Califruit Canning Co.

In the Matter Of FRED VOLANDRI, DINO VOLANDRI, AND S. MONTANELLI, D/B/A CALFFRNIT CANNING COMPANY and FOOD, TOL'ACCO, AGRICUL- TURAL & ALLIED WORKERS UNION OF AMERICA, C. I. O. and INTER- NATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS,, WAREUOUSE- MEN AND HELPERS OF AMERICA, A. F. L., AND CALIFORNIA STATE COUNCIL OF CANNERY UNIONS, A. F. of L., AND CANNERY WORKERS, PROCESSORS, WAREHOUSEMEN AND HELPERS, LOCAL UNION No. 601. PARTIES TO THE CONTRACT Case No. l0-C-1128.-Decided April 10, 1947 Mr. Thomas J. Davis, Jr., for the Board. Mr. J. Paul St. ,Sure, by Mr. Edward H. Moore, of Oakland, Calif., for the respondents. Mr. R. L. Warren, of Stockton, Calif., for the FTA-CIO. Tobriner cfi Lazarus, by Mr. Albert Brundage, of San Francisco, ,Calif., for the A. F. of L. Mr. Seymour Cohen, of counsel to the Board. DECISION AND ORDER On October 18, 1946, Trial Examiner , Irving Rogosin issued his_ Intermediate Report in the above-entitled proceeding, finding that the respondents had engaged in and were engaging in certain unfair labor practices and recommending that they cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto. Thereafter, the respondents and the A. F. of L. filed exceptions to the Intermediate Report and supporting briefs. The Board has reviewed the rulings of the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rul- ings are hereby affirmed. The Board has considered the Intermediate Report, the exceptions and briefs of the respondents and the A. F. of L., and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations ' of the Trial Examiner. The Trial Examiner 's recommendation in Section V of the Intermediate Report, en- titled The remed y," with respect to the method foi making whole those employees against whom the respondent has been tound to have discrmnnated should, and is hereby cor- 73N L R B, No 55. 290 CALIFRUIT CANNING COMPANY ORDER 291 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 respondents, Fred Volandri, Dino Volandri, and S. Montanelli, doing business as Califruit Canning Company, Manteca, California, and their agents, successors, and as- signs shall: 1. Cease ,Ind desist from : (a) Recognizing California State Council of Cannery Unions, Cannery Workers. Processors. Warehousemen and Helpers, Local Union No. 601, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, each affiliated with the Anieri- can Federation of Labor, as the exclusive representative of their em- ployees for the purposes of collective bargaining, unless and until said organizations or any of tlneni shall be certified by the National Labor Relations Board as the exclusive representative of such employees; (b) Giving effect to their contract dated April 13, 1946, with Cali- fornia State Council of Cannery Unions, Cannery Workers, Processors, Warehousemen and Helpers, Local Union No. 601, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, each affiliated with the American Federation of Labor, or to any extension, renewal, modification, or supplement thereto, or to any superseding contract with those labor organizations, or any other labor organization or affiliate I hereof, unless and until said organizations or any of them shall be certified by the National Labor.Relations Board as the representative of the respondents' employees; (c) Discouraging nlenibershlp in Food. Tobacco, Agricultural Allied Workers Union of America. affiliated with the Congress of In- dustrial Organizations, or any other labor organization of their em- ployees, by discharging or refusing to reinstate any of their em- ployees, or in any other manner discriminating in regard to their hire and tenure of eniploylnent or any terns or condition of their employment ; (d) Encouraging membership in California State Council of Can- nery Unions, Cannery Workers, Processors, Warehousemen and Help- ers, Local Union No. 601, and International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, each affiliated with the American Federation of Labor, by acceding to any demands or requests, or yielding to any other pressure, for the discharge or re- fusal to reinstate or employ any employee or through any other form rected to, lead as follows • " . by payment to each of them of a sum of money equal to the amount which they normally would have earned as wages (luring the period from April IT, 1946, the date upon which, as alleged in the complaint, they were finally refused employ ment by icason of their failure to `clear' with the A F of L , to the date of the respondents ' offer to reinstate them , less their net earnings 3° during said period." 292 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of discrimination in regard to hire or tenure of employment or any term or condition of employment; (e) In any like or related manner interfering with, restraining, or coercing their employees in the exercise of the right to self-organiza- tion, to form labor organizations, to join or assist Food, Tobacco, Agricultural & Allied Workers Union of America, affiliated with the Congress of Industrial Organizations, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bar- gaining or other mutual aid or protection, as guaranteed in Section 7 of the Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act: (a) Offer Sophie Armendariz, Nellie Calderon, Pauline Verigin, and Telveina Lima immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their sen- iority and other rights and privileges, in the manner set forth in Section V of the Intermediate Report, entitled "The remedy"; (b) Make whole in the manner set forth in the afore-mentioned remedy section of the Intermediate Report the persons whose names appear in the immediately next preceding paragraph for any loss that they may have suffered by reason of the respondents' discrimina- tion against them; (c) Withdraw and withhold all recognition from California State Council of Cannery Unions, Cannery Workers, Processors, Warehouse- men and Helpers,•Local Union No. 601, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, each affiliated with the American Federation of Labor, as the exclusive representative of their employees for the purpose 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 any of them shall have been certified by the National Labor Rela- tions Board as the exclusive representative of such employees; (d) Post at their plant at Manteca, California, copies of the notice attached to the Intermediate Report, marked "Appendix A." Copies of the notice, to be furnished by the Regional Director' for the Twentieth Region, shall, after being duly signed by the respondents' representative, be posted by the respondents immediately upon re- ceipt thereof, and maintained by them for sixty (60) consecutive days thereafter, in conspicuous places, including all places where notices 2 Said notice , however, shall be , and it hereby is, amended by striking from the first para- graph thereof the words : "The Recommendations of a Trial Examiner" and substituting in hen thereof the words "A Decision and Order." In the event that this Order is en- forced by decree of a Circuit Court of Appeals , there shall be inserted in the notice , before the voids . "A Decision and Order," the words : "A Decree of the United States Circuit Court of Appeals Enforcing " CALIFRUIT CANNING COMPANY 293 to employees are customarily posted. Reasonable steps shall be taken by the respondents to insure that said notices are not altered, defaced, or covered by any other material; (e) Notify the Regional Director for the Twentieth Region in writinb, within ten (1C) days from the date of this Order, what steps the respondents have taken to comply herewith. AIR. JAMES J. REYNOLDS, JR., took no part in the consideration of the above Decision and Order. INTERMEDIATE REPORT Mr Thomas J. Davis, Jr., for the Board. Mr. J Pant St. Sao-C, by Mi Ed iva, d H. Moo? e, of Oakland, Calif., for the re- spondents Mr. R L. War, en, of Stockton, Calit., for the FTA-CIO. Tobrrner JG Lazar as, by Mr Albe, t Brundage, of San Francisco, Calif, for the A F of L STATEMENT OF THE CASE Upon a second amended charge duly filed by the Food, Tobacco, Agricultural & Allied Workers Union of America. C. I. 0, herein called the FTA-CIO, the Na- tional Labor Relations Board, herein called the Board, by its Regional Director for the Twentieth Region (San Francisco, California), issued its complaint dated August 1, 1946, against Fred Volandri, Dino Volandri and S. Montanelli, doing