial Organiza- tions, as the exclusive representative of all of its production and maintenance employees, excluding office and clerical employees and all supervisory employees with authority to hire, promote, discharge, discipline, or otherwise effect changes in the status of employees or effectively recommend such action, and if an'under- standing is reached, embody such understanding in a signed agreement ; (e) Post at its plant and warehouse at Modesto, California, copies of the notice attached hereto marked "Appendix G." Copies of said notice, to be furnished by the Regional Director for the Twentieth Region, as agent for the Board, shall, after being duly signed by the Respondent's representative, be posted by the Respondent immediately upon the receipt thereof and maintained by it for a period of 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 such notices are not altered, defaced, or covered by any other material; (f) Notify the Regional Director for the Twentieth Region, as agent for the Board, in writing, within twenty (20) days from the date of the receipt-of this Intermediate Report, what steps the Respondent has taken to comply herewith. It is further recommended that unless on or before twenty (20) days from the, date of the receipt of this Intermediate Report, the Respondent satisfies the afore- said agent of the Board, that it has complied or will comply with the foregoing recommendations, the National Labor Relations Board issue an order requiring the Respondent to take the action aforesaid. - It is also recommended that the complaint be dismissed as to Julia Rogers. Section 203.46 of the Rules and Regulations of the National Labor Relations Board, Series 5, effective August 22, 1947, provides, among other things, that any party may, within twenty (20) days from the date of service of the order transferring the case to the Board, pursuant to Section 203.45 of said Rules and Regulations, file with the Board, Rochambeau Building, Washington 25, D. C., an original and six copies of a statement in writing setting forth such exceptions to the Intermediate Report and recommended order or to any other part of the record or proceeding (including ru'li'ngs uU6n,,aif'motions'or'"objections) as-he relies upon, together with the original and six copies of a brief in support thereof ; that any party may, within the same period, file an original and six copies of a brief in support of the Intermediate Report and recommended order ; that immediately upon any such filing, the party filing same shall serve a copy .thereof upon each of the other parties; that no matter not included in a State- ment of Exceptions may thereafter be urged before the Board, or in any further proceedings ; and that, 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. Section 203.48 of the Board's Rules and Regulations provides that, in the event no Statement of Exceptions-is filed, the findings, conclusions, and recommended order herein contained shall be adopted by the Board and become its-findings, 298 DECISIONS OF NATIONAL LABOR RELATIONS BOARD conclusions and order, and that all objections and exceptions thereto shall be deemed waived for all purposes. EARL S. BELLMAN, Trial Exan"ner. Dated September 30, 1947. APPENDIX A Individuals named in paragraph 6 of the complaint, as amended : Marie Amador William Campolongo Mary Caruso Cecil Ehrlich Helen Maddeford Ada Powell Julia Rogers Josephine Satterlee Iva Taylor Rachel Trautman Maudie Mae Wyatt Maude B. Wyatt James E. Brink Diana A. Bettencourt APPENDIX A-1 Individuals to be made whole for losses : Marie Amador William Campolongo Mary Caruso Cecil Ehrlich Helen Maddeford Ada Powell Josephine Satterlee Iva Taylor Rachel Trautman Maudie Mae Wyatt Maude B. Wyatt James E. Brink Diana A. Bettencourt - - APPENDIX B Section 3 of the Green Book, entitled PREFERENCE OF EMPLOYMENT AND HIRING PRACTICES, reads in part as follows : (a) It Is recognized that the refusal of Union members to work with non- union employees who are within the jurisdiction of the local Union shall not constitute a violation of this agreement, provided, however, that before any strike action, job action or other direct action is taken on this account, the local Union will submit the matter for adjustment as provided in Section, 8 hereof. [ADJUSTMENT OF GRIEVANCES] In order to aid in the prompt ad- justment of such matters, the Union shall furnish its members with a clear- ance card, dues book or other evidence of paid-up membership, and when employees who are on the