Lincoln Packing Co.

In the Matter of LINCOLN PACKING COMPANY and FOOD, TOBACCO, AGRICULTURAL & ALLIED WORKERS UNION OF AMERICA, C. I. O. and INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WARE- HOUSEMEN AND HELPERS OF AMERICA, A. F. OF L. and CALIFORNIA STATE COUNCIL OF CANNERY UNIONS, A. F. OF L., PARTIES TO THE CONTRACT Case No. 20-C-1.438.Decided August 19,1946 Mr. Robert E. Tillman, for the Board. Downey, Brand and Seymour, by Mr. John F. Downey, of Sacra- mento, Calif., for the Respondent. Gladstein, Andersen, Resner, Sawyer, and Edises, by Mr. Bertram Edises, of San Francisco, Calif., for the C. I. O. Tobriner and Lazarus, by Mr. Mathew 0. Tobriner, of San Fran- cisco, Calif., for the A. F. of L. Mr. Edward H. Moore, of Oakland, Calif., appearing specially for California Processors and Growers, Inc. Mr. Julius Topol, of counsel to the Board. DECISION AND ORDER On April 18, 1946, Trial Examiner Thomas S. Wilson issued his Intermediate Report in the above-titled proceeding, finding that the respondent had engaged in and was engaging in certain unfair labor practices, and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Inter- mediate Report attached hereto. Thereafter, the respondent and the AFL filed exceptions to the Intermediate Report and supporting briefs. On July 2, 1946, the Board at Washington, D. C., heard oral argument in which the respondent, the C. P. & G., the AFL, and the FTA-CIO participated. The Board has reviewed the rulings of the Trial Examiner at the hearing and finds that no prejudicial error lias been committed. The rulings are hereby affirmed. The Board has considered the Inter- mediate Report, the exceptions and briefs, and the entire record in the case, and hereby adopts the findings, conclusions, and recommenda- 70 N. L. R. B., No. 13. 135 136 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tions of the Trial Examiner, with the following addition and modi- fication : 1. In accordance with the principles -enunciated in the Flotill Products case,' we find, as did the Trial Examiner, that the respondent, by concluding a closed-shop agreement with the AFL on February 27, 1946, during the pendency of a representation proceeding before the Board involving employees covered by the contract, interfered with, restrained, and coerced its employees,' within the meaning of Section 8 (1) of the Act. 2. We find it unnecessary, for the reasons set forth in the Flotill case, to determine whether, as found by the Trial Examiner, the ex- ecution of the closed-shop agreement in the present case also con- stituted a violation of Section 8 (3) of the Act. We shall, therefore, 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 orders that the respondent, Lincoln Packing Company, Lin- coln, California, and its officers, agents, successors, and assigns shall: 1. Cease and desist from : (a) Recognizing International Brotherhood of Teamsters, Chauf- feurs, Warehousemen and Helpers of America, A. F. of L., and Cali- fornia State Counsel of Cannery Unions, A. F. of L., as the exclusive representative of its employees for the purpose of collective bargain- ing, 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; (b) Giving effect to its contract dated February' 27, 1946, with International Brotherhood ' of Teamsters, Chauffeurs, Warehousemen and Helpers of America, A. F. of L., and California State Council of Cannery Unions, A. F. of L., or to any extension, renewal, modifica- tion, or supplement thereof, or to any superseding contract with those labor organizations, or any labor organization or affiliate thereof, unless and until said organizations, or either of them, shall have been certified by the Board as the representative of the respondent's employees; (c) In any like or related manner interfering with, restraining, or coercing its employees in the exercise 'of the right to self-organization, to form labor organizations, to join or assist Food, Tobacco, Agricul- tural and Allied Workers of America, C. I. 0., or any other organiza- tion, to bargain collectively through representatives of their own choosing, and to engage in concerted activities, for the purpose of 'Matter of Flotill Products, Inc., 70 N. L. R. B. 119. LINCOLN PACKING COMPANY 137 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 from International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, A. F. of L., and California State Council of Cannery Unions, A. F. of L., as the exclusive representative of its employees for the purpose of collective bargaining with respect to rates of pay, wages, hours of employment, and other conditions of employment, un- less 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 Lincoln, California, copies of the notice attached to the Intermediate Report herein, marked "Appendix A." 2 Copies of said notice, to be furnished by the Regional Director for the Twentieth Region, shall, after being duly signed by the respond- ent's representative, be posted by the respondent immediately uponu receipt thereof, and maintained by it for sixty (60) consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the respondent to insure that said notices are not altered, defaced, or covered by any other material; (c) Notify the Regional Director for the Twentieth Region, 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 meaning of Section 8 (3) of the Act, be, and it hereby is, dismissed. INTERMEDIATE REPORT Mr. Robert E. Tillman, for the Board. Downey, Brand and Seymour, by John F. Downey, of Sacramento, Calif., for the Respondent. Gladstevn, Anderson, Resner, Sawyer, and Edises , by Bertram Edises, of San Francisco, Calif., for the C. I. 0. Tobrzner and Lazarus , by Mathew 0. Tobriner, of San Francisco, Calif., for the A. F. of L. Mr. Edward H. Moore, of Oakland, Calif., appearing specially for California Processors and Growers, Inc. STATEMENT OF THE CASE Upon a first amended charge duly filed March 21, 1946, by Food, Tobacco, Agricultural and Allied Workers Union of America, CIO, herein called the 2 This 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 substituting the words "A Decision and Order" in lieu of the words "Recommendations of A Trial Exam- iner" appearing in the first paragraph. 