business under the firm name and style of Califruit Canning Company, herein called the respondents, alleging that the respondents had engaged in and were engaging in unfair labor practices affecting commerce within the meaning of Section 3 (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 weie duly served upon the respondents, the FTA-CIO, Inter- national Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, A. F. of L, California State Council of Cannery Unions, A. F. of L, and Cannery Workers, Processors, Warehousemen and Helpers, Local Union No 601, herein jointly and severally called the A F of L , parties to the contract With respect to the unfair labor practices, the complaint alleged, in substance, that the respondents: (1) since on or about April 1, 1946, have interfered with, restrained, and coerced their employees in the exercise of their rights guaranteed in Section 7 of the Act by (a) urging, persuading, and warning said employees to refrain from becoming or remaining members of the FTA-CIO, (b) demanding, under threat of discharge, that said employees become and remain members of the A. F. of L , (c) granting the A F. of L. representatives access to the re- spondents' plant, and otherwise assisting the A. F. of L, while denying similar privileges to the representatives of the FTA-CIO, (d) urging, persuading, and coercing the employees to pay dues to the A. F. of L, and requiring said em- ployees to obtain clearance cards from the A F of L, as a condition of employ- ment, and refusing to employ or continue in their employ persons who failed or refused to obtain such clearance; (2) on or about April 13, 1946, while a question concerning reps esentation between the A. F. of L, and the FTA-CIO at the respondents' plant was pending and unresolved before the Board, executed an exclusive collective bargaining agreement with the A F of L., contrary to 294 DECISIONS OF NATIONAL LABOR RELATIONS BOARD a directive in the Board's Supplemental Decision and Order, dated February 15, 1946, setting aside an election held among the employees of the respondents on or about October 17. 1945, pursuant to a Decision and Direction of an election;' (3) on or about April 17, 1946, and on oi about June 27, 1946, discharged certain named employees,' because of their membership in and activities on behalf of the FTA-CIO, and their refusal to become or remain members of the A F. of L, or to pay dues and assessments to the said A F. of L., thereby discriminating in regard to the hire and tenure of employment of the said employees, discouraging membership in the FTA-CIO. and encouraging inenibeiship in the A F of L ; and (4) by all of the foregoing conduct, have interfered with, restrained, and coerced their employees in the exei cise of the rights guaranteed in Section 7 of the Act, in violation of Section 8 (1) and (3). Pursuant to notice a healing as held at Manteca, California, on August 20 and 21, 1946, before Irving Rogosin, the undersigned Trial Examiner duly designated by the Chief Trial Examiner The Board, the respondents, and the A F. of L were represented by counsel; the FTA-CIO, by one of its representa- tives. All participated in the hearing ahd were afforded full opportunity to be heard, to examine and cross-examine witnesses and to introduce evidence bearing upon the issues. At the commencement of the hearing, counsel for the A. F. of L moved, orally and in writing. to dismiss the complaint upon various grounds discussed hereinafter The motion was denied. Counsel for the A. F. of L. was thereupon permitted to file it written :answer in its behalf. No answer having been filed in behalf of the respondents prior to the commencement of the hearing, counsel for the respondents answered orally upon the record the allega- tions in the complaint Certain of the jurisdictional and procedural allegations were admitted ; others, including the commission of any unfair labor practices, were denied After the close of the hearing, pursuant to leave granted, counsel for the respondents filed it formal written answer, embodying the defenses stated oially upon the record A motion of counsel for the respondents to dismiss the complaint, upon substantially the same grounds as those asserted by counsel for the A F of L, was similarly denied. At the conclusion of the hearing, all parties were afforded an apportunity to argue orally upon the record, and to file briefs with the undersigned. Counsel for the Board, the respondents, and the A. F of L, argued orally upon the record ; only the respondents and the A. F of L. have filed briefs 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 RESPONDENTS Fred Volandii, Dino Volanciri, and S llontanelli, co-partners doing business under the firm name and style of Califruit Canning Company, having their princi- pal office and plant at Manteca, California, are engaged in the business of proc- essing and canning iruits and vegetables The annual cross sales of the re- spondents' products exceed $100.000, of which in excess of 90 percent constitutes 1 See Matter of Be) cut-Richards Packing Company, et at , 64 N L R B. 133. See also Supplemental Decision and Order, 65 N L. R B 1052 1 Those alleged to have been discrimniatorily discharged on April 17, 1946, are Sophie Armendariz Pauline Verigin Nellie Calderon Telveina Lana Upon the unopposed motion of counsel for the Boaid, the complaint was dismissed, with- out pieludice, insofar as it alleged that Walter Fender and Palmyra Fender were discrimi- natorily discharged on or about June 27, 1946 CALIFRUIT CANNING COMPANY 295 salds-of productS'sold'anti transported in interstate and foreign commerce and from the respondents' plant to States and territories of the United States other than the State of California, and to foreign countries The respondents admit that they are engaged in commerce within the meaning of the Act' II THE oitG ANIZATIONS INVO.VF1) Food, Tobacco, Agricultural & Allied Workers Union of America, affiliated with the Congress of Industrial Organizations; International Brotherhood of Team- sters , Chauffeurs, Warehousemen and Helpers of America, California State Council of Cannery Unions, and Cannery Workers, Processors, Warehousemen and Helpers, Local Union No. 601, each affiliated with the American Federation of Labor, are labor organizations admitting to membership employees of the respondents III THE UNFAIR LABOR PRACTICES A. Intel fercnee. lestralnt. and coercion 1 Introduction, collective bargaining history between the respondents and the A F of L This case stems from the conflicting claims of the PTA-CIO and the A F of L to represent employees of vatious Independent Companies, as well as Member Companies of the Cpliforina Processors and Growers, Inc., generally referred to in the industry and throughout the proceedings in which they have been in- volved as the CP & G The controversy finally culminated in a series of petitions for investigation and cei titication of representatives which were consolidated, and have since been designated as the Bci t,ut-Richards cases' The respondents have been engaged in the cannery business since 1942 and, although not members of the CP & G, but operating as an Independent Company, have adopted and agreed to be bound by the terms of a collective bargaining agreement between the CP & G and the A F of L, as adopted on June 10, 1941, (amended .January 26, 1942 and July 10, 1943), commonly designated the "Green Book" of Master Agreement Thus, by a document, dated July 17, 1944, the re- spondents entered into a stipulation with the A. F. of L,' acknowledging the existence of a collective bargaining agreement between the parties identical with the terms of the "Green look" contract, as amended, further acknowledging the custom of executing agreements identical with those negotiated between the CP & G and the A. F. of L, and agreeing to be bound by the determination of the National War Labor Board for the Tenth Region, in proceedings entitled "In the Matter of California Processors and Growers, Inc, and the California State Council of Cannery Unions, A. F. of L, Case No 111-7030," and to execute a col- lective bargaining agreement embracing the provisions of any directive order issued by the Regional War Labor Board On January 9, 1946, the respondents entered into an agreement with the A. F. of L.,' reaffirming and adopting the terms and provisions of the "Green 8 These findings are based upon the respondents ' admissions