Flotill Products, Inc

In the Matter of FLOTILL PRODUCTS, INC. and FOOD, TOBACCO, AGRI- CULTURAL AND ALLIED WORKERS UNION OF AMERICA, CIO and IN- TERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WARE- HOUSEMEN AND HELPERS OF AMERICA, AFL and CALIFORNIA STATE COUNCIL OF CANNERY UNIONS, AFL, PARTIES TO THE CONTRACT Case No. 00-C-1444.-Decided August 19, 1946 Mr. David Aaron, for the Board. Mr. Jefferson E. Peyser, of San Francisco, Calif., and Mr. Alfred Goldberg, of Milwaukee, Wis., for the Respondent. Gladstein, Anderson, Resner, Sawyer, and Edises, by Mr. Bertram Edises, of San Francisco, Calif., for the CIO. Tobriner and Lazarus, by Mr. Mathew 0. Tobriner, of San Fran- cisco, Calif., for the AFL. Mr. James Zett, of counsel to the Board. DECISION AND ORDER On April 23, 1946, Trial Examiner T. B. Smoot issued his Inter- mediate Report in the above-entitled proceeding, finding that the respondent had engaged in and was engaging in certain unfair labor practices and recommending that the respondent cease and desist therefrom and take certain affirmative action as set forth in the copy of the Intermediate Report attached hereto. Thereafter, the respond- ent and the AFL filed exceptions to the Intermediate Report with sup- porting briefs. On July 3, 1946, the Board heard oral argument at Washington, D. C., in which the.C. P. & G., the AFL, and the CIO participated. The Board has reviewed the rulings of the Trial Examiner and finds that no prejudicial error was committed. The rulings 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, with the following additions and modifications : 1. In the Jones cC Laughlin case 1 the Supreme Court held that em- ployees have a "fundamental right ... to self-organization and to IN. L. R. B. v. Jones & Laughlin Steel Corporation , 301 U. S. 1. 70 N. L. R. B., No. 12. 119 I 120 DECISIONS OF NATIONAL LABOR RELATIONS BOARD select representatives of their own choosing for collective bargaining or other mutual protection without restraint or coercion by their em- ployer" (301 U. S. at p. 33). It is also fundamental under the Act that "Congress has entrusted to the Board . . . the control of the elec- tion proceeding, and the determination of the steps necessary to con- duct that election fairly" (N. L. R. B. v. Waterman Steamship Corp., 309 U. S. 2067 227). The Circuit Courts of Appeals have, in turn, imple- mented this function of the Board, by enforcing Board orders against employers who have interfered with, restrained, and coerced em- ployees in the exercise of the freedom of choice guaranteed them under the Act.2 The Supreme Court also has voted, in affirming a Board order against an employer who actively favored one of • two competing labor organizations, that " once an employer has conferred recogni- tion on a particular organization it has a marked advantage over any other in securing the adherence of employees" (N. L. R. B. v. Penn- sylvania Greyhound Lines, Inc., 303 U. S. 261, 267). And in this respect, as well, the Circuit Courts have uniformly enforced Board orders against employers who accord contrasting treatment to rival unions with regard to collective bargaining.' Thus it is established as a matter of fundamental law under the Act that the Board is under a statutory obligation to protect the right of employees to a free choice of a bargaining representative in an uncoerced election and that the infringement of this right by an employer constitutes a clear violation of the Act. Our decision in the instant case, that the respondent violated this right of its employees, therefore announces nothing novel under the Act. Rather, it is an application of basic principles which the courts have recognized and further established. Our original Decision and Direction of Election in the representa- tion case 4 was issued on October 12, 1945. After the election was held we expressed "substantial doubt whether the results are truly 2 N. L R. B. v Franks Bros Company, 137 F ( 2d) 989, 991-992 (C. C. A. 1), affirmed 321 U. S. 702; F. W. Woolworth Company, V. N. L. R. B., 121 F. ( 2d) 658, 661 (C. C A 2) ; N. L. R. B. v. Taylor-Colquott Company, 140 F. (2d) 92, 94 (C. C. A. 4) ; N. L. R. B. V. The Tomes-Picayune Publishing Company, 130 F. (2d) 257,1258 (C. C. A. 5) ; New York Handkerchief Manufacturing Co v. N. L. R. B, 114 F. (2d) 144, 147 (C. C. A. 7 ), cert. denied 311 U. S. 704; N. L. R. B. v. Bradley Lumber Company of Arkansas, 128 F. (2d) 768, 770 (C. C. A. 9) ; The Locomotive Finished Material Company v. N. L. R. B, 142 F. ( 2d) 802, 803 (C. C. A. 10). IN. L. R B. v. John Engelhorn & Sons, 134 F. ( 2d) 553, 556 (C C A. 3) ; Berkshire Knitting Mills v. N. L. R. B., 139 F. (2d) 134, 139 (C. C. A. 3), cert. denied 322 U. S. 747; N. L. R. B. v. Rock Hill Printing and Finishing Co, 131 F. (2d) 171, 174 (C. C. A. 4) ; N. L. R. B v. Southern Wood Preserving Co., 135 F. (2d) 606, 607 (C. C. A. 5 ) ; Western Cartridge Co. v. N. L. R B., 134 F. (2d) 240, 243 (C. C. A. 7)', cert. denied 320 U. S. 746; Elastic Stop Nut Corporation v. N. L. R. B., 142 F. (2d) 371, 380 (C. C. A 8), cert. denied 323 U. S. 722; N. L. R. B. v. Idaho Refining Company, 143 F. (2d) 246, 248 (C. C. A. 9). 