138 DECISIONS OF NATIONAL LABOR RELATIONS BOARD FTA-CIO, the National Labor Relations Board, herein called the Board, by its Regional Director for the Twentieth Region, hereinafter referred to as Regional Director, issued its complaint, dated March 22, 1946, against the Lin- coln Packing Company, herein called the Respondent and International Brother- hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, A. F. of L., and California State Council of Cannery Unions, A. F. of L., herein called the AFL, 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 the Respondent, FTA-CIO, and AFL With respect to the unfair labor practices the complaint alleged that during the period while a question of representation between AFL and FTA-CIO at the Respondent's plant was pending and undecided before the Board, the Respond- ent executed an exclusive bargaining agreement with the AFL despite the directive contained in the Board's Supplemental Decision and Order dated February 15, 1946, issued in the representation proceeding that Respondent not execute an exclusive agreement with either FTA-CIO or AFL, and that by signing said exclusive agreement at said time the 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 wherein certain facts were admitted but the commission of any unfair labor practices was denied. Pursuant to notice, a hearing was held at Lincoln, California, on April 4, 1946, before the undersigned, the Trial Examiner duly designated by the Chief Trial Examiner. At the opening of the hearing, the California Processors and Growers, Inc., hereinafter referred to as the C. P. & G., were permitted to appear specially for the purpose of obj(&ting on certain stated grounds to the proceedings. At the same time the AFL and the Respondent moved to dismiss the complaint on various technical grounds. These motions to dismiss were denied with leave to renew at the close of the hearing Said motions were not renewed, but will be considered hereinafter as though renewed. The Board, the Respondent, AFL, and FTA-CIO were represdnted by counsel, participated in the hearing, and were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing on the issues. At the conclusion of the hearing all parties engaged in oral argument, and the Respondent and the AFL thereafter filed briefs with the undersigned. Upon the entire record in the case and from his observation of the witnesses, the undersigned makes the following: FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENT Lincoln Packing Company is a California corporation, having its principal office and only plant in Lincoln, California, where it is engaged in the business of canning fruits and vegetables. The annual sales from Respondent's products exceed $1,500,000, of which approximately 90% represents the amount of sales of products which are shipped from the plant to points outside the State of Cali- fornia. The Respondent admits 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, Inter- national Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, A. F. L., and California State Council of Cannery Workers, A. F. of L., are labor organizations admitting to membership employees of the Respondent. LINCOLN PACKING COMPANY III. THE UNFAIR LABOR PRACTICES 1. The Facts 139 The facts in the instant case are very simple and with but one minor exception, which is of no moment to the decision here, are admitted by all parties. Beginning in 1942 and extending to March 1, 1946, the Respondent maintained contractual relations with AFL, or its predecessor, AFL Cannery Workers Union, No. 20324, Sacramento County, Calif.' In July 1943 the Respondent be- came a member of C. P. & G., an organization for the purpose of handling labor relations for and on behalf of its member packing companies, hereinafter called the members, and as such member subscribed to the agreements negotiated thereafter between C. P. & G. and the AFL. The last of the contracts so ne- gotiated by C. P. & G. was by its terms to expire on March 1, 1946. On August 7, 1945, Cannery and Food Process Workers Council of the Pacific Coast, then an independent labor organization, filed with the Board a Petition for Certification alleging that a question had arisen concerning representation among the Respondent's employees, and naming both Cannery and Food Process Workers Union of the Sacramento area and "Teamsters, Chauffeurs, Ware- housemen and Helpers of America, AFL," as claiming representation in the appropriate unit, refined in the Petition as "all employees of the above named Company" excluding clerical and supervisory employees. This proceeding en- titled "In the Matter of Lincoln Packing Company