seniority lists, as defined in Section 9 [SENIORITY] hereof, are called to work, the Employer will request that such evidence be presented by those who have it, and will keep a record, which will be available to the Union, of all employees who do not present such evidence. Similarly the Union will from time to time, when such information is available, notify the Employer of the names of delinquent or suspended members, or other non- union employees, according to Union records. The Employer shall be the sole judge of the qualifications of all of its employees, subject to appeal as provided In Section 8 hereof, but in the selection of new employees the Employer will give preference of employment to unemployed members of the local union, provided they have the necessary -STANISLAUS FOOD - PRODUCTS- COMPANY 299 qualifications and are available when new employees are to be hired., "New Employees", for the purpose of this agreement, are-defined to be . persons who are not on the seniority list of the hiring plant, as defined in Section 9 hereof, even though they may have been employed previously by said plant. As a basis for preferential consideration as new employees as aforesaid, un- employed members of the local union shall be required to present a clearance card from the local union, evidencing the fact of their paid-up membership. '[The final three sentences of the second paragraph of. Section 3 (a), which are shown in the Green . Book in-brackets , were modified in 19,43 because of a "critical , man power shortage existing in California," and are not, material to any issues herein.] APPENDIX ,C The.provisions of-the agreement entitled, DUES COLLECTIONS AND-CHECK-OFF, signed August 19, 1943, between the Respondent and Local 22382, were as follows: The Company hereby agrees to deduct from the pay of each - employee employed by the Company who is covered by this agreement: all Union; dues and, assessments , and for this purpose the , Union shall provide the Com- pany, on or before the first day of each month, the amount of dues payable per month to the Union by each member. Said dues shall ' tie deducted from the pay check of the employed on any payday that falls on a day following performance of five days' work by the employee in any calendar month. The Company will promptly notify all employees of these conditions by placing an appropriate statement thereof on the bulletin board in the plant of the Company. If any new assessments shall be levied as against the members of the Union employed by the Company , such assessments must first be approved by the Union and notice thereof given to the Company before such assess- ments can be deducted from the salary of the employees - by. the Company. Any sums deducted by the Company for the benefit of the Union .shall be remitted to the Secretary-Treasurers of the Union -not later than the 25th day of each calendar month in which the deductions are made. The Secre- tary-Treasurer of the Union shall furnish an appropriate receipt to the Com- pany upon receipt thereof. The Company shall not be liable to the Union for any sums other than those collected by the Company. The Company and the Union shall work out a mutually satisfactory agree- ment, by which the Company will furnish the Secretary -Treasurer of the Union,- monthly, a record of the dues, from whom the deductions have been made,-together with the amount of-such deductions. APPENDIX D The letter dated May 11 , 1945, which the Respondent received , was signed by R. M. Tomson -for "Cannery `and Food Process Workers' Council of the Pacific Coast." It was on a letterhead which , in addition to the printed insignia of the American Federation of Labor, was inscribed "CANNERY WORKERS' UNION, Local No. 22382; A. C. Burroughs , President ; R. M. Tomson, Secretary-Treasurer ; 329 So. 99th Street; Phone ' 2412, Modesto, California." The letter read as follows : It is our information that you have been requested to make ,arrangements to substitute the Teamsters' Union` for the California State Counsel of Cannery Unions in our Collective Bargaining Contract. 300 DECISIONS OF NATIONAL LABOR RELATIONS 'BOARD This letter is to advise you that the person or persons making that request were without any legal authority whatsoever . They do not represent the employees in your plant and so far as we know no representative group of employees have requested them to act as their bargaining agent. You are further advised that an effort has been made by certain inter- national officers of the Teamsters' Union to transfer all members of Local No. 22382 , to that Union without regard to the wishes of the members. They have had the apparent support of the Executive 'Counsel of the• American Federation of Labor. As a result of this activity the employees involved have terminated their membership in Local No . 