of jurisdictional allegations In the complaint, and the stipulation of the parties at the hearing See footnote 1. The contracting unions are therein denominated, "California State Council of Cannery Unions, and Cannery Workers Union No 20676," the latter being the apparent piedecessor of Cannery Workers, Processors, Warehousemen and Helpers, Local Union No 601 6Altliougli the preamble of this agreement names the "California State Council of Can- nery Unions, A F. of L, and Cannery Workers Union, Local -, International Brother- hood of Teamsters, Chauffeurs, Warehousemen and Helpers, A F of L ," the actual signa- tory III behalf of the A F of L, is "Cannery Workers Union A. F. of L #601 Successor to A P of 1, Local Union #20676 " 296 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Book" contract, as amended, and providing, among other things, for union se- curity and preferential hiring This agreement expired in accordance with its terms on March 1, 1946. On April 13, 1946, the respondents entered into the agreement with the A. F. of L, which is directly in issue in these proceedings, and upon which the respond- cuts rely for justification of their subsequent action The representation proceedings: the elections and subsequent action thereon In the summer of 1945, a number of petitions for investigation and certification of representatives were filed, alleging that a question affecting commerce had arisen concerning the representation of employees of Member Companies of the CP & G and of Independent Companies, including the respondents herein The Board, by appropriate proceedings, consolidated these petitions tor hearing which were held between July and September,, 1945' On October 5, 1945, the Board issued a telegraphic order of Decision and Di- rection of Elections in the cases so consolidated and, thereafter on October 12, 1945, issued its formal Decision, Direction of Elections and Order, in which it found that the existing contracts constituted no bar to the proceedings ; that all production and maintenance employees, with the conventional exclusions, of the Member Companies of the CP & G, constituted one appropriate unit, and that those of the Independent Companies, including the respondents herein, con- stituted sepaiate appropriate units; and ordered that elections be held among each of these units of employees to determine the question of representation." Elections were thereupon conducted, pursuant to the Board's Decision and Di- rection of Election, between October 11 and October 18, 1945, inclusive,' with the results, at the respondents' plant, set out below.10 Thereafter, between Octobai 29, 1945 and January 5. 1946, the A F of L. duly filed objections to the conduct of the elections held among the employees of the CP & G and of the Independent Companies On January iii, 1946, the Regional Diiectoi issued his Report on Objections to the elections and, on Februaiy 15, 1946, the Board issued a Supplemental Decision and Order respect- ing the consolidated cases, vacating and setting aside the results of the elections. The Board, in its Supplemental Decision and Order, stated, in part. The current AFL contract will expire on March 1, and since the legal effect of the foregoing detei urination is to keep the question ot representation pending, before the Board, none of the unions is entitled to an exclusive status The petition invohiug the respondents herein is numbered Case No 20-R-1428 8 The labor organizations appeasing on the ballot in the proceedings involving these respondents were Cannery and Food Piocess Workers Union of Stockton Area, affiliated with Cannery and Food Piocess Workers Council of the Pacific coast Caliloinia State Council of Cannery Unions, American Federation of Labor. Food Tobacco, Agricultural & Allied Workers Union of America, C I 0 0 Except lot an election held at one of the companies not hcte involved 10 Approximate number of eligible voters--------------------------------- 136 Valid votes counted------------------------------------------------- 101 Votes cast for California State Council of Cannery Unions, A F of L------- 22 Votes cast for F T A -C I 0---------------------------------------- 77 Votes cast fox C.unierr and Food Process Workers Union of Stockton Aiea, Independent-------------------- --------------------------- 1 Votes cast against participating labor organizations---------------------- 1 Challenged ballots--------------------------------------------------- 0 Void ballots-------------------------------------------------------- 2 CALIFRUIT CANNING COMPANY 297 as the bin gaining agent after that (late. In accoidanee with well-estab- lished principles,' the employers may not, pending a new election, give preferential treatment to any of the labor organizations involved, although they may recognize each one as the representative of its members In this state of the iecord, no legal effect may be given the closed-shop provision contained in the current collective agreements after their expiiation date ; 2 the inclusion of such provision in any new agreements, or action putsuant thereto, would clearly be contrary to the proviso in Subsection 8 (3). Nothing in our decision, however, should be construed as requiring any change in the substantive conditions of employment now existing by virtue of the foregoing agreements " 1 See Mattes of Midwest Piping it Supplrl Co , Inc, 63 N L It B 163. 'See aio Matter of Lien -Red Tube eC Lanip Corp, 62 N L R B 21 211oreove , no requests foi iii echo rgcsi esriIt ing fro in actiiit e in the election aie rii.iified undei the pre.ent agreement See: hatter of Rutland Coatt Owneies, 44 N L R B 5S7, 46 N L R B 1040 3 The subsequent events Shortly before the expiration of the agreement between the respondents and the A. F of L on March 1, 1946, a group of employees, including those alleged herein to have been discriminatorily discharged, called upon the respondent Dino Volandri" at the plant and inquired if he had signed it contract with the A. F of L When lie replied that he had not, they informed him that they desired to work peacefully at the plant as they had in the past In response to the employees' request that the respondents comply with the Board "order," and refrain from executing a contract, Volandri assured them that lie would not sign a contract"' On March 20, 1946, the Regional Director notified the respondents that an unfair labor practice charge has been filed by the FTA-CIO, on March 14, 1946, alleging that the respondents had entered into a collective bargaining agreement with the A. F of L, granting that labor organization exclusive recognition, at a time when a question concerning representation was pending and unre- solved before the Board, of which pioceedurgs it had knowledge, and in which it had participated, in violation of the Act. The letter requested information regarding the circumstances, copies of any union contract which might have been entered into, and any pertinent coirespondence. The following day, the respondents replied by letter: This is in reply to your letter of March 20th, stating that the Califruit Canning Company violated certain sections of the National Labor Relations Act. We wish to state, that although we have had visits from the members of the C. I. 0. and also visits from the members of the A. F. L., and have been asked by the A F. of L. to sign a contract or a rider to the old contract, we have refused to do so. We told both members of the respective Unions that we would not sign anything that would violate the directive sent to our Comptvny from Washington, stating that neither the A F. of L. or C. I. O. is entitled to an exclusive status as the bargaining agent. 11 The respondents acknowledged that they i eceived a copy of this Supplemental Decision and Order within the usual course of the mails 12 All references to Volandri hereinafter are intended to apply to the respondent, Dino Volandri 13 These findings aie based upon the undisputed , mutually corroborative and credited testimony of Sophie Armendariz , Nellie Calderon and Telveina Lima. 298 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Despite the position asserted in this letter, and contrary to the assurance given the employees who called on Volandri shbrtly before the expiration date of the A. F. of L. contract on March 1, 1946, the respondents, on April 13, 1946, entered into an exclusive collective bargaining agreement with the A. F of L., requiring membership therein as a condition of employment at the respond- ents' plant" 4 The exclusion of the FTA-CIO representatives Late in February 1946, International RepiesentatiNe R L Warren, of the FTA-CIO, accompanied by another union representative, called upon Volandri, and requested that they "be allowed to represent [the FTA-CIO] members in the plant" Volandri told them that he had no intention of recognizing either the CIO or the A F. of L, and that he planned to afford both unions equal treatment. Y On the morning of April 15. 