Clara-Val Packing Co.

In the Matter of CLARA-VAL PACKING COMPANY and NORA E. STIERS, AN INDIVIDUAL In the Matter Of CANNERY WAREHOUSEMEN, FOOD PROCESSORS, DRIVERS AND HELPERS, LOCAL UNION No. 679, AFL and NORA E. STIERS,, AN INDIVIDUAL Cases Nos. 20-CA-117 and 20-CB-29.Decided December 16, 1945 DECISION AND ORDER On June 6, 1949, Trial Examiner Josef L. Hektoen issued his Inter- mediate Report in the above-entitled proceeding, finding that the Respondents had engaged in and were engaging in certain unfair labor practices, and recommending that they cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Inter- mediate Report attached hereto.- Thereafter, the Respondents filed exceptions to the Intermediate Report and supporting brief. The Respondents' request for oral argument is hereby denied because the record and the exceptions and brief, in our opinion, adequately present the issues and the positions of the parties. The Board has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Inter- mediate Report, the exceptions and brief filed by the Respondents, and the entire record in the cases, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner not incon- sistent with our findings, conclusions, and order, hereinafter set forth. 1. The Union expelled Nora Stiers from membership because she refused to honor a picket line which the Union had established at the plant of another company with whom the Union had a labor dispute. The Union then demanded that Respondent Clara-Val discharge Stiers, in accordance with the union-security provisions of their con- tract. The Union accompanied this demand with a threat to strike i Pursuant to Section 203.33 ( b) of the National Labor Relations Board Rules and Regulations ,, these cases were consolidated by order of the Regional Director for the Twen- tieth Region ( San Francisco , California ) on November 30, 1948. 87 NLRB No. 120.' 703 704 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Respondent Clara-Val's plant. Respondent Clara-Val thereupon dis- charged Stiers on June 24, 1948. . The Trial Examiner found, and we agree, that the contract in ques- tion had been renewed in 1948 after the enactment of the amended Act, and therefore that Section 103 did not preserve the contract as a defense to the discharge. Accordingly, we agree with the Trial Exam- iner's conclusions that the union-security provision of the contract, executed without an election pursuant to Section 9 (e), did not sat- isfy the requirements of the amended Act; that the Respondent Clara- Val violated Section 8' (a) (3) and S (a) (1) of the amended Act by discharging Stiers because she was no longer a member of the Union; and that the Respondent Union violated Section 8 (b) (2) in causing Respondent Clara-Val to discriminate against Stiers in violation of Section 8 (a) (3).2 2. The Trial Examiner found that the Respondent Union, by caus- ing Respondent Clara-Val discriminatorily to discharge Stiers, re- strained and coerced employees in the exercise of the rights guaran- teed by Section 7, thereby violating Section 8 (b) (1) (A) of the amended Act. Section 8 (b) (1) (A) provides: It shall be an unfair labor practice fora labor organization or its agents (1) to restrain or coerce (a) employees in the exercise of the rights guaranteed in Section 7 . . 3 We have found that there was in effect no valid agreement requir- ing Stiers to be a member of the Respondent Union as a condition of employment. Accordingly, she was entitled to exercise the right to engage in, or to refrain from engaging in, all the activities enu- merated in Section 7 of the Act without restraint or coercion from either the Respondent Company (Section 8 (a) (1)) or from the Respondent Union (Section 8 (b) (1) (A) ). Because she exercised the right, guaranteed by Section 7, to refrain from engaging in such activities, the Union caused the Respondent Clara-Val discrimina- torily to discharge her. The legislative history of the amended Act establishes, as the Board has found,4 that Section 8 (b) (1) (A) was designed by Congress to 2 H. Milton Newman, an individual d/b/a H. M. Newman, 85 NLRB 725. Section 7 provides in part : Employees shall have the right to form , join or assist labor organizations . . . and shall also have the right to refrain from any or all of such activities except to the extent that such right may be affected by any agreement requiring membership in a labor organization as a condition of employment as authorized in Section 8 (a) (3). 4 National Maritime Union of America, at al., 78 NLRB 971 ; National Maritime Union of America, et al., 82 NLRB 1365; Perry Norvell Company, 80 NLRB 225; International Typographical Union, et al., 86 NLRB 951. CLARA-VAL PACKING COMPANY 705 eliminate not only the use by unions of physical violence and coercion, but also union threats of economic action against specific individuals in an effort to compel them to join or assist a union. Holding, how- ever, that-Congress did not intend a violation of Section 8 (b) (1) (A) to flow automatically in all cases from a union's violation of Sec- tion 8 (b) (2), the Board declared in the NNU case that "The touch- stone of a strike which is violative of Section 8 (b) (1) (A) is nor- mally the means by which it is accomplished, so long as its objective is directly related to the interest of the strikers and not directed pri- marily at compelling other employees to forego the rights which, Sec- tion 7 protects." [Emphasis added.] The present case falls squarely within the. underscored exception. It involves union conduct which was directed primarily at compelling employee Stiers to forego the rights which Section 7 protects. That Section 8 (b) (1) (A) proscribes the threat of the type of economic action in question, has already been decided in the Smith Cabinet and