and Cannery and Food Process Workers Union of Sacramento area, affiliated with Cannery and Food Process Workers Council of the Pacific Coast", became Case No. 20-R-1452. After many other Petitions had been filed by various and sundry unions in- volving many other companies engaged in the canning of fruits and vegetables, some of which, like the Respondent, were members of C. P. & G. and some of which were non-members of C. P. & G., hereinafter called the Independents, all such cases were consolidated by Order of the Board dated August 22, 1945 2 Hearings were held in these consolidated proceedings, at which the Respondent was represented by counsel for C. P. & G. On October 5, 1945, the Board issued a telegraphic order of Direction of Election in the "Bercut-Richards" case. In this order the Board found that "all production and maintenance employees of members of California Processors and Growers, Inc., excluding" certain named categories of employees, con- stituted a single appropriate unit and ordered an election to be held among such employees to determine the question of representation. In the same tele- graphic order the Board further found that the same classes of employees em- ployed by each of the Independents constituted individual, separate appropriate units and ordered individual elections held therein. The Respondent was not individually named in the body of the order but was clearly included therein among the members of C. P. & G. This telegraphic order stated that it would be followed by a written Board order. On October 9, 1945, the Respondent withdrew its membership from C. P. & G. and notified the Regional office of the Board, in San Francisco, thereof on October 11, 1945. On October 12, 1945, in compliance with the statement in the telegraphic order the Board issued its written Order and Direction of Election in' "Bercut- Richards," this Order being merely a more complete statement than that con- 1 It would not be germane to the issues here involved to trace the historical relationship between the above-named AFL affiliates. 2 This consolidated proceeding has become known as the "Bercut-Richards case" from the name of the first company mentioned in the title. 140 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tained in its prior telegraphic order . In this Order the Respondent was listed as one of member companies of C. P. & G. On October 12, 1945, the election was conducted by the Board agents among the Respondent's employees. Prior to the actual opening of the election at the Respondent's plant, Respondent's Secretary and General Manager, M. C. Gordon, informed the Board's agents that he was not sure that the election was sup- posed to be held due to, the Respondent's recent withdrawal from C. P. & G. After telegraphic communication with the Regional Director , it was determined to hold the election and then to impound the ballots, unopened, until the Board determined whether the Respondent remained an integral part of the C. P. & G unit or, by its withdrawal from C. P. & G., became a separate appropriate unit as had been provided in the case of the Independents . The election was there- upon held and the ballots impounded awaiting such Board determination. ' Between October 29, 1945, and January 5, 1946, the AFL duly filed objections to the conduct of the ballot in the several elections affecting employees of C. P. & G. and of the Independent companies . On January 16, 1945, the Regional Director issued his Report on Objections in which, among other things, he recommended that the Respondent's withdrawal from C. P. & G. be considered a valid withdrawal therefrom, that the employees of the Respondent be held to constitute a separate appropriate unit as in the case of the Independents, and that the ballots theretofore impounded be opened and counted separately. After oral argument before the Board in Washington, D C , and on February 15, 1946, the Board, with one member dissenting, issued its "Supplemental Decision and Order"- in the consolidated proceeding in which, after discussing a number of the objections to the election raised by the AFL, it stated : Upon consideration of all the foregoing facts, we are of the opinion that the elections were not, under the circumstances here presented , attended by such procedural safeguards or certainty concerning eligibility as to con- stitute a proper foundation for a ,Board certification in an industry which has been the scene of such bitter strife. There is substantial doubt whether the results are truly representative of the desires of the employees who should have been eligible to vote therein . It is of vital importance to the Board's effectuation of the policies of the Act that the integrity of its pro- cedures be maintained at all times and at all cost, and that the regularity of the conduct of its elections be above reproach . In this view of the matter, it is relatively unimportant that there is no sure proof that one party to the election was prejudiced more than the other. We therefore are constrained to conclude that the balloting was not con- ducted in accordance with our usual standards or under conditions tending to create confidence in the result or to lay the foundation for satisfactory bargaining. We are of the opinion , therefore, that the purposes of the Act will best be served by setting aside all of the elections held herein. 