4 64 N. L. R. B. 138. FLOTILL PRODUCTS, INC. 121 representative of the desires of the employees who should have been eligible to vote." On February 15, 1946, we issued an order vacating and setting aside the election 5 because, as we then stated, "It is of vital importance to the Board's effectuation of the policies of the Act that the integrity of its procedures be maintained at all times and at all cost, and that the regularity of the conduct of its elections be above reproach." In setting aside the election and thus retaining within our jurisdiction the determination of the question concerning repre- sentation which we had previously found to exist, we also said : While we view the record as requiring this result, we reach it with considerable reluctance because it means that the em- ployees will have no bargaining representative to negotiate an exclusive collective agreement to cover the coming season, until a new election can be held which may result in one of the rival unions being certified. The current AFL contract will expire on March 1, and since the legal effect of the foregoing determina- tion is to keep the question of representation pending before the Board, none of the unions is entitled to an exclusive status as the bargaining agent after 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 agreements after their expiration date; 15 the inclusion of any such provision in any new agreements, or action pursuant thereto, would clearly be contrary to the proviso in Subsection 8 (3). Nothing in our decision, however, should be construed as requiring any change in the substantive condi- tions of employment now existing by virtue of the foregoing agreements. 1° See Matter of Midwest Piping & Supply Co., Inc., 63 N . L R. B. 1060. See also Matter of Ken-Rad Tube and Lamp Corporation, 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, Inc, 44 N. L. R. B. 587, 46 N. L. R. B. 1040. The respondent's conduct here went much further than that, dis- approved by the Board in the Midwest Piping case.6 In that case the employer executed the contract before a hearing was held and before the Board had issued a Decision and Direction of Election finding that a question concerning representation existed. On the facts of this case, however, we had already held the hearing and a 65 N. L. R. B. 1052. a 63 N. L. R. B. 060, 1071. 122 DECISIONS OF NATIONAL LABOR RELATIONS BOARD issued our Decision thereon at the time the parties entered into their new agreement. Thus it is clear that, despite the ample notice given to the parties herein, and in derogation of the right of the employees to vote in the 1946 elections without the handicap of having the results prejudged by the parties, the respondent and the AFL unions ex- ecuted a closed-shop contract on March 5, 1946.7 The Supreme Court has taken note of the fact that premature rec- ognition of one of several competing unions contributes potent assist- ance. Where the grant of a closed-shop contract to the union thus favored is also made, full freedom of later choice is rendered well- nigh impossible. We hold, therefore, in agreement with the Trial Examiner, that the execution of the contract under the circumstances of this case constituted interference, restraint, and coercion within the meaning of Section 8 (1) of the Act. 2. The Trial Examiner found that the respondent also violated Sec- tion 8 (3) of the Act by entering into the contract of March 5, 1946. However, in view of the state of the record and in view of our opinion that we shall effectuate the policies of the Act by our remedial order, we find it unnecessary to determine whether the execution of the con- tract also violated Section 8 (3) of the Act.8 Accordingly, we shall dismiss the complaint insofar as it alleges that the respondent violated Section 8 (3) of the Act. ORDER . Upon the entire record in the case, and pursuant to Section 10 (c) of the National Labor Relations Act, the National Labor Relations Board hereby orders that the respondent, Flotill Products, Inc., Stock- ton, California, its officers, agents, successors , and assigns shall : 1. Cease and desist from : (a) Recognizing the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, AFL, and Cali- fornia State Council of Cannery Unions, AFL, as the exclusive rep- resentative of any of its employees, in its Stockton plant, for the pur- poses of collective bargaining unless and until said organizations, or either of them, shall have been certified by the National Labor Re- lations Board as the exclusive representative of such employees; (b) Giving effect to its contract dated March 5, 1946, with Inter- national Brotherhood of Teamsters, Chauffeurs, Warehousemen, and Helpers of America, AFL, and the California State Council of Can- 4 There was no showing herein that the A. F. L. submitted any evidence of its repre- sentation when it executed the contract on March 5 , 1946. See Matter of John Engelhorn & Sons, 42 N. L. R. B. 866, 877-878, enforced 134 F. (2d) 553 (C. C A. 3). 8 See Matter of Worthtington Creamery and Produce Company, 52 N. L. R. B. 121, 122; Matter of Palmer Fruit Company, 51 N. L. R. B . 924; 925. a FLOTILL PRODUCTS, INC. 123 nery Unions, AFL, or to any extension, renewal, modification, or sup- plement thereof, or to any superseding contract with those labor or- ganizations or any labor organizations or affiliate thereof, unless or until said organizations, or either of them, shall have been certified by the Board as the representative of the employees in its Stockton plant; (c) In any like or related manner interfering with, restraining, or coercing its employees in the exercise of the right to self-organization, to form, join or assist Food, Tobacco, Agricultural and Allied Workers Union of America, CIO, or any other labor organizations, to bargain collectively through representatives of their own choosing and to en- gage 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 Board finds will effectuate the policies of the Act : (a) Withdraw and withhold all recognition of the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, AFL, and