1946, Warren and a union member went to the iesponclents' premises and spoke to employees as they reported for work. While they were there, an unidentified man came out of the plant and inquired whether they were CIO representatives. When they replied that they were, he informed them the respondents had a contract with the A. F of L, and that the FTA-CIO representative's were not permitted on the respondents' property. Warren in- sisted on their right to be there, but the man told them that the respondent had instructed him to order them off the propeity Warren protested, stating that they did not intend to leave, and suggested that the respondents notify them personally if they desired them to leave. The man left Shortly afterward, Volandri came out of the plant and reiterated that the respondents were under contract with the A F. of L. under the terms of which only A F of L repre- sentatives were permitted on the respondents' property. that he intended to live up to the terms of his contract, and that lie would have to ask these repre- sentatives to leave Warren argued that they were entitled to be on the premises under the terms of tl'e Board's order, and that any contract which the respondents might have entered into was illegal as violative thereof A discussion ensued concerning the legality of such contracts Volandri eventually returned to the plant, and the union representatives left." 1i Although "California State Council of Cannery Unions A F of L , and Cannery Woikeis' Union, Local 601, International'Brotherhood of Teamsters, Chauffeurs, Ware- h"usemen and Helpers, A F of L" are denominated in the preamble to this contract as the "Union", the signatories in behalf of the Union are "California State Council of Cannery Unions, A F of L " and "Cannery Workers' Union Local 601" The provisions of the contiact, which makes no iefeience to any earlier contracts and which does not specify the term for which it shall be operative, follow. 1 It "hall 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 Pres- cut employees who are not as of the date of this agreement membeis of the Union must become members within ten (10) days from the date hereof Any new employee shall be required within ten (10) davs of the (late of hiring to become a member of the Union and thereafter i emain a member in good standing Persons who tail to maintain good standing in the Union in accordance with the by- laws thereof shall be dischaiged within thiity-six (36) hours aftei 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 aic available within fortyyeight (48) hours after being5notified As a basis for pref- erential consideration, unemployed members of the local Union shall be required to present a clearance card fiom the local Union, evidencing the fact of their paid-up membership Any adjustment in wages, houis or conditions, which may hereafter be agreed upon by the pax ties, shall be effective as of Minch 1, 1946, and retroactive to that date 15 The above findings are based upon undisputed testimony of Warren CALIFRUIT CANNING COMPANY 299 B -Drcrinnnation in regard to hire and tenure of employment 16 In April 1946, the respondents began preparations for the resumption of sea- sonal operations . On April 12, they notified Sophie Armendariz, Nellie Calderon, Pauline Verigin and Telveina Lima, seasonal employees, by identical post cards, that the respondents would begin canning asparagus on April 15, 1946 at 9 o'clock a. m On Monday morning, April 15, these employees, among others, reported for work at the respondents ' plant. Shortly after their arrival, Nancy Montanelli, the wife of the respondent, Silva Montanelli, announced to the employees that they would be required to "clear" with the A F. of L. before starting work After some indecision, a number of employees presented themselves to the A. F. of L representatives, seated at the table, -provided for that purpose at the plant, and obtained clearance Others, including the employees named above, declined to apply for cleat ance upon the ground bat this requirement violated the Board's order. Soon , however, the procedure of clearing came to a halt. Silva Monta- nelli thereupon announced irately that the employees could not work in the cannery unless they cleared with the A. F. of L He instructed his wife, in the presence of the employees, to order those who did not wish to clear with the A. F. of L. out of the plant onto the platform The employees, numbering between 85 and 100, thereupon left and congregated outside, discussing the matter. Soon afterward, Montanelli came out and, addressing the employees, reiterated that they would be obliged to clear through the A. F of L if they wished to work at the cannery At this point, either Montanelli or Volandri, who appeared on the scene, informed the employees that the respondents had a contract with the A. F of L The employees protested that this was in violation of the Board order, and- askell to- see-the contract. Volandri offered to produce'i.t, and, over Montanelli's objection, procured the contract and exhibited it to the employees. At their request, Telveina Lima read the contract aloud, and then returned it to Volandri A number of the employees then proceeded to clear with the A. F. of L. repre- sentatives Another group consisting of about 23 employees, including those al- leged to have been discriminatorily discharged, left the platform to look for FTA- C1O representatives. Several of this group left in a car to telephone them, re- turning shortly after- and to report that the representatives-would arrive shortly. The group of 23 employees remained on the premises outside the cannery until about noon While there, they were advised by the A F. of L representatives that if they did riot wish to clear they had better leave because they were "just making trouble." Nellie Calderon protested their right to order them off the property and suggested -that she would prefer to have the owners do so Observing Vo- landri nearby, Calderon inquired, "What about it, Dino? Don't we have a job here ?" When Volandri shrugged but made no comment she inquired, "Well, do you want us to get out of here?" Volandri replied, "Well, Girls, I'm awfully sorry, but I can't do [anything] for you " The FTA-CIO representatives arrived in the meantime, and upon their advice, the group of employees conferred with Volandri at his othce and again asked him if he intended to give them their jobs He informed them that lie could do noth- ing for them at the time, but that he would see what he could do. The employees thereupon left. The next day the-.same group of employees, including those named in the com- -ptaint , excepting Lima ,,who had been delayed, arrived at the plant at.about 7 16 The findings in this section are based upon the combined, undisputed, credible, and mutually corroborative testimony of Armendauz, Calderon, Verigin, and Lima 300 DECISIONS OF NATIONAL LABOR RELATIONS BOARD o'clock in the morning. Employees were already entering the plant to go to woi k As the former group attempted to enter the cannery, a group of A. F. of L. representatives standing on the platform barred their way, and, reviling them as aliens and Communists , announced that they were not going to clear them. The group, including those already named , then went to Volandri's office and informed him that they had attempted to clear with the A. F. of L. so that they might be able to work at the plant, but that the representatives of that union had refused them clearance . Volandri replied that there was nothing that he could do. When the employees remonstrated with him , appealing to him to inter- cede in their behalf , he replied that he was anxious to have them work at the cannery but that his hands were "tied " Meanwhile , Lima, who had arrived some- what later than the others , observed some of the employees approaching the plat- form apparently intending to clear. As she and