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 14 "See Matter of Midwest Piping & Supply Co., Inc , 63 N. L. R. B. 1060. See also Matter of Ken -Rad Tube & Lamp Corporation, 62 N. L. R. B 21." LINCOLN PACKING COMPANY 141' 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; the inclusion of any such provision in any new agreements, or action pursuant thereto, would clearly be con- trary to the proviso in Subsection 8 (3). Nothing in our decision, however, should be construed as requiring any change in the substantive conditions of employment now existing by virtue of the foregoing agreements. In order to expedite final disposition of the case, the Board will conduct new elections as soon as eligibility lists can be prepared which meet the objections discussed herein. Upon appropriate motion, the Board will explore the possibility of holding the election at an early date by use of mail ballots as well as by the manual method, provided the feasibility of this procedure, with adequate safeguards, can be demonstrated by the sub- mission of data not incorporated in the present record. As an alternative, the Board will consider holding a new manual election as early in the 1946 season as there is substantial reemployment. In setting aside these elections, we are aware of the fact that the pro- cedural defect arising from the absence of a master eligibility list is not applicable to the elections held among employees of the Independent Com- panies. However, the other defects based on uncertainty concerning the meaning of the 25-day eligibility rule and the action taken respecting employ- ees "temporarily laid off," are just as applicable to these elections as they are to the elections held among the employees in the C. P. & G. unit. We are of the opinion that by reason of these difficulties, the elections conducted among employees of the Independent Companies raise such a possibility of error that such elections should also be vacated and set aside. As a practical matter, this will be in harmony with our ruling regarding the elections in the C. P. & G. unit and will avoid inconsistent disposition of the problems of the cannery industry. ORDER IT IS HEREBY ORDERED that the elections held from October 11 to December 20, 1945, inclusive, among the employees of members of C. P. & G. and among the` employees of the Independent Companies be, and they hereby are, vacated and set aside. Signed at Washington, D. C., this 15th day of February 1946.$ The Respondent acknowledges that it received a copy of this "Supplemental Decision and Order" in due course of the mail. On or about November 20, 1945, the Respondent signed a memorandum of agreement with AFL. Respondent's General Manager could not recall the con- tents of this document at the hearing but thought "it was due to reclassifications and wages." No further evidence of its contents was presented at the hearing. On February 25, 1946, the Respondent received a registered letter from the President of FTA-CIO, which quoted verbatim from the Board's "Supplemental Decision and Order" dated February 15, 1946, the third and fourth paragraphs quoted hereinbefore. $ Italics supplied. 142 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Two days thereafter, on February 27, 1946, the Respondent and AFL executed the following contract : This MEMORANDUM OF AGREEMENT, made and entered into this twenty-seventh day of February, 1946, by and between LINCOLN PACKING CO., located at Lincoln, California, hereinafter referred to as Employer, CALIFORNIA STATE COUNCIL OF CANNERY UNIONS, A. F. of L., and CANNERY WORKERS' LNION LOCAL 857 INTERNATIONAL BROTH- ERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS, A. F. of L., hereinafter referred to as Union. WITNESSETH: That in consideration of the premises it is mutually agreed as follows : 1. It shall be a condition of employment with the Employer that all employees covered by this agreement shall become and remain members of the Union in good standing. Present employees who are not as of the date of this agreement members of the Union must become members within ten (10) days from the date hereof. Any new employees shall be required within ten (10) days of the date of hiring to become a member of the Union and thereafter remain a member in good standing. Persons who fail to maintain good standing in the Union in accordance with the by-laws thereof shall be discharged within thirty-six (36) hours after the company is so notified by the Union. In the hiring of additional employees, the employer shall give preference to unemployed members of the local Union provided such individuals have the necessary qualifications and are available within forty-eight (48) hours after being notified. As a basis for preferential consideration unemployed members of the local Union shall be required to present a clearance card from the local Union, evidencing the fact of their paid-up membership. 