Seamprufe cases.5 In both these cases a majority of the Board found that the mere voicing of a threat that employees who did not join the union would lose their jobs when the union organized the plant, -was .a violation of Section 8 (b) (1) (A). And in the Julius Resnick case B the Board held that the mere execution of an illegal union- security contract restrained employees in the exercise of rights guar- anteed by Section 7 of the Act.7 In view of these decisions, in which our dissenting colleague joined, it would be anomalous to conclude that the actual effectuation of the threat, or enforcement of the illegal ,contract against a specific individual employee, did not likewise con- stitute restraint. We cannot subscribe to the view of the dissent that the Union's action here was directed only to the employer. The discharge and the reason for it would inevitably become known to the other employees, and would coerce and restrain them to join the Union or retain their membership in it. We would not permit the Union to avoid responsi- bility for this inevitable and direct result of its action in procuring -the discharge of a particular employee. We conclude, therefore, that by causing Stiers to be discrimina- torily discharged the Union restrained Stiers in the exercise of her Tights guaranteed under Section 7 of the amended Act and thereby violated Section 8 (b) (1) (A) of the amended Act. 8 Smith Cabinet Manufacturing Company, Inc., 81 NLRB 886; Seamprufe, Incorporated, =82 NLRB 892. ' ( Chairman Herzog and Member Houston dissenting.) a Julius Resnick, Inc.. 86 NLRB 38. See also the numerous representation cases in which the Board held that an illegal security clause, "b3' its very existence acts as a restraint on employees desiring to refrain .from union activity." Hazel-Atlas Co., 85 NLRB 1305. - 706 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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 : 1. The Respondent, Clara-Val Packing Company, Morgan Hill, California, its officers, agents, successors, and assigns, shall: (a) Cease.and desist from : (1) Encouraging membership in Cannery Warehousemen, Food Processors, Drivers and Helpers, Local Union No. 679, AFL, or in any other labor organization of its employees, by discharging any of its employees or discriminating in any other manner in regard to their hire or tenure of employment or any term or condition of their employment; (2) In any other manner interfering with, restraining, or coercing its employees in the right to refrain from exercising the rights guaran- teed in Section 7 of the Act, except to the extent that such rights may he affected by an agr eement requiring membership in a labor organiza- tion as a condition of employment as authorized by Section 8 (a) (3) of the Act. (b) Take the following affirmative action, which the Board finds will effectuate the policies of the Act : (1) Offer to Nora E. Stiers immediate and full reinstatement to her former or a substantially equivalent position without prejudice to her seniority or other rights and privileges; (2) Post at its plant at Morgan Hill, California, copies of the notice attached hereto as Appendix A.8 Copies of said notice, to be fur- nished by the Regional Director for the Twentieth Region, shall,.after being duly signed by the Respondent Company's representative, be posted by it immediately upon receipt thereof, and be maintained by it for a period of at least sixty (60) consecutive days thereafter, in con- spicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respond- ent Company to insure that such notices are not altered, defaced, or covered by any other material; (3) Notify the Regional Director for the Twentieth Region in writ- ing, within ten (10) days from the date df this Decision and Order, what steps the Respondent Company has taken to comply herewith. 2. The Respondent, Cannery Warehousemen, Food Processors, Drivers and Helpers, Local Union No. 679, AFL, its officers, repre- sentatives and agents, shall: 8 In the event this Order is enforced by decree of a United States Court of Appeals, there shall be_inserted before the words : "A DECISION AND ORDER" the words : "A DECREE OF THE UNITED STATES COURT OF APPEALS ENFORCING." CLARA-VAL PACKING COMPANY 707 (a) Cease and desist from : (1) Causing, by threatening strike action, Clara-Val Packing Com- pany, its officers, agents, successors, or assigns, to discharge or other- wise discriminate against employees because they are not members in good standing in Cannery Warehousemen, Food Processors, Drivers and Helpers, Local Union No. 679, AFL, except in accordance with Section 8 (a) (3) of the Act; (2) In any other planner causing or attempting to cause Clara-Val Packing Company, its officers, agents, successors, or assigns, to discrim- inate against its employees in violation of Section 8 (a) (3) of the Act; (3) Restraining or coercing employees of Clara-Val Packing Com- pany, its successors, or assigns, in the exercise of their right to refrain from any or all of the concerted activities guaranteed by Section 7. (b) Take the following affirmative action, which the Board finds will effectuate the policies of the Act : (1) Post at its offices, if any, at Morgan Hill, California, and wher- ever notices to its members are customarily posted, copies of the notice attached hereto as Appendix B.9 Copies of said notice, to be furnished by the Regional Director for the Twentieth Region, shall, after being duly signed by the Respondent Union's representative, be posted by it immediately upon receipt thereof, and be maintained by it for a period of at least sixty (60) consecutive days thereafter, in conspicuous places, including all places where notices to members are customarily posted. Reasonable steps shall be taken by the Respondent Union to insure that such notices are not altered, defaced, or covered by any other material; (2) Notify the Regional Director for the Twentieth Region in writ- ing, within ten (10) days from the date of this Decision and Order, what steps it has taken to comply herewith. 