another employee joined them, the A . F of L representatives , addiessing Lima and her companion , asked what these "Communists want[ed] there " They replied that they had come "to clear." According to Lima's undisputed and credited testimony , one of the A F. of L. rep- representatives, whom she recognized as Beggs ;' told her that she would not be cleared because she had persuaded the girls to change their minds, presumably in shifting their allegiance from the A. F. of L. to the FTA-CIO. Lima retorted that "those girls had a mind of their own and [that she ] didn't have to tell them what to do." Beggs insisted that she had influenced them in favor of the CIO. When the representatives refused them clearance , Lima left for Volandri's office, where she arrived in time to join the group of 18 or 20 girls , including Verigin, Calderon, and Armendariz Lima testified credibly, and without contradiction , that in a conversation with Volandri at the time, he asked her why they did not go to work, remarking that lie did not "see what difference it made " to which union they belonged , and even offered to pay their dues [ in the A. F of L.] out of company funds Lima declined, insisting that she was capable of paying her own dues . Volandri stated that he wanted to see them go to work , but that that was all he would do for their. The employees replied that they desired to go to work , but had not been required to clear the previous fall, and were unwilling to do so at this time. Volandri informed them that there was nothing he could do . Finally, however, lie agreed to discuss the matter with the A. F of L representatives , and advised the employees to return the next morning. Calderon , Armendariz , and Verigin arrived at the plant between 7 and 7: 30 o'clock the following morning.' Proceeding to the platform outside the plant, they engaged in a conversation with some of the girls who, they learned, had been cleared and had returned to work. The three employees assumed that they would be cleared that morning and would be permitted to go to work, on the basis of what Volandri had told them the day before . As they were standing in a group near the table at which employees were cleared, A. F. of L. Repre- sentative Beggs appeared and, looking about him, announced that some of the girls could be cleared . Calderon thereupon stepped forward and said that she was "ready to clear." With that, Beggs declared that he would not clear her because she was "one of the ringleaders of the C. I. 0 " Then, indicating Armendariz and Verigin , he informed them that they would not be cleared for the same reason. Other A F. of L representatives had appeared in the mean- time, and the three demanded to know why they were not being cleared They 11 Lima testified that she was unable to identify the others because they all wore click glasses and were similai ly dressed There is no dispute, however, that they wei e A F of L representatives At least one other A F of L repiesentative, Brown, was identified by name by some of these employees 1s Lima (lid not aiiiye until somewhat later CALIFRUIT CANNING COMPANY 301 were informed that they were not wanted in the [A. F. of L ] union Beggs continued, that they would be unable to obtain employment at this or any other cannery in California because they ww ould not be cleared through the A. F of L. Calderon then went to Forelacly Palmira Fender, and told her what had uninspired. Fender replied that there was nothing she could do. As the three employees left the cannery, they were met by Lima who was just entering. They related what had occurred. Lima continued into the plant and attempted to clear with one of the A. F. of L representatives, but was informed that she would not be cleared, and that they wanted no one like her in their union because she had caused the girls to change their minds. Lima denied this, stating that those employees had pretended to be in favor of the A. F. of L, although they were in fact in favor of the C. I. 0 He refused to discuss the matter further, and ordered her out of the plant. She reiterated that she wanted to clear, but he remained adamant. Thereupon, she informed him that she intended to let the "government take its course," to which lie made a scurrilous reply. The four employees involved then called upon Volandri and complained that they were tired of being shuttled back and forth between the A F. of L and the respondents, and i equested Volandri to effect their clearance. According to Armendariz' credible and uncontradicted testimony, Volandri replied that the A F of L had refused to clear them because they were "CIO leaders," and that there was nothing that lie could do10 The employees then left for the FTA-CIO office at Stockton, from which they telephoned Volandri, and again asked him Whether lie was going to give them their lobs He replied that there was nothing that he could do They thereupon informed him that they intended to file charges with the Board Later that day, they returned to the plant and distributed union leaflets. They were ordered off the premises by a person, allegedly a foreman, and by A F of L Representatives Brown and Beggs They thereupon left On or about April 22, 1946, the local union of the A F of L 20 dispatched identical letters to each of the four employees here involved, notifying them that charges had been preferred against them of violation of certain provisions of the "Inter- national Constitution By-Laws," 21 and informing them that a trial would be held on Wednesday, April 24, 1946, at 8 p in at the local union offices Contending that they were not required to maintain membership in the A F. of L, in view of the proceedings before the Board , culminating in the Supplemental Decision and Oider setting aside the results of the elections, none of these employees appeared to answer to the charges preferred against them C Issues ; contentions ; conclusions The facts which have been related are not in serious dispute. It is, in fact, conceded that the testimony of the Board witnesses substantially reflects the events as they occurred. 19 Verigin also testified credibly, and without contradiction, that during the discussion with Volandri on either Tuesday or Wednesday, Lima stated to Volandri that the A P of L representatives had refused to clear them because they believed that they were "CIO i ingleaders " Thus, it is clear that Volandri was put upon actual notice that the A F of L was denying these employees membership in the union , and consequently preventing them from obtaining employment at the respondents ' plant, because of their belief that they had been active in behalf of a rival union 20 Reference here is to Cannery Workers, Processors, Warehousemen & Helpers Local U11ion No. 601. 21 Although the letter referred to the section and articles of the constitution and by-laws, alleged to have been violated , it furnished no further information as to the contents of those pi ovlsions The constitution and by-laws were not offered in evidence , not was any other evidence offered of the grounds for the charges beyond this 302 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The respondents contend, in effect, that, although they had assumed, despite the decisions of the Board, that they had been bound, since the commencement of operations in 1942, by the "Green Book" or Master Contract, as amended from time to time, and as adopted by their several successive contracts with the A. F. of L, they had agreed in 1946 to execute another contract, if and when the CP&G, and the remaining Independent Companies did so. Having "held out until the last moment," and having been informed by the A. F. of L. that all the other companies had signed, they finally executed the successive contracts of January S and April 13, 1946, upon the A F. of L.'s assurance that the contracts afforded them protection.22 Insofar as the closed-shop provision of the April 13 contract was concerned, Volandri testified that he made at least two attempts to effect clearance of the employees here involved, but was informed that they were not "in good standing" and, although lie attempted to persuade the A. F. of L to clear them, he was unsuccessful and so advised these employees. Although the respondents attempt to rely, in justi4cat4,on of the conduct complained of, upon the "Green Book" Contract, as amended, and the indi- vidual intervening contracts, as well as the latest outstanding contract of