22382 and have in the exer- cise of their legal rights, organized themselves under the name of Cannery and Food Process Workers' Union of Modesto Area. This labor union exists under and by virtue of charter issued to it by Cannery and Food Process Workers' Council of the Pacific Coast . This Council is prepared upon re- quest of the Local Union to represent the Local Union and the employees in your plant in collective bargaining matters. Until such request is made and until you are advised to the contrary, the Local Union as an autonomous organization, is the representative in collective bargaining matters of all the employees in the plant except supervisory employees. We shall be pleased to meet with you or your representative for the purpose of discussil._g our Collective Bargaining Agreement. APPENDIX E The substantive provisions of the INTERIM AGREEMENT, entered into between the Respondent and the CIO on April 11, 1947, covering the employees of the Respondent in the unit certified by the Board , were as follows : 1. RECOGNITION Stanislaus Food Products and Califruit Canning Company, hereinafter referred to as the Companies, recognize the Food, Tobacco , Agricultural and Allied Workers Union, C. I. 0., hereinafter referred to as the Union, as the sole collective bargaining agent for the workers covered by this agreement. 2. CHECK-OFF . Upon receipt of written authorization from employees , the Companies agree to deduct automatically from the pay of each employee all dues and initiation fees required by FTA -CIO according to its constitution and by- laws. 3. GRIEVANCE PROCEDURE The Companies agree to recognize regularly selected shop stewards, who shall have the right to take up grievances in the following manner : a. The shop steward shall first take the grievance up with the immediate foreman concerned. b. In,,the event the grievance is not settled satisfactorily at the conclusion of the first step, the shop steward and a full time representative of the union shall take the matter up with the plant management. c. In the event the grievance is not settled satisfactorily at the conclusion of the second step, it shall be referred to an arbitrator selected ,;by,,sthe Conciliation Service of the U . S. Department of Labor. The decision of the arbitrator'shall be binding. The costs of such arbitrator shall be divided- equally between the Company and the Union. STANISLAUS FOOD PRODUCTS COMPANY 301 4. SENIORITY LISTS The Companies agree to furnish the Union with copies of their seniority lists. 5. WAGE RATES Pending negotiation of wage rates , those rates and schedules now in effect will be continued. 6. GENERAL - Except as herein otherwise provided, working conditions shall be governed by the "Green Book" contract covering the canning industry. - 7. DURATION This agreement shall remain in full force and effect as an interim agree- ment pending negotiation of a formal contract. APPENDIX F - The following rules have been posted in the Respondent's plant during the 1947 season : ' EMPLOYMENT RULES To OUR EMPLOYEES The following rules are established for your safety and welfare while on your job. Therefore, breaking any of them will be considered as grounds for immediate discharge. 1. Obey all State, County, City and Federal laws while on the premises or while on duty ' elsewhere. 2. Observe all safety rules and regulations. Wilful disregard of such rules will result in immediate discharge. 3. Fighting on the premises is forbidden, and all persons violating this rule will be discharged immediately. 4. Smoking is permitted only in designated areas. 5. Horseplay endangering other workers or property or interfering with work is prohibited. 6. Do not enter the premises if you are' under the influence of liquor. Do not bring liquor with you to work. 7. Theft of any property belonging to the Company' or to other persons is ground for immediate discharge. 8. No literature may be distributed on the premises and no notices or bulletins may be posted on Company=property'without•^prior written approval of the superintendent. 9. No funds or memberships ' may be solicited from any person upon the premises. 