H. J. Heinz Co.

In the Matter of H. J. HEINZ COMPANY AND CALIFORNIA PROCESSORS AND GROWERS , INC. and FOOD, ToiL CCo, AGRICULTURAL AND ALLIED WORKERS UNION OF AMERICA, C. I. O. and CALIFORNIA STATE COUN- CIL OF CANNERY UNIONS AND CANNERY WORKERS UNION, LOCAL^NO. 601, A. F. or L., AFFILIATED WITII INTERNATIONAL BROTIIERHOOD OF TEAMSTERS , CHAUFFEURS, WARE I-IOUSEMEN AND HELPERS OF AMERICA, A. F. or L., PARTIES TO TIIE CONTRACT Case No. 00-C 1395.-Decided Ja'ruarry 39, 1947 Mr. Robert E. Tilimav,, for the Board. Messrs. J. Paul St. S'e and James R. Agee, of Oakland, Calif., for the respondents. Messrs. Gladstein, Anderien, Resner, Sawyer, and Edises, by Mr. Bertram, Edises, of Oakland, Calif., and Mr. Mortimer Wolf, of New York City, for the C. I. 0. Messrs. Tobriner and Lazarus, by Messrs. Matthew 0. Tobriner and Jonathan H. Rowell, of San Francisco, Calif., for the A. F. of L. Mr. George J. Hadjinoff, of counsel to the Board. DECISION AND ORDER On July 11, 1946, Trial Examiner Maurice Miller issued his Inter- mediate Report in the above-entitled proceeding, finding that the re- spondents had engaged in and were engaging in certain unfair labor practices and recommending that they cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Inter- mediate Report attached hereto. Thereafter the respondents and the A. F. L. filed exceptions to the Intermediate Report and supporting briefs. On October 1, 1946, the Board heard oral argument at Wash- ington, D. C., in which the respondents, the A. F. L., and the C. I. 0. participated. The Board has reviewed the rulings of the Trial Examiner and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Boarcl has considered the Intermediate Report, the exceptions and briefs, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner, with the modifications hereinafter set forth. 72 N L R. B., No 62. - 316 H. J. HEINZ COMPANY 317 1. We agree with the Trial Examiner's conclusion that, under the circumstances revealed by the record, the respondents, on December 21, 1945, engaged in unfair labor practices, within the meaning of Section 8 (1) of the Act, by recognizing the A. F. L. as the exclusive bargaining agent of the cannery employees at the Tracy plant and by extending the provisions of the master agreement with the A. F. L. to cover such employees. The respondents and the A. F. L. contend that the instant proceed- ing should not be entertained by the Board until it has determined whether the employees at the Tracy plant constitute a separate ap- propriate unit or whether they are part of the association-wide unit.'1 We do not agree that such a determination is a prerequisite to dis- position of the issues herein. In our opinion, the respondents' con- duct was unlawful whether the Tracy plant is regarded as a separate appropriate unit or as part of the association-wide unit. If the Tracy plant is viewed as a separate appropriate unit, the respondents' con- duct in treating with the A. F. L. as they did on December 21, 1945, was unlawful because they extended exclusive recognition to the A. F. L. as representative of the Tracy employees when the existing personnel at the Tracy plant did not constitute a group representa- tive of the working force which the H. J. Heinz Company then con- templated hiring as a normal complement at the Tracy plant, as more fully set forth in the Interiliediate Report.2 The respondents seek to justify their conduct on the ground that it was their practice to expand the existing association-wide unit to any new plant of an association member by extending the provisions of the master agreement with the A. F. L. to a new plant on a showing that the A. F. L. represented a majority of the employees at the new plant, and that the Tracy plant was incorporated into the association- wide unit in accordance with this practice. They contend that they should not be penalized for their conduct inasmuch as the Board knew of the practice and failed to clarify the relationship of the Tracy plant to the association-wide unit, although requested to do so by the respondents before the incorporation of the Tracy plant into the association-wide unit. The contention fails to take into account the ' In our Second Supplemental Decision in Matter of Bercat-Richards Packing Company/, it al, 68 N L R B 605, issued after the hearing in the instant case, wwe found that, depending upon the desires of the employees of the Tracy plant, as, reflected in a separate election , with respect to iepresentation for the purposes of collective bargaining, they ,,ould bargain either as a separate unit or as a part of the association -wide unit 2Matter of Harnischfeger Corporation, 66 N L R B 252, Matter of Kaiser Company, dnc, 51 N L R B 1265 , Matter of General American Aerocoach Company/, 55 N L R B 1377 , Matter of Aluminum Company of America, 49 N L R B 1431 ; Matter of Aiunnnum (butpany of America , 51 N L R B 1295 The Trial Examiner found that the respondents' recognition of the A F L was viola- the of the Act mtei alia, because it was extended (luring the pendency of the represen- Aeon proceed ing ielati ng solely to the Tracy employees namely, Case No 20-it-1593 We wed not and do not pass on this question, 318 DECISIONS OF NATIONAL LABOR RELATIONS BOARD fact that, if the Tracy plant is viewed as part of the association-wide unit, as the respondents contend it should be, the respondents' conduct was violative of the Act because such recognition was accorded and the master agreement was extended while a petition to determine the collective bargaining representative of the employees of members of the respondent Association, including the H. J. Heinz Company, was pending before the Board in M11atter of Bercut-Richards Packing Com- pany, et al., Case No. 20-R-1414.3 On/ December 21, 1945, when the respondents recognized the