April 13, it is clear that they rely primarily upon the contract of April 13. Moreover, the January 8 contract expired in accordance with its teams on March 1, 1946. Even if it be inferred from the record that the respondents, in executing the closed-shop contract of April 13 and subsequently denying the employees oppor- tunity to work at their plant, acceded to economic pressure by the A. F. of L., this would afford no justification for the respondents' subsequent action 28 The remaining defenses and contentions advanced by the respondents and the A. F. of L. relate primarily to the rights of the parties under the "Green Book" contract, and present no novel propositions They are substantially the same as those raised in other "cannery cases," arising out of the repre- sentation proceedings, and have been considered by the Board in two recent cases 24 Briefly, it is argued that, inasmuch as the A. F. of L. had been the bargaining agent for the CP & G, and Independent Companies adopting their contracts, for a number of years, the A. F. of L continued as such repre- sentative until the certification of a new collective bargaining representative Consequently, these parties contend, the respondents were not only entitled, but required, to bargain with the A. F. of L under the principle of presuinp- tion of continuance of majority status. This contention has already twice been decided adversely to the respondents by the Board26 As the Board said in Flottll Pt oducts, Inc., quoting from the Phelps Dodge decision, We are of the opinion that if, during the pendency of an election di- rected by the Board to resolve a question concerning representation, an employer extends or renews an existing contract with a labor organiza- tion, or makes a new one, he violates the Act insofar as that organization is accorded recognition as exclusive bargaining representative or em- ployees are required to become or remain members thereof as a condition of employment 26 22 It will be recalled that, although the respondents had ececuted the January 8 contract at the time they were notified by the Regional Director of the filing of a charge against them, no mention was made of this in their reply. "See Matter of Fur eta Vacuum Cleaner Company, 69 N I, R B 878, and cases cited. 24 Matter of Flotill Products, Inc, 70 N. L. R. B. 119 ; Matter of Lincoln Packing Com- pany, 70 N. L R. B. 135. 25 See Matter of Flotill Products, Inc ; Matter of Lincoln Packing Company, supra. 10 Matter of Phelps Dodge Copper Products Corp , 63,N1 L R B 686, 687 CALIFRUIT CANNING COMPANY 303 It-is clear therefore that where, as here, the Board has held that a question concerning representation exists , no presumption of continuance of majority in favor of a contracting union may be invoked. The further contention deals with the so-called "order" in the Board's Supplemental Decision and Order that "none of the unions is entitled to an exclusive status as the bargaining agent after [the date of the expiration of the existing contract ]," and that "the employers may not, pending a new elec- tion, give preferential treatment to any of the labor organizations involved, although they may recognize each one as the representative of its members." It is argued that the Board was not empowered to enter such an ex parte "order" and, by doing so, had "prejudged " the case, thereby disqualifying itself from rendering a decision . As has been pointed out by the Board in the decisions reterred to, the quoted language merely enunciated "well-estab- lished principles" of law and apprised the parties of the obligations which the law imposed The subsidiary argument, that even if such an "order" were valid and enforceable, the only appropriate forum in which it could be enforced would be the Circuit Court of Appeals , requires no comment in view of what has been said 2 It is not only clear from the foregoing, but it is undisputed , that the respond- ents entered into a contract with the A F of L on April 13, 1946, requiring membership in that labor organization as a condition of employment, with actual knowledge of the pendency before the board of proceedings to determine an existing question of representation. Moreoiei, not only did the respondents have actual knowledge of the existences of the question concerning representation, but they actually entered into the said agreement in express disregard of their assurance to the Regional Director that they would not deal with either rival organization The record further establishes that the respondents indicated their approval of the A F of L., accorded it unwarranted prestige, specifically urged employees to joni or remain members of the said A F of L , actually offering to pay their membership dues, per nutted representatives of the A F of L upon their premises , and assisted them in and facilitated the collection of dues, while denying representatives of the FTA-CIO access to their premises for the purpose of dealing with members of their union . The respondents thereby encouraged membership in the A F of L, discouraged membership in the FTA-CIO, and rendered unlawful assistance to the A. F of L, thereby inter- fering with , restraining, and coercing their employees in the exercise of the rights guaranteed in Section 7 of the Act, all in violation of Section 8 (1) of the Act The record further discloses , and the undersigned finds , that as part of, and in furtherance of, the foregoing conduct , the respondents required Sophie Ar- mendaiiz, Nellie Calderon, Pauline Veiigin and Telveina Lima , to become or remain members of the A. F of L in violation of the illegal closed -shop provision of the contract and, when they failed to obtain , and were denied, membership 2' Counsel for the respondents and the A F of L have also urged that the denial by the Circuit Court of Appeals for the Ninth Circuit of a petition by the Board to adjudicate the respondents in contempt of a previous consent decree in N L R. B. v. Beicut-Richards Packing Co , et al, No 9499, is deter inmative in favor of the respondents of the validity of the closed-shop contract The petition sought to enforce a consent decree entered by the Circuit Court of Appeals in 1940 pursuant to Board ordeis based upon stipulations between the parties involved in the Matter of Bercut-Richards Packing Co , et al , 22 N L R. B, 250 The denial by the Court, without opinion, of the Board's petition for contempt, especially in view of the provisions in the stipulation, and the Court's subsequent refusal, upon application by the Board, to clarify its action cannot be held to be determina- tive of any of the issues in the present proceeding 789920-47-vol 7 3 21 304 DECISIONS OF NATIONAL LABOR RELATIONS BOARD in the A . F. of L., refused to employ them , thereby discriminating in regard to their hire and tenure of employment , encouraging inembeiship in the A F of L, discouraging membership in the FTA-CIO, in violation of Section 8 (3) of the Act,20 and interfering with, restraining , and coercing their employees within the meaning of Section 8 (1) of the Act IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the respondents set forth in Section III, above, occurring in connection with the operation of the respondents 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 respondents have engaged in unfair labor practices, the undersigned will recommend that they cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act It has been found that the respondents discriminated in regard to the hire and tenure of employment of Sophie Arniendariz, Nellie Calderon, Pauline \'erigin, and Telveina Lima, by refusing to reemploy them because they had failed and refused to become or remain members in good standing in the A. F. of L, and had been denied membership therein. It will therefore be recommended that the respondents offer each of them immediate and full rein- statement to their former or substantially equivalent positions i° without prejudice to their seniority and other rights and privileges, and make them whole for any , loss of pay they may have suffered by i eason of such discrimination by payment to each of them of a sum of money equal to the amount they normally would have earned as wages during the period from April 17, 1946, the date upon which, as alleged in the complaint, they were finally refused employment by reason of their failure to "clear" with the A. F of L, less their net earnings 30 during said period. Inasmuch as the respondents' business is of a seasonal nature, and the cannery may not be in operation at the time said offers of reinstatement are made, it is recommended that in such event the offers of reinstatement to the said employees shall become effective with the commencement of the respondents' next seasonal operations In view of the seasonal nature of the employment of 28 It will be noted that the Board in its Supplemental Decision and Order specifically stated Moreover, no requests for dischai ges resulting from activity in the election are justi- fied even under the present agreement See Matter of Rutland Court Owners, 44 N L It B 587, 46 N L R B 1040 Even if the closed-shop contiact here were valid, it is clear that it could not be relied upon by the respondents, in the circumstances disclosed as a ground for denying these persons employment. 