California State Council of Cannery Unions, AFL, as the exclusive representatives of any of its employees in its Stockton plant, for the purposes of collective bargaining, with respect to rates of pay, wages, hours of employment, and other conditions of employment, unless and until said organizations, or either of them, shall have been certified by the National Labor Relations Board as the representative of such employees; (b) Post at its plant at Stockton, California, copies of the notice attached to the Intermediate Report, marked "Appendix A." 9 Copies of said notice shall, after being duly signed by respondent's repre- sentative, be posted by the respondent immediately upon receipt thereof, and maintained by it for sixty (60) consecutive days there- after, in conspicuous places, including all places where notices to em- ployees are customarily posted. ]Reasonable steps shall be taken by the respondent to insure that said notices are not altered, defaced, or covered by any other material; (c) Notify the Regional Director for the Twentieth Region in writ- ing, 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 its employees within the mean- ing of Section 8 (3) of the Act, be, and it hereby is, dismissed. 9This notice, however, shall be, and it hereby is, amended by striking the last sentence of the last paragraph commencing "We will not discriminate . . ." and by striking from the first paragraph thereof the words "RECOMMENDATIONS OF A TRIAL EXAMINER," and substituting in lieu thereof the words "A DECISION AND ORDER." 124 DECISIONS OF NATIONAL LABOR RELATIONS BOARD INTERMEDIATE REPORT Mr. David Aaron, for the Board. Mr. Jefferson E. Peyser, of San Francisco, Calif., and Mr. Alfred Goldberg, of Milwaukee, Wis., for the Respondent. , Gladstein, Anderson, Resner, Sawyer and Edises, by Mr. Bertram Edises, of San Francisco, Calif., for the CIO. Tobriner and Lazarus, by Mr. Mathew 0. Tobriner, of San Francisco, Calif., for the AFL. STATEMENT OF THE CASE Upon charges duly filed by the Food, Tobacco, Agricultural and Allied Workers Union of America, CIO, herein, called the CIO, the National Labor Relations Board, herein called the Board, by its Regional Director for the Twentieth Region, issued its complaint dated March 26, 1946, against Flotill Products, Inc., herein 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) and (3), 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 Respondent, CIO, and International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, AFL, and California State Council of Cannery Unions, AFL, herein jointly called the AFL, parties to the contract. With respect to the unfair labor practices, the complaint alleged that Respond- ent: (1) urged, persuaded and warned its employees not to become members of the CIO, demanded that they become and remain members of the AFL, threaten- ing them with discharge if they failed to do so, granted access to its plant to representatives of the AFL and refused access to its plant to representatives of the CIO; and (2) that during the pendency of a collective bargaining election at the Respondent's plant in Stockton, California, between the AFL and CIO, Respondent executed an exclusive bargaining agreement with the AFL despite a provision in the Board's Supplemental Decision and Order, dated February 15, 1946, which stated that Respondent should not grant exclusive recognition either to the CIO or to the AFL, that because of all the alleged acts set forth above, the agreement was illegal and void, and Respondent interfered with, restrained, and coerced its employees in violation of Section 8 (1) and (3) of the Act. Thereafter, the Respondent and the AFL filed answers denying the com- mission of any unfair labor practices. Pursuant to notice a hearing was held at Stockton, California, on April 9, 1946, before the undersigned, T. B. Smoot, the Trial Examiner duly designated by the Chief Trial Examiner. At the opening of the hearing the AFL and Respondent moved to dismiss the complaint on various alternative grounds. Ruling on these motions was reserved and the motions are hereby denied for the reasons set forth in Section III below. At the close of the hearing Board's counsel moved to conform the pleadings to the proof. This was granted with- out objection and oral argument, in which counsel for the Board, the CIO, and,the AFL participated, was heard and is part of the record. The parties were granted leave to file briefs with the undersigned and the Respondent and the AFL filed briefs. FLOTILL PRODUCTS, INC. 125 Upon the entire record in the case and upon his observation of the witnesses, the undersigned makes the following : FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT The Respondent, Flotill Products, Inc., Is a California corporation operating a plant at Stockton, California, where it is engaged in the canning and process- ing of fruits and vegetables. In the course and conduct of its business , respond- ent causes in excess of 50 percent of the products of its Stockton plant, valued in excess of $3,000,000 annually, to be sold and transported in interstate and foreign commerce from its Stockton plant to States and territories of the United States other than the State of California and to foreign countries. The Respondent concedes that it is engaged in commerce within the meaning of the Act. II. THE ORGANIZATIONS INVOLVED Food, Tobacco, Agricultural and Allied Workers Union of America, CIO, and International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Help- ers of America, AFL, and California State Council of Cannery Unions, AFL, are labor organizations admitting to membership