2. Any adjustment, in wages, hours or conditions, which may hereafter be agreed upon by the parties, shall be effective, as of March 1, 1946, and retro- active to that date. In witness whereof, the parties hereto have caused this Memorandum to be signed by their duly authorized officers this 27th day'of Feb. 1946. LINCOLN PACKING CO., By M. C. GORDON, CALIFORNIA STATE COUNCIL OF UNIONS, A. F. OF L., By ----------------------------- ---------- CANNERY WORKERS' UNION LOCAL 857, By GEORGE COLE. On or about March 19 representatives of FTA-CIO called upon the Respondent requesting a contract. M. C. Gordon for the Respondent indicated that he would be willing to execute an agreement with FTA-CIO if FTA-CIO would give proof of some representation in the plant. After PTA-CIO representatives inquired if the Respondent had executed an agreement with AFL and discovered that it had, they inquired how it would be possible in view of such exclusive agreement with AFL, for the Respondent to execute another agreement with FTA-CIO. There was some talk about the illegality of AFL's contract." FTA-CIO offered no showing of representation stating that its cards were in its Sacramento office. No agreement was ever signed between these parties. 4 The details of this conversation as testified to by FTA-CIO representative and Gordon are in conflict but which the undersigned does not find necessary to resolve. LINCOLN PACKING COMPANY 143 2. Defenses and Arguments The facts above found are conceded by all parties. Under these facts the Respondent and AFL have alleged a number of defenses and argued a number of other points. First, the Respondent contends that neither the Board 's Direction of Election or Supplemental Decision and Order applied to it because, after its withdrawal from membership in CP & G, it was not included in those orders under the CP & G membership nor mentioned in the individual enumeration of Independents and hence there was nothing pertaining to it in either order. As a corrollary to this the Respondent further contends that there was no question of representation pending before the Board as to its employees . These arguments are highly technical and completely overlook the fact that at the time of the telegraphic Order of October 5, 1945, of which the written Order of October 12 was merely confirmation, Respondent was still a member of CP & G and hence bound by that portion of the Order . They also ignore the fact that the October 12 Order names the Respondent specifically as a member of CP & G and the February 15, 1946, Order , contains the following language: The ballots in this election [ Lincoln Packing Company ] in which there were apparently no challenged ballots, have not been counted but -have been impounded, pending a determination of the questions as to whether the employees of Inncoln Packing Company should be included in the CP d G unit or should constitute a separate appropriate unit. ( Italics added.) It is therefore obvious that these Orders did apply to the Respondent and that both the question of the appropriate unit and the question of majority therein were still pending and undecided before the Board , the agency which by law had the exclusive jurisdiction to determine such questions. The Respondent and AFL both plead that the directive contained in the Sup- plemental Decision and Order dated February 15, 1946, against the execution of exclusive agreements with either of the competing unions either did not apply to the Respondent or was illegal. The first part of this contention has been an- swered. The latter part of the argument is without merit since it has long been established law that during the pendency of a representation question before the Board an employer is bound to maintain strict neutrality and not to interfere by any means with the selection of representatives of the employees own choosing. The Respondent and AFL strongly argue that in the instant case the Respondent was bound by the Act to bargain exclusively with the AFL as all 24 of its then employees were members of AFL and had authorized the Respondent in writing to check-off their dues to AFL and that the contract of February 27, 1946, was legal under the closed shop proviso of Section 8 ( 3) which permits closed shop agreements "if such labor organization is the representative of the employees as provided in Section 9 (a), in the appropriate unit covered by such agreement when made." From the pleadings of AFL and CP & G as well as the oral argu- ment made by Respondent's counsel at the hearing, as well as from the facts, the proviso clause clearly does not cover this agreement for both the question of the appropriate unit and the question of majority were still pending and undecided before the Board when this agreement was executed . The execution of check-off authorizations is not determinative of the desires of even these 24 employees for experience has proved that many employees who will execute such authorizations 144 DECISIONS OF NATIONAL LABOR RELATIONS BOARD will not vote for the same union as their bargaining agent ° in a secret election Furthermore, employment was at its lowest ebb at the time the agreement was signed, as later in the season the Respondent customarily employed as many as 400 persons, and hence Respondent's determination was made at a time when it was impossible to secure a representative determination of the question In executing the agreement of February 27, 1946, the Respondent arrogated unto itself the determination of the unit question as well as the question of majority therein, both questions which, under the circumstances here disclosed, were clearly under the exclusive jurisdiction of the Board. Moreover, it did this at a time when it knew that these very questions were pending and undecided by the Board and also at a time when it is incumbent upon the employer to maintain strict neutrality between competing unions, especially in the canning industry in California where