'See Wallace Corporation v N L R B, 323 U. S 248, ieheaung denied 323 U S S19 20 in accordance with the Board's consistent interpretation of the term, the expression "foinier or substantially equivalent position" is intended to mean "former position wher- ever possible, but if such position is no longei in existence, then to a substantially equiva- lent position " See Matter of The Chase National Bank of the City of New Yoik, Sall, Juan, Puerto Rico Bianeh, 65 N L B B 827 30 By "net earnings" is meant earnings less expenses, such as for transportation, room, and board, incuired by an employee in connection with obtaining work and working else- where than for the respondent, which would not have been incurred but for his unlawful discharge and the consequent necessity of his seeking employment elsewhere See Matter of Crossett Lumber Company, 8 N L R B 440 Monies received for work performed upon Federal, State, county, municipal, or other woik-relief projects shall be considered as earnings See Republic Steel Corporation v N L R. B , 311 U S 7. CALIFRUIT CANNING COMPANY 305 these persons, it will further be recommended that no back pay be paid to them for any period during which they would not normally have worked in the respond- ents' cannery, and that no deduction of earnings be made of any monies earned elsewhere by them during such period It has further been found that the respondents have unlawfully assisted the A F of L, and interfered with the I'TA-CIO by recognizing and entering into a closed-shop contract with the A. F of L as the exclusive' collective bargaining representative of their employees It is apparent therefore that no free selection of a bargaining representative can be made where recognition in a contract, requn ing membership in a union as a condition of employment, has been accorded to one of two competing unions while a question concerning rep- iesentation remained pending and undetermined before the Board. It will therefore be recommended that the respondents cease and desist from recog- nizing the A. 1+' of L. as such exclusive representative unless and until it shall have been certified as such repiesentative by the Board Inasmuch as the contract of April 13, 1946, perpetuates the respondents' unlawful assistance to the A. F of L. and piecludes the employees from exercising their right to select a bargaining representative of their own choice, it will further be recommended that the respondents cease giving effect to the contract of April 13, 1946, or to any extension, renewal, modification, or supplement thereof, unless and until the said A F of L shall have been certified by the Board as the exclusive collective bargaining representative of the respondents' employees Nothing herein, however, shall be construed to require the respondents to vary any wage, hour, seniority, or other substantive features o1 its relations with the employees themselves, which the respondents have established in the performance of this contract, or to prejudice the assertion by the employees of any right they may have under such an agreement." Upon the basis of the above findings of fact and upon the entire record in the case, the under signed makes the following CONCLUSION S OF Liw I Food. Tobacco, Agricultural & Allied Workers Union of America, affiliated with the Congress o1 Industrial Organizations, and International Brotherhood of Teamsters, Chauffeurs, Warehousemen, and Helpers of America, affiliated with the American Federation of Labor, California State Council of Cannery Unions, and Cannery Worker s, Processors. Warehousemen and Helpers, Local Union No. 601, each affiliated with the American Federation of Labor, are labor organizations within the meaning of Section 2 (5) of the Act. 2 By discriminating in regard to the hire and tenure of employment of Sophie Arniendariz, Nellie Calderon, Pauline Verigin, and Telvelna Lima, thereby en- couraging membership in International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, California State Council of Cannel y Unions, and Cannery Workers, Processors, Warehousemen and Helpers, Local 11 Although there is some intimation in the record that membership dues of employees of the respondents were checked off in favor of the A F of L at tones under the several con- tracts, the evidence is iiisnfhicient to istabrrsh that such an arrangement was actually in effect during the pmiod involved Inasmuch as none of the employees alleged herein to have been discru mated against were afforded niembeishin in the A F of L during this period. and were not eniploved after Apt it 15, 1946, when seasonal open ations were resumed, obviously no question of refund of dues is miolved with respect to them. Moreover, inas- much as it is not specifically alleged in the complaint that nienibership does of eniplo^ees were checked off involuntarihv for the period involved, and the record affords no justifica- tion for hiding that this occurred it will not be recommended that anv dues be paid to the .1 h' of 1, by the respondents' emplovee5 be refunded 306 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Union No. 601, all affiliated with the American Federation of Labor, and dis- couraging membership in Food, Tobacco, Agricultural & Allied Workers Union of America, affiliated with the Congress of Industrial Organizations, the respond- ents have engaged in and are engaging in unfair labor practices within the meaning of Section 8 (3) of the Act. 3. By interfering with, restraining, and coercing their employees in the exercise of the rights guaranteed in Section 7 of the Act, the respondents have engaged and are engaging in unfair labor practices within the meaning of Section 8 (1) 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 RECOMMENDATIONS Upon the basis of the above findings of fact and conclusions of law, the under- signed recommends that the respondents, Fred Volandri, Dino Volandri, and S Montanelh, doing business as Califruit Canning Company, of Manteca, Cali- fornia, their agents, successors, and assigns shall : 1. Cease and desist from: (a) Recognizing California State Council of Cannery Unions, Cannery Workers, Processors, Warehousemen and Helpers, Local Union No. 601, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, all affiliated with the American Federation of Labor, as the exclusive representa- tive of their employees for the purposes of collective bargaining, unless and until said organizations or any of them shall be certified by the National Labor Rela- tions Board as the exclusive representative of such employees ; (b) Giving effect to their contract dated April 13, 1946, with California State Council of Cannery Unions, Cannery Workers, Processors, Warehousemen and Helpers, Local Union No 601, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers, each affiliated with the American Federation of Labor, or to any extension, renewal, modification, or supplement thereto, or to any superseding contract with those labor organizations, or any other labor organization or affiliate thereof, provided however, that in so doing the respondents shall not be required or permitted to vary those provisions of such contract, understandings, supplements, extensions, or other agreements which established wages, hours of employment, rates of pay, seniority or other substantial rights of its employees, unless and until said organizations or any of them shall be certified by the National Labor Relations Board as the representa- tive of the respondents' employees ; (c) Discouraging membership in Food, Tobacco, Agricultural & Allied Workers Union of