employees of Respondent's Stockton plant. III. THE UNFAIR LABOR PRACTICES A. Sequence of events 1. Events preceding the election Respondent, since 1941, had contractual relations with the AFL,' with the latest contract expiring March 1, 1946. Although Blot a member of the Cali- fornia Processors and Growers, Inc., herein called CP & G, Respondent would "subscribe" to the contract between that organization and the AFL by so notifying the AFL by letter, and would also sign a contract or memorandum embodying matters not covered in the so-called "Master" agreement. At least the contract expiring March 1, 1946, between the AFL and respondent included a closed-shop provision? During the summer of 1945, several petitions were filed alleging that a question affecting commerce had arisen concerning the representation of the employees of respondent's Stockton plant. Petitions alleging the same question were filed against numerous other companies in the same geographical area, some of the companies being members of the CP & G, and many, like respondent, not being members of this association. Upon an appropriate order of the Board, consoli- 2 Through predecessor organizations 2 Testimony on this point was by Arthur H. Heiser, Assistant Secretary and Personnel Director of respondent. This is beside the "Master" agreement which had a preferential hiring provision . The contracts were not offered in evidence, counsel for respondent and AFL stating that they could not find copies without adjourning the hearing Counsel for the Board and for the CIO disputed the fact that the contracts had a closed-shop provision, as that the "Master" contract had been adopted but were unable to offer any evidence on the issue. 126 DECISIONS OF NATIONAL LABOR RELATIONS BOARD dated hearings were held during July, August and September 1945, in which these various companies, including respondent, were represented. Sometime during Sptembr 1945, an AFL sponsored meeting was held in the respondent's plant, starting prior to the luncheon period, where AFL representa- tives spoke to the employees and answered questions from the floor. No repre- sentatives of respondent were present but obviously, the meeting could not have been held without its knowledge. The CIO never requested the privilege of holding a meeting in the plant. On October 5, 1945, the Board issued a telegraphic order of direction of election In the consolidated case,' in which all production and maintenance employees in respondent's Stockton plant were found to be an appropriate unit 4 and the elec- tion was scheduled by the Board's Regional Director for October 15. Both the CIO and AFL in their pre-election campaigning used sound trucks' but while the CIO truck played its records from outside the fence surrounding the plant at least on one occasion the AFL truck was driven inside the fence and its re- cordings were played from this vantage point. The CIO never requested this privilege. A day or two prior to the election, Lottie Mundello, head forelady at the Stock- ton plant, approached two employees who were discussing the election, one of whom said to her, "We didn't know which way to vote " Mundello replied, "Well, I, will tell you girls, you had better vote AFL. That is the better of the two unions." Also, a day or so prior to the election, Jean Hill and Elvira Repetto, employees of disputed supervisory status, made statements to other employees indicating their preference for the AFL. The election was held as scheduled with the result being inconclusive' 2. Events subsequent to the election The AFL filed objections to all the elections held pursuant to the Bercut Rich- ards decision , including the election held among respondent's Stockton plant employees. In the meantime, on November 17 or- 18, 1945, Frank Sandrio, em- ployee of the Stockton plant, was told by the Superintendent that he was not in good standing with the AFL and would have to see the union about it before he could work any longer. The AFL official he saw told him that shortly'he would receive a letter on the matter . This letter , which he received , advised him that he was to stand trial before the Executive Board of the AFL. He did not appear for the trial and subsequently was suspended from the AFL for a 6-month period and has not since worked for respondent? This case has become known as the "Bercut Richards" case. The same unit was found for Respondent 's Modesto plant and many other employers. The CIO "sound truck" in reality was a sedan with record playing devices attached. e The vote was as follows in the Stockton plant of respondent : Approximate number of eligible voters ------ ------------------------ 305 Valid votes counted------------- --------------------------------- 205 Votes cast for [AFL]____________________________________________ 105 Votes cast for [ CIO] --------------------------------------------- 100 Votes cast for [Independent ]____________________________________ 0 Votes cast against participating labor organizations ------------------ 0 Challenged ballots------------------------------- ---------------- 20 Void ballots----------------------------------------------------- 7 Until Sandrio commenced testifying , neither the AFL nor respondent , by the pleadings or otherwise, had been advised that the Board was alleging that an employee had been dis- FLOTILL PRODUCTS, INC. 127 On January 16, 1946, the Regional Director of the Board issued his Report on Objections to the election and on February 15, 1946, the Board issued a "Supple- mental Decision and Order" in the consolidated case wherein all the elections were vacated and set aside. The