3. Clara-Val Packing Company, its officersy agents, successors, and assigns, and Cannery Warehousemen, Food Processors, Drivers and Helpers, Local Union No. 679, AFL, its officers, representatives, and agents, shall jointly and severally make whole Nora E. Stiers for any loss of pay she may have suffered because of the discrimination against her, by payment to her of a sum of money equal to the amount she normally would have earned as wages from June 24, 1948, the date she was discriminatorily discharged, to the date of the Respondent Company's offer of reinstatement, less her net earnings during said period. MEMBER MURDOCK took no part in the consideration of the above Decision and Order. U In the event this order is enforced by decree of a United States Court of Appeals, there shall he inserted before the words : "A DECISION AND ORDER " the words : "A DECREE OF THE UNITED STATES COURT OF APPEALS ENFORCING." 877359-50-vol. 87-46 WS DECISIONS OF NATIONAL LABOR RELATIONS BOARD MEMBER REYNOLDS, concurring in part, dissenting in part : I concur in the finding of the majority of the Board that the Re- spondent Clara-Val violated Section 8 (a) (3) and (1) of the Act by discharging Stiers because she was no longer a member of the Union. I also concur in the finding that the Respondent Union violated Sec- tion 8 (b) (2) of the Act by causing Clara-Val to discriminate against Stiers in violation of Section 8 (a) (3). However, I disagree with the finding that the Respondent Union also violated Section 8 (b) (1) (A) of the Act by causing Clara-Val to discriminate against Stiers. Section 8 (b) (2) provides that it shall be an unfair labor practice for a labor organization "to cause ... an employer to discriminate against an employee in violation of subsection (a)- (3)." [Emphasis added.] Section 8 (b) (1) (A), on the other hand, provides that it shall be an.unf air labor practice for a labor organization "to restrain or coerce . . . employees in the exercise of the rights guaranteed in Section 7." [Emphasis added.] Thus Section 8 (b) (2) proscribes certain union activity directed at employers, whereas Section 8 (b) (1) (A) proscribes other union activity directed at employees. It is the failure of my colleagues to observe this distinction which is, in my opinion, responsible for their erroneous conclusion that the conduct of the Respondent Union also violated Section 8 (b) (1) (A). Our decisions imply the existence of this distinction. In the NMU 10 and Perry il'orvell 11 cases, the Board considered allegations in the complaints that by engaging in strikes the respective respondent unions violated Section 8 (b) (1) (A) of the Act. In the NMU case the strike,.like the union conduct in the present case, violated Section 8 (b) (2) of the Act. In the Perry Norvell case, it was not alleged, nor did it appear, that the strike violated Section 8 (b) (2). In both cases the Board found that the strike did not violate Section 8 (b) (1) (A). Yet in both cases the Board acknowledged that all strikes, including the strikes in question, encroached upon the rights of employees guaranteed'by Section 8 (b) (1) (A) of the Act. In the Perry Norvell case, despite the effect of the strike upon the rights of employees guaranteed in Section 8 (b) (1) (A), the Board stated that "the legislative history of the Act shows that, by this particular Section [8 (b) (1) (A)], Congress primarily intended to proscribe the coercive conduct which sometimes accompanies a strike, but not the strike itself." The reason for this elimination of strikes generally from the purview of Section 8 (b) (1) (A) can, I believe, be succinctly expressed in language from the NMU case, that a strike 10 National Maritime Union of America, et al. (The Texas Company), 78 NLRB 971. 11 United Shoe Workers of America, et al. (Perry Norvell ), 80 NLRB 225. CLARA-VAL PACKING COMPANY 709 has "as its prime objective the protection of- employment interests of [union] members, and not the coercing of non-members." Thus the decisions of the NH U and Perry Norvell cases, the lan- guage of Section 8 (b) (1) (A) and 8 (b) (2), and the legislative history of Section 8 (b) (1) (A) 12 indicate that where action by a union is directed at employers, the incidental effect of such action upon employee rights protected by Section 8 (b) (1) (A) is not sufficient to bring the action within the proscription of Section 8 (b) (1) (A). If this were not so, unions would be forever precluded from exerting upon employers, in furtherance of valid union objectives, primary pressures such as strikes and peaceful picketing despite the fact that these activities impose upon disputant employers and the striking and picketing employees great hardships and expense without regard to the effect of the activities upon non-participating employees whose rights Section 8 (b) (1) (A) seeks to protect. Mindful, therefore, of the distinction between subsections 8 (b) (1) (A) and 8 (b) (2), unions are, in my opinion, afforded an area of primary activity which being primarily directed at employers is not to be circum- scribed because it incidentally may affect employee rights protected in Section 8 (b) (1) (A).13 Because the Union's activity in this case was directed primarily at Clara-Val rather than at coercing or restraining employees, the Smith Cabinet and Seamprufe cases, cited by the majority, are not con- trolling. In these cases the union threats which the Board found to be coercive were made directly to individual employees. Nor in my opinion is it controlling that in the Julius