bitterness and intense rivalry exists between the competing factions. Indeed the machinery of the Board was created for the express purpose of impartially determining the precise questions at issue, in older to eliminate the necessity of an employer having to make such decisions The Act, far from requiring the Respondent here to bargain with the AFL on February 27, required that it should refrain from so doing until after the Board's determination of the appropriate bargaining unit and the Board's election process to determine the true wishes of the employees. AFL and C. P. & G. contend that the instant proceeding is prematurely brought and should wait until after the Board has ruled upon whether, after Respondent's withdrawal from C. P & G. its employees remained a part of the C P & G unit or became a separate appropriate unit. As the Board ruled in its Supplemental Decision and Order that the bailors of the employees of the Respondent would remain impounded, pending determination of the unit question raised by Respond- ent's withdrawal from C. P. & G, it is obvious that the Board would not dismiss the Petition involving this Respondent. The instant proceeding was brought to test the legality of the February 27 agreement and to determine whether or not said agreement interfered with, restrained, and coerced the employees of the Respondent in their free choice of'a bargaining agent. The requirement that the employees enjoy complete freedom of choice in the selection of a bargaining agent remains the same whether it is ultimately determined that the employees remain a part of the C. P. & G. unit or constitute a separate appropriate unit. Hence the determination of the unit question does not affect the issues here. AFL further argues that, as AFL has been the bargaining agent for these employees for a number of years, it remained such representative until another -agent was certified and hence it had the right to renew the relationship which was then in existence. This argument is based upon the presumption that a majority once established continues until the certification of another union. But this does not mean that, in the face of conflicting representation claims by rival unions and the assumption of jurisdiction over the dispute by the Board, an employer can, with impunity, and before a decision by the Board, make a new exclusive bargaining agreement upon the expiration of the old. 5 The majority of the authorizations are dated in July 1945 and are checked-off for the Cannery Workers Union, Local 20324, a directly chartered union of the A F of L The agreement of February 27, 1946, is made with California State Council of Cannery Unions, A F of L. and Cannery Workers' Union, Local 857, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers, A F of L Theme is evidence in the record of dissatisfaction of some of the Respondent's employees with the conferring by the A. F. of L. of jurisdiction over the cannery workers to the Teanictems. The record indicates that at about this time an independent union came into the picture known as Cannery and Food Process Workers Union of Sacramento Area and it filed a petition for Investigation and Certification of representatives with the Board on, Jui^ 4, 1945, claiming to represent a majority of the employees of the Respondent nm a unit composed of all of the Respondents employees excluding cleiicai and supervisomy enmpiv}ees. LINCOLN PACKING COMPANY 145 AFL also pleaded that, by including the above-mentioned directive against exclusive agreements in its Supplemental Decision and Order, the Board has prejudged the instant case and is thereby precluded from sitting. This defense is frivolous for the Board merely reiterated a well known rule of law in its opinion. If such argument should prevail, then no court or agency which ever quoted well established law would be competent to sit on any violation of that law. Therefore the undersigned holds the pleaded defenses to be without merit. 3. Concluding Findings On October 5, 1945, the Board ordered elections to be conducted in the Bercut Richards consolidated cases which included Case No 20-R-1452 which involved the employees of the Respondent. The Board there found two general types of appropriate units : (1) the employees of member companies of C. P. & G. of which the Respondent at that time was one, and (2) the employees of the Independent Canneries as separate appropriate units. Respondent's employees as of this date were clearly in the first unit. The fact that the Respondent subsequently withdrew from membership in C. P. & G and notified the Board thereon 1 day before the election was insufficient to void the Board's Order and could only suffice as a request to the Board for a change of decision as to, the appropriate unit. The Board recognized this change by impounding the ballots of the employees of the Respondent pending is final decision on the unit question. The fact that the written Order of the Board confirming the above-mentioned telegraphic Order of October 5, 1945, was issued 1 day sub- sequent to receipt of notice by the Board's Regional Office of Respondent's with-. drawal from C. P. & G. cannot affect the binding effect of the Order on the Respondent as contended by Respondent in its brief. On February 15, 1946, the Board voided all the elections held under its Orders of October 5 and 12, 1945, because of fear that the employees had not been given the