Board anticipated conducting new elections in the near future and stated the following in its decision : 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, the employers may not, pend- ing a new election, give preferential treatment to any of the labor organiza- tions involved, although they may recognize each one as a 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 agreements after their expiration date; the inclusion of any such provision in any new agree- ments, or action pursuant thereto, would clearly be contrary to the proviso in subsection 8 (3). Nothing in our decision, however, should be construed as requiring any change in the substantive conditions now existing by virtue of the foregoing agreements. Respondent received a copy of the Board's decision prior to March 1, but never- theless on March 5, 1946, entered in It contract with the AFL recognizing the AFL as the exclusive representative of its employees at its Stockton plant for the purposes of collective bargaining with the respondent and requiring as a condition of employment membership in the AFL. The Respondent admits that since March 5, 1946, it has enforced and given effect to said agreement. B. Conclusions 1. Interference, restraint, and coercion sans the 1946 contract The AFL sponsored meeting in the plant in September 1945, the admittance of the AFL sound truck into the grounds of respondent's plant, the remarks of Mundello, Hill and Repetto shortly prior to the election, and the discharge of Sandrio in November 1945 were all alleged by the Board to constitute inter- ference, restraint, and coercion of its employees by respondent in violation of Section 7 of the Act. The CIO never requested the privilege of sponsoring a meeting of employees in the plant and there is no showing that had it done so the privilege would have charged in violation of the Act and both objected to the testimony on the ground of sur- prise. Counsel for the Board, supported by the CIO, argued that Paragraph III-a of the complaint was sufficiently broad to include discharges even though they were not alleged to be in violation of Section 8 (3) of the Act. Counsel for the Board did not attempt to amend the complaint at the hearing . The objections of respondent and AFL to the testi- mony were overruled and the testimony was allowed solely as being in support of Section III-A of the complaint wherein only threats of discharge and not actual discharges were alleged. 128 DECISIONS OF NATIONAL LABOR RELATIONS BOARD been refused. The CIO also never requested permission to have its sound truck operate within the plant grounds and again there was no proof that this privilege would have been denied to it. Granting of these privileges to one of two competing organizations might well be discriminatory were it shown that the other organization was denied the same privileges or could reasonably assume that requesting the privileges would be futile. But without such proof the .charge of discrimination as to these acts fails. As heretofore related, Jean Hill and Elvira Repetto made remarks to workers favoring the AFL and Repetto also took CIO application cards from three girls and gave other girls AFL buttons to replace their CIO buttons. The two em- ployees who testified about the remarks made by Hill and Repetto said these persons were "foreladies" or "floorladies" 8 and were in a supervisory capacity. Respondent's undenied testimony was that Hill was not a floorlady or forelady but was a personnel clerk with the following duties : registering prospective employees, taking prospective employees to the plant, keeping personnel records and checking on absenteeism, and that Hill had no authority to hire, promote, discharge nor effectively to recommend such action. Testimony on behalf of respondent regarding forelady or floorlady Repetto was that her duties were to show new employees how to perform their duties, inspect work and substitute on the production line ; that Repetto had no authority to hire, promote, discharge, discipline, or effect changes in the status of employees or effectively recommend such action, that she was a member of the AFL, was on the regular employee seniority list and voted in the election although her vote was challenged by the CIO teller and impounded by the Board.' Counsel for the Board and for the CIO argued that under Board decisions if the employees reasonably believe certain persons to be supervisors and those persons, although members of a competing union, campaign for that union they are acting in the interest of the respondent in violation of the Act. This is not a correct construction of Board and Court decisions," unless a definite hostility by the respondent is shown toward one of the competing unions wherein those thought to be superiors are reflecting the known policy of the respondent. This latter element is lacking in the present case, and the undersigned finds that Repetto and Hill were not supervisors and were not acting on behalf of respondent in making their statements favoring the AFL. Head forelacy Lottie Mundello, as heretofore related, joined in a discus- sion of the election a day or so prior thereto and expressed her opinion that the AFL was the better of the two unions. There was testimony that she had been expressly instructed by respondent not to engage in such discussions. Ordinarily such instructions, never conveyed to the employees as a body, cannot relieve respondent of responsibility for anti-union statements 31 Here, however, this expression of preference was the only one shown to have been made by a super- visor and without any other showing of anti-CIO bias prior to the election this isolated statement's does not seem to the undersigned to warrant a finding of violation of Section 7 of the Act. 8 These terms were used interchangeably in the plant. 