Resnick case, also cited by the majority, the Board held that an employer who violated Section 8 (a) (2) by the mere execution of an illegal union-security agreement, also restrained employees in violation of Section 8 (a) (1) by the same 'conduct. The Board generally finds that an employer automatically interferes with, restrains, or coerces employees as a result of commit- ting other unfair labor practices. However, in the NM U case, supra, the Board specifically stated that there was no "suggestion in the legislative history of Section 8 (b) (1) (A) that `coercion' and 're- straint' may be found to flow automatically from a union's violation of Section 8 (b) (2)" where the efforts of the union were not directed against employees. Moreover, the same rule cannot be applied to em- ployers and unions with respect to derivative violations of subsections 8 (a) (1) and 8 (b) (1) (A) respectively, for 8 (a) (1) proscribes 12 See the NMU and Perry Norvell cases, supra, for a comprehensive study of the legis- lative history of Section 8 (b) (1) (A). >3Cf. Oil Workers International Union, Local Union 346 (CIO) and The Pure Oil Com- pary, 84 NLRB 315. 710 DECISIONS OF NATIONAL LABOR RELATIONS BOARD "interfering with" employees in the exercise of their rights guaranteed. in Section 7, whereas there is no similar proscription in 8 (b) (1) (A). Upon the basis of all the foregoing I am of the opinion that where the Board finds that certain conduct of a union violates Section 8 (b) (2) of the Act, the same conduct does not constitute a violation of Section 8 (b) (1) (A). Accordingly, as we are finding that the con- duct of the Respondent Union violated Section 8 (b) (2), I would dis- miss the allegation in the complaint that the Respondent Union, by the same conduct, violated Section 8 (b) (1) (A) of the Act. APPENDIX A NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Rela- tions Board, and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify our employees that: WE WILL NOT encourage membership in CANNERY WAREHOUSE- MEN FOOD PROCESSORS, DRIVERS AND HELPERS, LOCAL UNION No. 679,. AFL, or in any other labor organization of our employees, by discriminatorily discharging any of our employees or discrim- inating in any other manner in regard to their hire or tenure of employment, or any terms or conditions of employment. AVE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the right to refrain from any or all of the concerted activities guaranted them by Section 7 of the Act, except to the extent that such right may be affected by an agree- ment requiring membership in a labor organization as a condi- tion of employment, as authorized in Section 8 (a) (3) of the Act. WE WILL make Nora E. Stiers whole for any loss of pay suffered as a result of the discrimination against her. ALL our employees are free to become, remain, or to refrain from becoming or remaining,. members in good standing of the above- named Union or any other labor organization except to the extent that this right may be affected by an agreement in conformity with Section 8 (a) (3) of the amended Act. CLARA-VAL PACKING COMPANY, Employer. By ----------------------------------- (Representative) (Title) Dated-------------------- This notice must remain posted for sixty (60) days from the date hereof, and must not be altered, defaced, or covered by any other material. CLARA-VAL PACKING COMPANY 711 APPENDIX B NOTICE To ALL MEMBERS OF CANNERY WAREHOUSEMEN , FOOD PROCESSORS, DRIVERS AND HELPERS, LOCAL UNION No. 679, AFL, AND TO ALL EMPLOYEES OF CLARA-VAL PACKING COMPANY Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Telations Act, as amended, we hereby notify you that : WE WILL NOT cause, by threatening strike action, CLARA-VAL PACKING COMPANY, its agents, successors, or assigns, to discharge or otherwise discriminate against employees because they are not members in good standing in CANNERY WAREHOUSEMEN, FOOD PROCESSORS, DRIVERS AND HELPERS, LOCAL UNION No. 679, AFL, except in accordance with Section 8 (a) (3) of the Act. WE WILL NOT in any other manner cause or attempt to cause CLARA-VAL PACKING COMPANY, its agents, successors, or assigns to discriminate against its employees in violation of Section 8 (a) (3) of the Act. WE WILL NOT restrain or coerce employees of CLARA-VAL PACK- ING COMPANY, its successors, or assigns, in the exercise of the right to refrain from any or all of the concerted activities guaran- teed to them by Section 7 of the Act. WE WILL make Nora E. Stiers whole for any loss of pay she may have suffered because of the discrimination against her. CANNERY WAREHOUSEMEN, FOOD PROCESSORS, DRIVERS AND HELPERS, LOCAL UNION No. 679, AFL. By -------------------------------------------- (Representative) (Title) Date -------------------- This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. INTERMEDIATE REPORT Mr. Eugene K. Kennedy, for the General Counsel. Mr. I. B. Padway, of San Francisco, Calif., for the Respondent Union. Mr. Vincent C. Giordano, of Morgan Hill, Calif., for the Respondent Company. STATEMENT OF THE CASE Upon charges duly filed by Nora E. Stiers, an individual, the General Counsel of the National Labor Relations Board, herein called respectively the General Counsel and the Board , by the Regional Director for the Twentieth Region (San 712 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Francisco, California), issued his consolidated complaint dated November 30', 1948, against Clara-Val Packing Company, herein called the Respondent Com- pany, and Cannery Warehousemen, Food Processors, Drivers and Helpers, Local, Union No. 679, AFL, herein called the Respondent Union, and jointly referred, to as the Respondents, alleging that the Respondents had engaged in and were engaging in unfair labor practices affecting commerce within the meaning