A. F. L. as the bargaining agent of the Tracy employees and extended the coverage of the master agreement with the A. F. L. to these employees, the status of the representation proceeding involving the association-wide unit was as follows. On October 5, 1945, we had issued our Decision and Direction of Elections in which we found that the existing association-wide unit was appro- priate for the purpose of collective bargaining and directed that an election be conducted among the employees in that unit. In the elec- tion, conducted from October 11 to October 18, 1945, the C. I. O. had Teceived a plurality of the votes cast; however, on October 29, 1945, and thereafter, the A. F. L. had filed objections to the conduct of the balloting. Thus, on December 21, 1945, the representation proceed- ing was pending before the Board on the A. F. L.'s objections to the election.4 Without awaiting Board determination of the question concerning representation of employees in the association-wide unit, or Board clarification of the relationship of that unit to the employees at the Tracy plant, the respondents disposed of these questions by recog- nizing and dealing with the A. F. L. in the manner that they did: They could not properly thus arrogate to themselves functions reserved to the exclusive jurisdiction of the Board.5 3That proceeding is still pending before the Board on objections to an election con- ducted by the Board in August 1946 See, for various stages of the proceeding, 64 N L R B 133 (Decision and Direction of Elections) • 65 N L R B 1052 (Supplemental De- cision) 68 N L R B 605 (Second Supplemental Decision) , 70 N L R B 84 (Third Supplemental Decision and Second Direction of Election) , and 70 N 1, R B 272 (Fourth Supplemental Decision and Amendment to Second Direction of Election) 9 Theieaftei. such objections were disposed of in our Supplemental Decision and Order, issued on February 15, 1946, in which we vacated and set aside the election The Board, however, did not dismiss the proceeding ; it retained jurisdiction thereof, stating that it would conduct another election in the future Such election was conducted in August 1946, as indicated above. On June 13, 1946, having in the interim reopened the record to adduce additional evidence, the Board issued its Second Supplemental Decision in which, among other things, we stated that the Tracy employees should be afforded an oppor- tunity to express their desires with iespect to menresentation for the purposes of collective bargaining, either as members of the association unit or as members of an independent unit, before the Board made a final determination as to the inclusion of these employees within the association unit r See, for example, Matter of Midwest Piping and Supply/ Co., Inc, 63 N L R B 1060 ; Matter of P'lotill Products, Inc, 70 N if It B 119 Matter of Lincoln Packing Co , 70 N L R B 135 , Matter of Phelps Dodge Copper Products Corporation, 63 N L R B 686 H. J. HEINZ COMPANY 3191 We find, as did the Trial Examiner, that by application and en- forcement at the Tracy plant of the master agreement, which required- - nienibership in the A F. L. as a condition of employment, from- December 21, 1945, to March 1, 1946, and from March 30, 1946, to the date of the hearing herein, the respondents discriminated in regard to hire and tenure of employment and terms and conditions, of employment at the Tracy plant, and thereby encouraged mem- bership in the A. F. L. and discouraged membership in the C. 1. 0., within the meaning of Section 8 (3) of the Act. By such conduct, by permitting A. F. L. representatives access to the plant and deny- ing it to C. I. O. representatives, and by checking off membership clues for the A. F. L. during the same period. the respondents un- lawfully assisted the A. F. L. and interfered with, restrained, and coerced employees at the Tracy plant within the meaning of Section. 8 (1) of the Act. 2. The respondents further contend that the present proceeding is barred by an adjudication of the United States Circuit Court of Ap- peals for the Ninth Circuit adverse to the Board in contempt pro- ceedings against the Association and its members, including the H. J. Heinz Company.' We find no merit in the contention. On July 15, 1940, long before the Tracy plant came into existence, that court entered a consent decree which, among other things, restrained the- iespondents from discriminating against employees in their hire and_ tenure of employment or coercing them in the exercise of the right to self-organization. The Board issued its complaint in the instant. case on April 27, 1946. On May 23, 1946, the Board filed a petition. to adjudge the respondents and others in contempt of the decree• referred to. The petition did not mention the Tracy plant. On June 19, 1946, the Board filed a motion for summary judgment in the contempt proceeding. In the motion, the Board stated, in part, that ". . . to avoid any question, we waive the right to contempt adjudi- cation based on the execution or enforcement of the separate contract between Heinz and the A. F. L. Unions. . . ." Under the circum-- stalices, we are of the opinion that the issues in the instant proceeding were not encompassed iii the contempt proceeding. Moreover, in their answer to the Board's petition in the contempt proceeding, the re- spondents demurred, denied the allegations of the petition, and averred that the court lacked jurisdiction of the subject matter. Inasmuch as the court denied the petition without opinion and thus gave no reason for its action, there is no certainty that the matter was disposed of on the merits. For these reasons, we are of the opinion that the court's order, issued on July 15, 1946, denying the The contempt proceeding is more fully referred to in footnote 10 of the Intel mediate