9 The Regional Director in his "Report on Objections" held Repetto and other foreladies of her'ilk not to be supervisors. 11 See International Association of Machinists v. N. L. R. B., 311 U. S. 72. 11 In the Matter of Bird Machine Company , 65 N. L. R. B. 311. " The employee to whom the statement was made testified it did not change her attitude as to voting. FLOTILL PRODUCTS, INC. 129 The Board alleged that respondent violated Section 7 of the Act by discharging Sandrio on November 17 or 18, 1945. Respondent averred he was discharged on request of the AFL for not being in good standing in that union and thus pursuant to their closed-shop contract which provided that employees had to join the AFL and remain members thereof. There was testimony that such a contract was in effect, which the undersigned credits The Board decision in the Bercut Richards case which was issued February 15, 1946, stated, "Moreover, no requests for dis- charges resulting from activity in the election are justified even under the present [closed-shop] agreement." This decision did not issue until months after Sandrio's discharge but the case law upon which that statement was based is well estab- lished. However, there is no showing that Sandrio was active in or even par- ticipated in the election, while the record clearly shows that on a statement by the AFL that he was not in good standing with them, respondent discharged him pursuant to their contract and the undersigned so finds:' The undersigned finds that the AFL sponsored meeting in the plant in September 1945, the admittance of the AFL sound truck within the plant grounds, the remarks of Lottie Mundello, Jean Hill and Elvira Repetto shortly prior to the election and the discharge of Sandrio did not constitute interference, restraint, and coercion of its employees by respondent in violation of Section 7 of the Act. 2. The 1946 contract The Board in its opinion in the Bercut Richards case, rendered February 15, 1946, specifically stated as quoted heretofore, that "In accordance with well established principles, the employers may not, pending a new election, give prefer- ential treatment to any of the labor organizations involved . . ." This decision was received by the respondent herein prior to March 1, 1946, yet a few days later it signed a closed-shop contract with the AFL. Even had the Board in its Bercut Richards decision not called attention to the "well established principles" respondent would have been bound thereby. The instant case is directly in line with the Midwest Piping case14 decided September 21, 1945, where the Board held that the respondent therein violated the Act by entering into a "union shop" agreement with one union when respond- ent knew at the time the contract was executed "that there existed a real question concerning the representation of the employees in question." In the present case, knowledge of the existence of the question concerning representation could not be in doubt; the election itself was inconclusive; it had been set aside and a new election was pending. All this respondent knew prior to its signing the 1946 contract. Respondent and the AFL averred : that having contracted together for years, until a new bargaining agency is found to represent the employees, the AFL continues to represent them and respondent not only can but is obligated, accord- ing to Board decisions, to negotiate and contract with the AFL. This contention misconstrues Board decisions. Truly, the Board has held consistently that a certified bargaining agent must be accorded a due opportunity to function before a new agency may be chosen but that issue is not present here. Rather the 18 It was not alleged that Sandrio's discharge was also in violation of Section 8 (3). See footnote 7 for limited admittance of his testimony. 14 63 N L R. B. 1060. See also Elaatic Stop Nut Corporation v. N. L. R. B., 142 F. (2d) 371 (C. C. A. 8), cert. denied 323 U. S. 722. 130 DECISIONS OF NATIONAL LABOR RELATIONS BOARD instant case is covered by the Phelps Dodge decision'' wherein the Board stated "We are of the opinion that if, during the pendency of an election directed by the Board to resolve a question concerning representation, an employer extends or renews an existing contract with a labor organization, or makes a new one, he violates the Act insofar as that organization is accorded recognition as exclu- sive bargaining representative or employees are required to become or remain members thereof as a condition of employment." Certainly, there is no pre- sumption of continuing majority where, as here, the Board has ruled, that a question concerning representation exists. Another contention brought forward by the AFL and adopted by the respondent was that by stating in the Bercut Richards decision of February 15, 1946, that respondent should not grant exclusive representation to the CIO or the AFL, the Board had issued an "order" and that the appropriate remedy was for the Board to file a petition in the Circuit Court of Appeals, and not schedule a hearing before a Trial Examiner, and further, that by so "providing" the respond- ent should not contract with the AFL the Board had prejudged the instant case. These contentions are also without merit. The Board in its Supplemental Deci-° sion in the Bercut Richards case merely called attention to the "well established principles" of the Board and neither issued an "order" in that respect nor prejudged the