opportunity to freely express their choice of representatives. On February 27, 1946, the Respondent well knew that there remained pending and undecided before the Board the question concerning representation of its own employees, including both the question of the appropriate unit created by Respondent's withdrawal from C. P. & G. and the question of which labor organization, if any, the majority of the employees desired as their bargaining agent. The Board had exclusive jurisdiction to determine both questions. The Respondent well knew this from the Supplemental Decision and Order of Feb- ruary 15, 1946, and from the letter of FTA-CIO received by the Respondent on, February 25, 1946, quoting pertinent parts of that Decision of the Board. From these documents Respondent also knew that the Board intended to hold another election to determine the questions. This was the situation on February 27, 1946, when the Respondent and AFL. chose to disregard the exclusive jurisdiction of the Board on those matters by executing a closed shop agreement requiring that the Respondent's employees had to be members of AFL as a condition of obtaining and retaining employ- ment with Respondent. It has long been a well established principle of law that, pending the Board's investigation and certification of representatives, it is the duty of an employer to maintain an attitude of strict neutrality between, the competing labor organizations in order that the representative may be the- free and untrammeled selection of the employees' own choosing. By the execution of a new exclusive agreement with AFL at this time, and under the situation then existing, the Respondent necessarily assisted the AFL by adding to its prestige and clearly indicating to the employees its intent and 146 DECISIONS OF NATIONAL LABOR RELATIONS BOARD desire that AFL should be selected as the bargaining representative. By the closed shop terms of the agreement the Respondent necessarily coerced its employees and interfered with their free choice of representatives by forcing them into membership in AFL as a condition of employment. This necessarily encouraged membership in AFL and discouraged membership in FTA-CIO at a time when it was incumbent upon the Respondent to allow its employees to choose their own representative without coercion and interference from the employer. Under these conditions the agreement of February 27, 1946, was clearly illegal and void as violative of Section 8 (1) and (3) of the Act: The undersigned finds that the Respondent, by executing a closed shop agree- ment with one of three competing labor organizations at a time when a question of representation involving its employees is pending and undecided before the Board, interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act in violation of Section 8 (1) of the Act, and has discriminated in regard to their terms and conditions of em- ployment, thereby encouraging membership in AFL and discouraging member- ship in FTA-CIO, in violation of Section 8 (3) of the Act. Iv. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in Section III, above, occurring in connection with the operations of the Respondent's business described in Section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. v. THE REMEDY Having found that the Respondent has engaged in certain unfair labor prac- tices within the meaning of the Act, 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 unawfully assisted the AFL and interfered with FTA-CIO by recognizing and entering into a closed-shop agree- ment with the AFL as the exclusive representative of its employees. It is obvious that no free selection of a bargaining representative can be made while an agreement containing such terms remains in effect while the question con- cerning representation remains pending and undecided before the Board. In Order to restore to the employees of the Respondent their freedom of selection, it is necessary that the Respondent cease and desist from recognizing the AFL as such exclusive representative and that it cease and desist from requiring membership in the AFL as a condition of retention of employment unless and until the AFL has been certified as such representative by the Board. Since the contract of February 27, 1946, perpetuates the Respondent's unlawful assist- ance to the AFL and precludes the employees from exercising their right to select a bargaining representative of their own choice, it shall be recommended that the Respondent cease giving effect to said contract or to any extension, renewal, modification, or supplement thereof, unless and until the AFL shall be certified by the Board as the exclusive representative of the Respondent's em- ployees. Nothing herein, however, shall be construed as requiring the Respond- ent to vary any wage, hour, seniority, or other substantive features of its re- lations with the employees themselves which the Respondent has established in the performance of this contract or to prejudice the assertion of the employees of any rights they may have under such an agreement. Upon the foregoing findings of the fact and upon the entire record in this case, the undersigned makes the following: LINCOLN PACKING COMPANY 147 CONCLUSIONS OF LAW 1 Food, Tobacco, Agricultural and Allied Workers Union of America, CIO, 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 the terms and conditions of employment of its employees by the terms of