10. Falsification of time cards or other records will result in dismissal. -11. Discipline will also be imposed for careless or inefficient work , habitual tardiness , unexplained or unjustified absences from work , failure to follow instruction, insubordination , abusive or boisterous conduct, failure to observe reasonable sanitary conditions , and damaging or defacing Company property. Dated April 7, 1947. /s/ R. J. QUARTAROLI, For the Company. 302 DECISIONS "OF ' NATIONAL LABOR RELATIONS BOARD APPENDIX G 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 CALIFORNIA STATE COUNCIL OF CANNERY UNIONS,'CAN- NERY WORKERS' UNION, LOCAL 748, INTERNATIONAL BROTHERHOOD OF TEAM- STERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA, affiliated with the AMERICAN FEDERATION OF LABOR, as the exclusive representative of our employees in our Modesto, California, plant and warehouse, for the purposes of collective bargaining, unless and until said organization shall have been certified by the National Labor Relations Board as said representative. WE WILL NOT give effect to our agreement dateddApril 12, 1946, with CALI- FORNIA STATE COUNCIL OF CANNERY UNIONS, CANNERY WORKERS' UNION, LOCAL 748, INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSE- , MEN AND HELPERS OF AMERICA, affiliated with the AMERICAN FEDERATION OF LABOR, or to any extension, renewal, modification or supplement thereof, or to any superseding agreement with'said Union or any affiliate thereof, unless ands-until ;same shall have been certified by the, National ,Labor, Relations Board as the representative of employees in an appropriate unit, and unless said agreement shall conform to the provisions of the National Labor Rela- tions Act, as amended. WE WILL NOT encourage membership in CALIFORNIA STATE COUNCIL OF CAN- NERY UNIONS, CANNERY WORKERS' UNION, LOCAL 748, INTERNATIONAL BROTHER- HOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA, affiliated with the AMERICAN FEDERATION OF LABOR, or any other labor organ- ization, by discharging or refusing to reinstate any employee for failure to maintain membership therein, by requiring membership, therein as a condi- tion of employment, or by giving preference as to hire or, tenure of employ- ment or. any term or condition of employment, based on membership therein, except as such preference shall have been established by agreement in con- formity with the,provisions of the'National Labor Relations Act, as amended. WE WILL NOT refuse to bargain collectively with FooD, TOBACCO, AGRICUL- TURAL & ALLIED WORKERS UNION OF AMERICA, affiliated with the CONGRESS OF INDUSTRIAL ORGANIZATIONS, as the exclusive representative of our employees in the.bargainWng unit,,ldescribed herein with respect to ratesof pity,,;wages, hours of employment, or other conditions of employment. WE WILL CONTINUE TO BARGAIN collectively with FooD, TOBACCO, AGRICUL- TURAL & ALLIED WORKERS UNION OF AMERICA, affiliated with the CONGRESS OF INDUSTRIAL ORGANIZATIONS, as the exclusive representative of all of our employees in the bargaining unit described below and, if an understanding is reached, we.will embody such understanding in a signed agreement. The bargaining unit is: All of .our production and maintenance employees,, excluding, office and clerical employees and all supervisory employees with authority to hire, promote, discharge, discipline, or otherwise effect changes in the status of employees or' effectively recommend such action. WE WILL OFFER Diana A. Bettencourt immediate and full reinstatement to her former or substantially equivalent position without prejudice to her seniority or any other rights and privileges previously enjoyed. STANISLAUS FOOD PRODUCTS COMPANY 303 WE WILL MAKE WHOLE the following employees for any loss of pay suffered as a result of discrimination against them: Marie Amador Josephine Satterlee William Campolongo Iva Taylor Mary Caruso Rachel Trautman Cecil Ehrlich Maudie Mae Wyatt Helen Maddeford Maude B. Wyatt Ada Powell James E. Brink Diana A.'Bettencourt All of our employees are free to become or remain members of FooD, TOBACCO, AGRICULTURAL & ALLIED WORKERS UNION OF AMERICA , affiliated with the CONGRESS OF INDUSTRIAL ORGANIZATIONS , or any other labor organization. We will not discriminate in regard to hire or tenure of employment or any term or condition of employment- against any employee because of membership in or activity on behalf of any such labor organization. STANISLAUS FOOD PRODUCTS COMPANY, SUCCESSOR TO R. J . QUARTAROLI, D/B/A STANISLAUS CANNING COMPANY, 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. I