America, affiliated with the Congress of Industrial Organizations, or any other labor organization of their employees, by discharging or refusing to reinstate any of their employees, or in any other manner discriminating in regard to their hire and tenure of employment or any term or condition of employment; (d) Encouraging membership in California State Council of Cannery Unions, Cannery Workers, Processors, Warehousemen and Helpers, Local Union No. 601, and International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, affiliated with the American Federation of Labor, by acceding to any demands or requests, or yielding to any other pressure, for the discharge or refusal to reinstate or employ any employee or through any other form of discrimination in regard to hire or tenure of employment or any term or condition of employment ; (e) In any like or related manner interfering with, restraining, or coercing their employees in the exercise of the rights to self-organization , to form, join or CALIFRUIT CANNING COMPANY 307 assist. Food, Tobacco, Agricultural & Allied Workers Union of America, affiliated with the Congress of Industrial Organizations, or any other labor organization, to bargain collectively through representatives of their own 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) Offer Sophie Arunendaiiz, Nellie Calderon, Pauline Verigin, Telveina Lima, immediate and full reinstatement to their former or substantially equivalent positions without prejudice to their seniority and other rights and privileges in the manner set forth in "The remedy" ; (b) Make whole in the manner set forth in "The remedy" the persons whose names appear in the immediately next preceding paragraph for any loss they may have suffered by reason of the respondents' discrimination against them ; (c) Withdraw and withhold all recognition from California State Council of Cannery Unions, Cannery Workers, Processors, Warehousemen and Helpers, Local Union No. 601, International Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America, all affiliated with the American Federation of Labor, as the exclusive representatives of their employees 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 any of them shall have been certified by the National Labor Relations Board as the exclusive representative of such employees ; (d) Post at their plant at Manteca, California, copies of the notice attached hereto and marked "Appendix A " Copies of the notice, to be furnished by the Regional Director for the Twentieth Region, shall, after being duly signed by the respondents' representative, be posted by the respondents immediately upon receipt thereof and maintained by them 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 respondents to insure that said notices are not altered, defaced, or covered by any other material; (e) 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 stels the respondents have taken to comply therewith. It is further recommended that unless on or before ten (10) days from the receipt of this Intermediate Report, the respondents notify said Regional Director in writing that they will comply with the foregoing recommendations, the National Labor Relations Board issue an order requiring the respondents to take the action aforesaid As provided in Section 203 39 of the Rules and Regulations of the National Labor Relations Boaid, Series 4, effective September 11, 1946, any party or counsel for the board muay, within fifteen (15) days from the date of service of the order transferring the case to the Board, pursuant to Section 203.3S of said Rules and Regulations, file with the Board, Itochamibeau 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 (includ- ing rulings upon all motions or objections) as lie relies upon, together with the original and four copies of a brief in support thereof; and any party or counsel for the Board may, within the same period, file an original and four copies of a brief in support of the Intermediate Report. Immediately upon the filing of such statement of exceptions and/or briefs, the party or counsel for the Board filing the same shall serve a copy thereof upon each of the other parties and shall file a copy with the Regional Director Proof of service on the other parties of all papers filed with the Board shall be promptly made as required by Section 308 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 203 65. As further provided in said Section 203 39, should any party desire permission to argue Orally before the Board, request therefor must be made in writing to the Board within ten (10) days from the date of service of the order transferring the case to the Board. IRVINE RooOSIN, Trial Examiner. Dated October 18, 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 emiployees that: We will not recognize International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, California State Council of Cannery Unions, and Cannery Workers, Processors, Warehousemen and Helpers, Local Union No. 601, all affiliated with the American Federation of Labor, or any of them, as the exclusive representative of any of oui employees in our Manteca plant, for the purposes of collective bargaining, unless and until said organizations, or any of them, shall have been certified by the Board as the representative of such employees. We will not give effect to our contract dated Api it 13, 1946, with Inter- national Brotherhood of Teamsters, Chauffeurs, Wai ehousemem and Helpers of America, California State Council of Cannery Unions, and Cannery Work- ers, Processors, Warehousemen and Helpers, Local Union No. 601, all affiliated with the American Federation of Labor, or any of them, or to any extension, renewal, modification or supplement thereof, or to any super- seding contract with said labor organization, or any of their, unless and until said labor organizations, or any of them, shall have been certified by the Board as the representative of oui employees We will not encourage membership in International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, California State Council of Cannery Unions, and Cannery Workers, Processors, Ware- housemen and Helpers, Local Union No 601, all affiliated with the American Federation of Labor, or any other labor orgaization, by yielding to pressure from those labor organizations, of any of their, or any other labor organiza- tion, or by any other means, or discourage membership in Food, Tobacco, Agricultural & Allied Workers Union of America, affiliated with the Congress of Industrial Organizations, or any other labor organization, by discharging or refusing to reinstate any employee or in any other manner discriminat- ing in regard to hire and tenure of employment or any terns or condition of employment. We will not in any like or related manner interfere with, restrain, or coerce our employees in the exercise of their right to self-organization, to form labor organizations, to join or assist Food, Tobacco, Agricultural & Allied Workers Union of America, affiliated with the Congress of Industrial Organizations, or any other labor organization, to baigain 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. We will offer to the employees named below immediate and full reinstate- ment to their former or substantially equivalent positions without prejudice CALIFRUIT CANNING COMPANY 309 to any senoiity or other rights and privileges previously enjoyed, and make them whple for any loss of pay suffered as a result of the disci lmination. Sophie Arniendariz Pauline Verigin Nellie Calderon Telveina Lima All our employees are free to become or remain members of Food, Tobacco, Agricultural & Allied Workers Union of America, affiliated with the Congress of Industiial Oiganizations, of any other labor organization We will not discriminate in regard to hire or tenure of employment or any term or condition of employment against :illy employee because of membership in or activity on behalf of any such labor organization. FRED j OLANDRI, DINO VOLANDRI, AND S MONTANELLI, DOING BUSINESS AS CALiFRUIT CANNING COMPANY, Dated --------- By -------------------------- ------------------- (Representative) (Title) NOTE.-Any of the above-named employees presently serving in the Arined Forces of the United States will be offered full reinstatement upon'application in accordance with the Selective Service Act after discharge from the Armed Forces This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material