present case. The undersigned finds that by entering into the closed-shop contract with the AFL on March 5, 1946, with knowledge of the pending proceedings for the deter- mination of representatives, the respondent indicated its approval of the AFL, accorded it unwarranted prestige, encouraged membership therein, discouraged membership in the CIO, and thereby rendered unlawful assistance to the AFL, which interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act, and has thereby engaged in and is engaging in unfair labor practices within the meaning of Section 8 (1) of the Act. The undersigned further finds that by the terms contained in the contract of March 5, 1946, between the respondent and the AFL, the respondent has dis- criminated in regard to terms and conditions of employment in order to encourage membership in the AFL and to discourage membership in the CIO and has thereby engaged in and is engaging in unfair labor practices within the meaning of Section 8 (3) of the Act 16 IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES ON COMMERCE The activities of the respondent set forth in Section III, above, occurring in connection with the operations of the respondent described in Section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. 15 In the Matter of Phelps Dodge Copper Products Corporation, Habirshaw Cable and Wire Division, 63 N. L. R. B. 686. See also N. L. R. B. v. Southern Wood Preserving Com pany, 135 F. ( 2d) 606 (C. C. A. 5) ; N. L. R. B. v. John Engelhorn d Sons, 134 F (2d) 553 (C. C A. 3). is See Jefferson Electric Company v N L R B., 102 F. (2d) 949, at page 955 (C C A. 7), for rationale on Section 8 (3) being violated where facts are similar to those herein. FLOTILL PRODUCTS, INC. V. THE REMEDY 131 Having found that the respondent has engaged in certain unfair labor practices, the undersigned will recommend that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. It has been found that the respondent has unlawfully assisted the AFL, and interfered with the CIO by recognizing and entering into a closed-shop contract with the AFL, as the exclusive representative of its employees in its Stockton plant. Obviously a free selection of a bargaining representative cannot be made where recognition in a contract, requiring membership of all the employees, has been accorded to one of the competing unions. The undersigned, accordingly, recommends that the respondent cease and desist from recognizing the AFL as such exclusive representative unless and until it shall have been certified as such by the Board. Since the contract of March 5, 1946, perpetuates the re- spondent's unlawful assistance` to the AFL and precludes the employees from presently exercising their right to select a bargaining representative of their own choice, the undersigned further recommends that the respondent cease giving effect to the contract of March 5, 1946, or to any extension, renewal, modification or supplement thereof, unless and until it shall have been certified by the Board as the exclusive representative of the employees in its Stockton plant. Nothing herein, however, should be construed as requiring the respondent to vary any wage, hour, seniority or other substantive features of its relations with the employees themselves, which the respondent has established in the performance of this contract, or to prejudice the assertion by the employees of any rights they may have under such agreement. Upon the basis of the above findings of fact and upon the entire record in the case, the undersigned makes the following : CONcLusIONs OF LAW 1. Food, Tobacco, Agricultural and Allied Workers Union of America, CIO, and International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, AFL, and California State Council of Cannery Unions, AFL, are labor organizations within the meaning of Section 2 (5) of the Act. 2 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. 3. By discriminating in regard to terms and conditions of employment, thereby encouraging membership in the International Brotherhood of Teamsters, Chauf- feurs, Warehousemen and Helpers of America, AFL, and California State Council of Cannery Unions, AFL, and discouraging membership in the Food, Tobacco, Agricultural and Allied Workers Union of America, CIO, the respondent has engaged in, and is engaging in, unfair labor practices within the meaning of Sec- tion 8 (3) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2 (6) and (7) of the Act. 712344-47-vol. 70-10 132 DECISIONS OF NATIONAL LABOR RELATIONS BOARD RECOMMENDATIONS Upon the basis of the above findings of fact and conclusions of law, the under- signed recommends that the-respondent, Flotill Products, Inc., Stockton, Cali- fornia, its officers, agents, successors, and assigns shall : 1. Cease and desist from : (a) Discouraging membership in the Food, Tobacco, Agricultural and Allied Workers Union of America, CIO, or any other labor organization of its employees, by discriminating in regard to terms and conditions of employment; (b) Recognizing the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, AFL, and California State Council of Cannery Unions, AFL, as the exclusive representative of any of its employees, in its Stockton plant, for the purposes of collective bargaining unless and until said organizations, or either of them, shall have been certified by the National Labor Relations Board as the exclusive representative of such employees ; (c) Giving effect to its contract dated March 5, 1946, with International Brotherhood of Teamsters, Chauffeurs, Warehousemen, and Helpers of America, AFL, and the California State Council of Cannery