of Section 8 (a) (1) and (3) and Section 8 (b) (1) (A) and (2), respectively, and Section 2 (6) and (7) of the National Labor Relations Act, 49 Stat. 449, as amended by the Labor Management Relations Act, 61 Stat. 136, herein called the Act. Copies of the complaint, accompanied by notice of hearing and copies of the charges, were duly served upon the Respondents and Stiers. With respect to the unfair labor practices, the complaint alleged in substance that: (1) on or about June 24, 1948, the Respondent Company, at the request and. demand of the Respondent Union, discharged and thereafter refused to rein- state Stiers because of her alleged failure to maintain membership in good stand- ing in the Respondent Union; and (2) by such acts the Respondent Company acted in contravention of the provisions of Section 8 (a) (1) and (3) and the Respondent Union acted in contravention of the provisions of Section 8 (b) (1) (A) and (2), respectively, of the Act. Neither Respondent filed an answer but both denied at the hearing, and the Respondent Union denies in its brief thereafter filed, that they, or either of them, acted in contravention of any provision of the Act. Pursuant to notice, and a necessary postponement' a hearing was held on March 23, 1949, at San Francisco, California, before the undersigned Josef L. Hektoen, the Trial Examiner duly designated by the Chief Trial Examiner. The General Counsel, the Respondent Company, and the Respondent Union were represented by counsel and participated in the hearing. Full opportunity to examine and cross-examine witnesses and to introduce evidence bearing upon, the issues was afforded to all parties. The proceedings of the previous day cov- ering some 26 pages of transcript were incorporated in the record by stipulation and the exhibits offered by the General Counsel and the Respondent Union were admitted into evidence. The motion of the General Counsel to amend the com- plaint in two minor particulars is hereby allowed without objection. The General Counsel and counsel for the Respondent Union argued briefly on the record'.. After the close of the hearing, a brief was received from counsel for the Respond- ent Union. Upon the entire record in the case,' the undersigned makes the following : FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT COMPANY The Respondent Company, Clara-Val Packing Company, is a California cor- poration maintaining its principal place of business at Morgan Hill, California. i The train in which the undersigned was proceeding to the place of the hearing suffered a wreck shortly before midnight, March 21, 1949, the day before the hearing was scheduled. and arrived at its destination some 10 hours late. Upon being informed of the unavoidable delay suffered by the undersigned in consequence of this mishap, the parties, and the official reporter, being present at the place of hearing, determined "that a record be made at this time for the purpose of submitting to the Trial Examiner and shall be considered by him as though it were taken during the course of a formal hearing opened by the Trial Examiner." 2 No witnesses were called, there being no dispute as to the facts in the case, which were stipulated by the parties. CLARA-VAL PACKING COMPANY 713 It is there engaged in processing and shipping fruit. During the last half of 1948, it bought fruit valued at more than $300,000, all from points within the State of California. During the same period , it sold finished products valued at approximately $400,000, of which about 90 percent by value was shipped by it to points outside the State of California. The Respondent Company admits, and the undersigned finds, that it is en- gaged in commerce, within the meaning of the Act. II. THE ORGANIZATION INVOLVED Cannery Warehousemen, Food Processors, Drivers and Helpers, Local Union No. 679, AFL, is a labor organization admitting to membership employees of the Respondent Company. III. THE UNFAIR LABOR PRACTICES A. Background and undisputed facts As stated above, there is no dispute as to the factual situation obtaining in this case, the only question for determination being the legal conclusions that flow therefrom. On June 24, 1948, the date of Stiers' discharge, the Respondents were in con- tractual relations pursuant to the terms of a contract between California Processors and Growers, Inc., a group of California cannery operators of which the Respondent Company is not a member, and California State Council of Can- nery Unions, AFL, of which the Respondent Union is a part, the Respondents having agreed to operate under the terms of such contract. The date of their agreement to this effect does not appear with certainty in the record. In any event, the "master" contract was adopted on June 1.0, 1941., was thereafter amended on six occasions, the last of these having occurred on May 20, 1947,3 and it was this amended contract under the terms of which Stiers was discharged. The contract provided that employees in Stiers' category "shall be and shall remain members of the local in good standing as a condition of continued em- ployment" and further provided that, absent the timely service of certain pre- scribed notices by either party thereto upon the other, the contract "shall con- tinue without expiration date." It further provided that March 1 of each year be its "anniversary date." At the time of Stiers' discharge the March 1, 1948, anniversary date of the contract had passed without service of such notice by either party upon the other. About the middle of June 1948, Stiers was a dues-paying member of the Re- spondent Union and was employed by the Respondent Company. It came to the attention of the former that Stiers, in violation of union rules, was in the habit of penetrating union picket.lines at the plant of Driscoll Strawberries, Inc., with which the Respondent Union was then engaged in an economic controversy, and performing work at the struck plant after her tours of duty at the Respondent Company's plant had been completed. She was tried by the Respondent Union, found guilty, and assessed a fine of. $200, which was reduced to $25 in considera- tion of her undertaking to cease violation of its laws in the future. Stiers failed to pay any part of the fine, continued to breach the picket lines at the Driscoll plant, and was thus rendered not in "good standing" in the Respondent Union: On June 24, 1948, I. G. Ficarrota, business representative of the Respondent Union, informed Vincent C. Giordano, president of the Respondent Company, accordingly and demanded that it discharge her. The demand was accompanied 8 The contract was made effective as of March 1, 1947. 