the agreement dated February 27, 1946, with AFL, thereby encouraging membership in AFL and discouraging membership in FTA- CIO, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 ( 3) of the Act. 4 The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2 ( 6) and (7) of the Act. RECOMMENDATIONS Upon the basis of the foregoing findings of fact and conclusions of law, the undersigned recommends that the Respondent , Lincoln Packing Company, 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 California State Council of Cannery Unions, AFL, as the exclusive representatives of its employees for the piu poses of collective bargaining unless and until said organizations, or either of them, shall be certified by the National Labor Relations Board as the exclusive representative of such employees ; - (b) Giving effect to its contract dated February 27, 1946, with the 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 con- tiact with those labor organizations or any labor organization or affiliate thereof unless and until said organizations, or either of them, shall be certified by the Board as the representative of the Respondent's employees ; (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 labori oiganizations, to join or assist Food, Tobacco, Agricultural and Allied Workers Union of America, CIO, or any other organization, to bargain collectively through representatives of their own choosing and to engage in concerted activities for the purposes of collective bargaining or other mutual aid or protection as guar- anteed in Section 7 of the Act ; (d) In any like or related manner encouraging membership in the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, AFL, and California State Council of Cannery Unions, AFL, or 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 any term or condition of employment of any of its employees. 2 Take the following affirmative action which the undersigned finds will effectuate the policies of the Act : (a) Withdraw and withhold all recognition from the International Brother- hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, AFL, and California State Council of Cannery Unions, AFL, as the exclusive repre- sentatives of its employeees for the purposes of collective bargaining with re- 712344-47-vol 70-11 148 DECISIONS OF NATIONAL LABOR - RELATIONS BOARD- spect 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 Lincoln, 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, after being duly signed by Re- spondent's representative, shall be posted by the Respondent immediately upon receipt thereof, and maintained by it for sixty (60) consecutive days thereafter, in conspicuous places, including all 'places where notices to employees are cus- tomarily posted Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced or co\ered by any othermaterial;• (c) Notify the Regional Director for the Twentieth Region, in writing, within ten (10) days from the date of the receipt of this Intermediate Report, what steps the Respondent has taken to comply therewith. It is further recommended that unless on or before ten (10) days from the receipt of this Intermediate Report, the Respondent notifies said Regional Director 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 11 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 tiling the same shall serve a copyv-hereof 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 to the Board within ten (10) days from the date of the order transferring the case to the Board THObmAs S WILSON, Trial Fwanil ner Dated April 18, 1946. APPENDIX A NOTICE TO ALL EMP).o1EEs Pursuant to the reconmmendations 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 the Cannery Workers Union, Local 857, Interna- tional Brotherhood of Teamsters,; Chauffeurs, Warehousemen, and Helpers of America, AFL, and/or California State Council of Cannery Unions, AFL, and/or any of them, as the exclusive representative of any of our em- ployees for the purposes of collective bargaining, unless and until said organizations, or either of them, shall have been certified by the Board as the representative of such employees. LINCOLN PACKING COMPANY 149 WE WILL NOT give effect to our contract dated February 27, 1946, with California State Council of Cannery Unions, AFL, and Cannery Workers Union, Local 857, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, AFL, or to any extension, renewal modification or supplement thereof, or Ito any superseding contract with said labor organizations, or either of them, unless and until said organiza- tions, or either of them, shall have been certified by the Board as the repre- sentative of the employees of this company. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of their right to self-organization, to form labor organizations, to join or assist Food, Tobacco, Agricultural 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 collective 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 of America, CIO, or any other labor organiza- tion. We will not discriminate in regard to any term or condition of employment against any employee because of membership in or activities on behalf of any such labor organization. LINCOLN PACKING COMPANY, B. ------------------ ---------- (Representative) (Title) Dated------------------------------ This notice must remain posted for 60 days from the date hereof, and must uof be altered , defaced, or covered by any other material.