Unions, AFL, or to any ex- tension, renewal , modification, or supplement thereof, or to any superseding contract with these labor organizations or any labor organizations or affiliate thereof, unless or until said organizations, or either of them, shall have been certified by the Board as the representative of the employees in its Stockton plant ; (d) In any like or related manner interfering with, restraining, or coercing its employees in the exercise of the right to self-organrs.ltron, to fori,i, join or assist Food, Tobacco, Agricultural and Allied Workers Union of America, CIO, or.any other labor organization, to bargain collectively through representatives of their own choosing and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection as guaranteed in Section 7 of the Act. 2. Take the following affirmative action which the undersigned finds will effectuate the policies of the Act : (a) Withdraw and withhold all recognition of the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, AFL, and California State Council of Cannery Unions, AFL, as the exclusive representatives of any of its employees in its Stockton plant, for the purposes of collective bar- gaining, with respect to rates of pay, wages, hours of employment, and other conditions of employment, unless and until said organizations, or either of them, shall have been certified by the National Labor Relations Board as the repre- sentative of such employees ; (b) Post at its plant at Stockton, California, copies of the notice attached hereto marked "Appendix A." Copies of said notice, to be furnished by the Regional Director for the Twentieth Region shall, after being duly signed by respondent's representative, be posted by the respondent immediately upon receipt thereof, and maintained by it for sixty (60) consecutive days there- after, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the respondent to insure that said notices are not altered, defaced, ' or covered by any other material ; (c) File with the Regional Director for the Twentieth Region, on or before ten (10) days from the receipt of this Intermediate Report, a report in writing I FLOTILL PRODUCTS, INC. 133 setting forth in detail the manner and form in which the respondent has com- plied with the foregoing recommendations. It is further recommended that, unless on or before ten (10 ) days from the receipt of this Intermediate Report the respondent notifies said Regional Direc- tor in writing that it will comply , with the foregoing recommendations, the National Labor Relations Board issue an order requiring the respondent to take the action aforesaid. As provided in Section 33 of Article II of the Rules and Regulations of the National Labor Relations Board, Series 3, as amended , effective November 27, 1945, any party or counsel for the board may within fifteen ( 15) days from the date of the entry of the order transferring the case to the Board , pursuant to Section 32 of Article II of said Rules and Regulations file with the Board, Rochambeau Building, Washington 25, D. C., an original and four copies of a statement in writing setting forth such exceptions to the Intermediate Report or to any other part of the record or proceeding ( including rulings upon all motions or objections ) as he relies upon, together with the original and four copies of a brief in support thereof. Immediately upon the filing of such state- ment of exceptions and/or brief, the party or counsel for the Board filing the same shall serve a copy thereof upon each of the other parties and shall file a copy with the Regional Director. As further provided in said Section 33, should any party desire permission to argue orally before the Board, request therefor must be made in writing within ten (10 ) days from the date of the order transferring the case to the Board. T B. SMOOT, Trial Examiner. Dated April 23, 1946. APPENDIX A NOTICE TO ALL EMPLOYEES Pursuant to the recommendations of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, we hereby notify our employees that : WE WILL NOT recognize International Brotherhood of Teamsters , Chauf- feurs, Warehousemen and Helpers of America, AFL, and the California State Council of Cannery Unions, AFL , as the exclusive representatives of any of our employees in our Stockton plant, for the purposes of collec- tive bargaining, unless and until said organizations , or either of them, shall have been certified by the Board as the representative of such employees. WE WILL NOT give effect to our contract dated March 5, 1946 , with Inter- national Brotherhood of Teamsters , Chauffeurs , Warehousemen and Helpers of America , AFL, and California State Council of Cannery Unions, AFL, or to any extension , renewal, modification or supplement thereof, or to any superseding contract with said labor organizations , or either of them, unless and until said organizations , or either of them, shall have been certified by the Board as the representative of the employees in our Stockton plant. 0 134 DECISIONS OF NATIONAL LABOR RELATIONS BOARD WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of their right to self-organization, to form labor organizations, to join or assist the Food, Tobacco, Agricul- tural and Allied Workers Union of America, CIO, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purposes of collec- tive bargaining or other mutual aid or protection. All our employees are free to become or remain members of the Food, Tobacco, Agricultural and Allied Workers Union of America, CIO, 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. FLOTILL PRODUCTS, INC. 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. D