714 DECISIONS OF NATIONAL LABOR RELATIONS BOARD by a threat that the Respondent Company would be struck and picketed should it refuse to discharge Stiers. The Respondent Company discharged Stiers on the same day. B. Conclusions The General Counsel's position is that the contract section setting forth the term of the agreement fails to fall within the protection of Section 102 of the Act 4 in that it provides for annual renewal and that its closed-shop provision was therefore inapplicable after March 1, 1948. Counsel for the Respondent Union contends that the contract was neither "renewed" nor "extended," within the meaning of Section 102 but was merely not "terminated," within the mean- ing of its own provisions and that it therefore continued in full force and effect and protected the parties against what it is tacitly admitted would otherwise constitute violations of Sections 8 (a) (1) and (3) and 8 (b) (1) (A) and (2). The language of the contract, providing as it does for an annual "anniversary date" and for notice of termination within a stated period before such (late, constitutes, in the opinion of the undersigned, despite that by its terms, absent notice of termination or certain other prescribed notices, the contract shall continue in effect "without expiration date," a form of "automatic renewal clause" often considered by the Board and the courts in both representation and dual-unionism matters.' It appears to the undersigned to be clear from the holdings in such cases that, should a rival union file a petition before what is known as the "Mill B" or automatic renewal date,' the contract would not be held a bar to the proceeding. Similarly, the undersigned believes that activities on behalf of a rival union in a protected period before an anniversary date of the contract, would receive safeguard. By analogy then, it must be found that the contract provisions contained an "automatic renewal clause." The undersigned finds that the contract was on March 1, 1948, renewed or extended, within the meaning of Section 102 of the Act. It follows that, although the contract was valid under the Act before its amendment, since the amended Act not only abolishes the closed shop but also provides for a union-security election before so much as a 30-day union shop provision may legally be included in a collective bargaining agreement,' the Respondent Company has discriminated against Stiers in regard to the hire and tenure of her employment to encourage membership in a labor. organization, and has thereby interfered with, restrained, and coerced its employees in the 4 Sec. 102. No provision of this title shall be deemed to make an unfair labor prac- tice any act which was performed prior to the date of the enactment of this Act which did not constitute an unfair labor practice prior thereto, and the provisions of section 8 (a) (3) and section 8 (b) (2) of the National Labor Relations Act as amended by this title shall not make an unfair labor practice the performance of any obligation under a collective-bargaining agreement entered into prior to the date of the enactment of this Act, or (in the case of an agreement for a period of not more than one year) entered into on or after such date of enactment, but prior to the effective date of this title, if the performance of such obligation would not have constituted an unfair labor practice under section 8 (3) of the National Labor Rela- tions Act prior to the effective date of this title , unless such agreement was renewed or extended subsequent thereto. [Emphasis supplied.] ,The Act was enacted on June 23, 1947, the effective date of the amendments made by Title I thereof being August 22, 1947. 5 See e. g., N. L. R . B. v. Geraldine Novelty Company, Inc., et al., 173 F. 2d 14 ( C. A. 2), and cases therein cited. 0 Mill B, Inc ., 40 NLRB 346, 351. 7 See Section 8 (a) (3) and the proviso thereto. CLARA-VAL PACKING COMPANY 715; exercise of the rights guaranteed in Section 7 of the Act. It also follows that, by causing it to do so, the Respondent Union has restrained and coerced an employee in the exercise of those rights. The undersigned so finds. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondents set forth in Section III, above, occurring in connection with the operations of the Respondent Company set forth in Sec- tion 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 burden- ing and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that the Respondents, and each of them, have engaged in and. are engaging in certain unfair labor practices, it will be recommended that they cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. It has been found that the Respondent Company on June 24, 1948, discriminated against Nora E. Stiers in regard to the hire and tenure of her employment be- cause she failed to maintain good standing in the Respondent Union, and that the latter by causing it to do so, restrained and coerced her in the exercise of the rights guaranteed in Section 7 of the Act. It will therefore be recommended that the Respondent Company offer to her immediate and full reinstatement to her former or substantially equivalent position 8 without prejudice to her seniority or other rights and privileges. It will be further recommended that the Re- spondents, jointly and severally, make her whole for any loss of pay she may have suffered by reason of the discrimination and coercion against her by pay- ment to her of a sum of money equal to that which she normally would have earned as wages from the date of her discriminatory discharge, to the date of the Respondent Company's offer of reinstatement,0 less her net earnings during. said period.10 Upon the basis of the foregoing findings of fact and upon the entire record in the case, the undersigned makes the following : CONCLUSIONS OF LAW . 1. The Respondent Union, Cannery Warehousemen, Food Processors, Drivers and Helpers, Local Union No. 679, AFL, is a labor organization, within the. meaning of Section 2 (5) of the Act. 2. By discriminating in regard to the hire and tenure of employment of Nora, E. •Stiers, thereby encouraging membership in the Respondent Union, the Re- 8 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, and if such position is no longer in existence, then to a substantially equivalent position." See The Chase National Bank of the City of New York, San Juan, Puerto Rico, Branch, 65 NLRB 827. 9 See Section 10 (c) of the Act which provides that back pay which will effectuate the policies of the Act "may be required of the employer or labor organization , as the case may be , responsible for the discrimination . . Since the Respondent Company, as is' shown above and by the transcript, would not have discharged Stiers but for the pressure put upon it to do. so by the Respondent Union, it appears to be expedient to require that both Respondents share liability for the consequences of their mutually illegal acts. 10 See Crossett Lumber Company, 8 NLRB 440. Republic Steel Corporation v. N. L. R. B., 311 U. S. 7. 716 DECISIONS OF NATIONAL LABOR RELATIONS BOARD spondent Company, Clara-Val Packing Company, has engaged in and is en- gaging in unfair labor practices , within the meaning of Section 8 (a) (3) of the Act. 3. By interfering with, restraining, and coercing its employees in the exer- cise of rights guaranteed in Section 7 of the Act, the Respondent Company has engaged in and is engaging in unfair labor practices, within the meaning of Section 8 (a) (1) of the Act. 4. By causing the Respondent Company to discriminate against an employee in violation of Section 8 (a) (3) of the Act, the Respondent Union has engaged in and is engaging in unfair labor practices, within the meaning of Section 8 (b) (2) of the Act. . 5. By restraining and coercing employees in the exercise of the rights guar- anteed in Section 7 of the Act, the Respondent Union has engaged in and is en- gaging in unfair labor practices, within the meaning of Section 8 (b) (1) (A) of the Act. 6. The aforesaid unfair labor practices are unfair labor practices affecting commerce, within the meaning of Section 2 (6) and (7) of the Act. RECOMMENDATIONS Upon the basis of the above findings of fact and conclusions of law, and upon the entire record herein, the undersigned recommends that: _ 1. The Respondent Company, Clara-Val Packing Company, Morgan Hill, Cali- fornia, its officers, agents, successors, and assigns, shall: a. Cease and desist from : (1) Encouraging membership in Cannery Warehousemen, Food Processors, Drivers and Helpers, Local Union No. 670, AFL, or in any other labor organiza- tion of its employees, by discriminating in regard to their hire or tenure of employment or any term or condition of their employment ; (2) In any other manner interfering with, restraining, or coercing its em- ployees in the exercise of the rights guaranteed in Section 7 of the Act. b. Take the following affirmative action, which the undersigned finds will effectuate the policies of the Act : (1) Offer to Nora E. Stiers immediate and full reinstatement to her former or substantially equivalent position without prejudice to her seniority or other rights and privileges ; (2) Jointly and severally with the Respondent Union, make her whole for any loss of pay she may have suffered by reason of their discrimination and re- straint and coercion against her, in the manner set forth in the section en- titled "The remedy," above ; (3) Post at its plant at Morgan Hill, California, copies of the notice at- tached hereto and marked Appendix A. Copies of said notice, to be furnished by the Regional Director for the,Twentieth Region, shall, after being duly signed by the Respondent Company's representative, be posted by it immediately upon receipt thereof, and be maintained by it for a period of at least sixty (60) con- secutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent Company to insure that such notices are not altered, defaced, ,or covered by any other material ; (4) Notify the Regional Director for the Twentieth Region in writing, within twenty (20) days from the receipt of this Intermediate Report, what steps the Respondent Company has taken to comply herewith. CLARA-VAL PACKING COMPANY 717 • 2. The Respondent Union, Cannery Warehousemen, Food Processors, Drivers and Helpers, Local Union No. 679, its officers, agents, successors, and assigns, :shall : a: Cease and desist from : (1) Causing or attempting to cause Clara-Val Packing Company, or any other employer, to discriminate against an employee in violation of Section 8 (a) (3) of the Act; (2) In any other manner restraining or coercing employees in the exercise -of the rights guaranteed in Section 7 of the Act. b. Take the following affirmative action, which the undersigned finds will -effectuate the policies of the Act : (1) Jointly and severally with the Respondent Company, make whole Nora E. Stiers for any loss of pay she may have suffered by reason of their discrimina- tion and restraint and coercion against her, in the manner set forth in-the Sec- tion entitled "The remedy," above ; (2) -Post at its offices, if any, at Morgan Hill, California, and post or offer to post, at the plant of Clara-Val Packing Company, of the same place, copies -of the notice attached hereto and marked Appendix B. Copies of said notice, to be furnished by the Regional Director for the Twentieth Region, shall, after being duly signed by the Respondent Union's representative, be posted by it immediately upon receipt thereof, and be maintained by it for a period of at least sixty (60) consecutive days thereafter, in conspicuous places, including .all places where notices to members are customarily posted. Reasonable steps -shall be taken by the Respondent Union to insure that such notices are not .altered, defaced, or covered by any other material. Copies of the notice shall be posted, or attempted to be posted, at the plant of the Respondent Company .and maintained in the fashion set out above ; (3) Notify the Regional Director for the Twentieth Region in writing, with- in twenty (20) days from the receipt of this Intermediate Report what steps it has taken to comply herewith. It is further recommended that unless on or before twenty (20) days from the receipt of this Intermediate Report, the Respondent Company notifies said Regional Director in writing that it will comply with the foregoing recom- mendations, the National Labor Relations Board issue an order requiring it to take the action aforesaid. It is further recommended that unless on or before twenty (20) days from the receipt of this Intermediate Report, the Respondent Union notifies said Regional Director in writing that it will comply with the foregoing recom- mendations, the National Labor Relations Board issue an order requiring it to take the action aforesaid. As provided in Section 203.46 of the Rules and Regulations of the National Labor Relations Board 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, Washington 25, D. C., an original and six copies of a statement in writing setting forth such exceptions to the Intermediate Report or to any other part of the record or proceeding (in- cluding rulings upon all motions or objections) as he relies upon, together with the original and six copies of a brief in support thereof ; and any part may, within the same period, file an original and six copies of 'a brief in support of the Intermediate Report. Immediately upon the filing of such statement of ex- ceptions and/or briefs, the party filing the same shall serve a copy thereof upon 718 DECISIONS OF NATIONAL LABOR RELATIONS BOARD each of the other parties. Statements of exceptions and briefs shall designate by precise citation the portions of the record relied upon and shall be legibly printed or mimeographed, and if mimeographed shall be double spaced. Proof of service on the other parties of all papers filed with the Board shall be promptly made as required by Section 203.85. As further provided in said Section 203.46,. 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. In the event no Statement of Exceptions is filed as provided by the aforesaid Rules and Regulations, the findings, conclusions, recommendations, and rec- ommended order herein contained shall, as provided in Section 203.48 of said Rules and Regulations, be adopted by the Board, and become its findings, con- clusions, and order, and all objections thereto shall be deemed waived for all purposes. Dated at Washington, D. C., this 6th day of June 1949. JOSEF L. HEKTOEN, Trial Examiner. APPENDIX A NOTICE TO ALL EMPLOYEES Pursuant to the recommendations of a Trial Examiner of the National Labor Relations Board and in order to effectuate the policies of the National Labor Relations Act, we hereby notify our employees that : WE WILL NOT discriminate in regard to the hire or tenure of employment or any term or condition of employment of any employee to encourage mem- bership in CANNERY WAREHOUSEMEN, FOOD PROCESSORS, DRIVERS AND HELPERS, LOCAL UNION No. 679, AFL, or any other labor organization. WE WILL OFFER to Nora E. Stiers immediate and full reinstatement to her former or substantially equivalent position, and jointly and severally with CANNERY WAREHOUSEMEN, FOOD PROCESSORS, DRIVERS AND HELPERS, LOCAL UNION No. 679, AFL, make her whole for any loss of pay suffered as a result of the discrimination and restraint and coercion against her. CLARA-VAL PACKING COMPANY, Employer. By ----------------------------------- (Representative ) ( Title) Dated -------------------- This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. APPENDIX B NOTICE To ALL MEMBERS 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 members that : WE WILL NOT cause or attempt to cause CLARA-VAL PACKING COMPANY, Morgan Hill, California, or any other employer, to discriminate against its employees in regard to their hire or tenure of employment or any term or condition of employment to encourage membership in any labor organiza- tion in violation of Section 8 (a) (3) of the National Labor Relations Act. CLARA-VAL PACKING COMPANY 719 WE WILL, jointly and severally with CLARA-VAL PACKING COMPANY, make Nora E. Stiers whole for any loss of pay suffered as a result of the discrimi- nation and restraint and coercion against her. CANNERY WAREHOUSEMEN, F OOD PROCESSORS , DRIVERS AND HELPERS, LOCAL UNION No. 679, AFL, Labor Organization. --------------- (Representative) (Title) Dated -------------------- This notice must remain posted for 60 days from the date hereof, and must -not be altered, defaced, or covered by any other material.