Report 731242-47-von 72 22 :320 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Board's petition in the contempt proceeding , does not constitute a ,bar to the instant proceeding. ORDER Upon the entire record in the case, and pursuant to Section 10 (c) ,of the National Labor Relations Act, the National Labor Relations Board hereby orders that the respondents, H. J. Heinz Company, Tracy, California, and California Processors and Growers, Inc., San Francisco, California, and their officers, agents, successors, and assigns shall : 1. Cease and desist from : (a) Recognizing California State Council of Cannery Unions or Cannery Workers Union, Local No. 601, of the Internatioiial Brother- hood of Teamsters, Chauffeurs, Warehousemen and Helpers of Amer- ica, both affiliated with the American Federation of Labor, as the ex- clusive representative of employees at the Tracy, California, plant of the respondent cannery for the purposes of collective bargaining with respect to labor disputes, grievances, wages, rates of pay, hours of employment, and other terms and conditions of employment, unless and until the 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 their agreement of December 21, 1945, with California State Council of Cannery Unions and Cannery Workers Union, Local No. 601, of the International Brotherhood of Teamsters, `Chauffeurs, Warehousemen, and Helpers of America, both affiliated with the American Federation of Labor, or to any extension, renewal, or modification thereof, supplement thereto, or to any superseding contract with these labor organizations, or any other labor organiza- tion, unless and-until such organization or organizations shall have been certified by the Board as the exclusive representative of the em- ployees at the Tracy plant of the respondent cannery, provided, how- ever, that nothing herein shall be construed as requiring the respond- ents to vary or abandon those provisions of the said agreement or any extension, renewal, or modification thereof, supplement thereto, or of any superseding contract, which establishes wages, hours of employ- ment, rates of pay, seniority, or other substantive features of the rela- tionship between the respondent cannery and employees at its Tracy plant, or to prejudice the assertion by the employees of any rights that they may have under such agreement; (c) Encouraging membership in California State Council of Can- nery Unions, or Cannery Workers Union, Local No 601, of the Inter- national Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, both affiliated with the American Federation of H. J. HEINZ COMPANY 321 Labor, or any other labor organization , or discouraging membership in Food, Tobacco , Agricultural and Allied Workers Union of America, C. I. 0., or any other labor organization of employees of the respond- ent cannery at its Tracy plant , by discriminating in regard to any term or condition of their employment; (d) In any like or related manner interfering with, restraining, or coercing employees of the respondent cannery at its Tracy plant in the exercise of the right to self organization , to form ,labor organiza- tions, to join or assist Food, Tobacco, Agricultural and Allied Workers Union of America , C. 1. 0., or any other labor organization, to bargain collectively through representatives of their own choosing, and to en- gage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, as guaranteed in Section 7 of the Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act: (a) Withdraw and withhold all recognition from California State Council of Cannery Unions, and Cannery Workers Union, Local No. 601, of the International Brotherhood of Teanmsters , Chauffeurs, Warehousemen and Helpers of America, both affiliated with the Amer- ican Federation of Labor, as the exclusive representative of the em- ployees of the respondent cannery at its Tracy plant for the purpose of collective bargaining with respect to labor disputes , grievances, rates of pay, wages ; hours of employment , and other conditions of employment unless and until the said organizations , or either of them, shall have been certified by the N ational Labor Relations Board as the representative of such employees; (b) Post at the plant of the respondent cannery in Tracy, California, copies of the notice attached hereto marked "Appendix A.'' 7 Copies of said notice, to be furnished by the Regional Director for the Twen- tieth Region, shall, after being duly signed by the respondents' repre- sentatives , be posted by the respondent cannery immediately upon re- ceipt 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 respondents to insure that said notices are not altered, defaced, or covered by any other material ; (c) Notify the Regional Director for the Twentieth Region in writ- ing, within ten (10) days from the date of this Order, what steps the respondents have taken to comply herewith. MR. JAMES J. Rt:rxoi,ns, JR., took no part in the consideration of the above Decision and Order. ' In the event that this Order is enforced by decree of a Circuit Conrt of Appeals, these shall be inserted before the words "A Decision and Order," the words "A DECREE OF THE UNITED STATES CIRCUIT COURT OF APPEALS ENFORCING " 322 DECISIONS OF NATIONAL LABOR RELATIONS BOARD APPENDIX A NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, we hereby notify our employees that: WE WILL NOT recognize the California State Council of Can- nery Unions and/or Cannery Workers Union, Local No. 601 of the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America,- affiliated with the American Federation of Labor, as the exclusive representative of employees at the Tracy plant of the II. J. Heinz Company for the purposes of collective bargaining, unless and until the said organizations, or either of them. shall have been certified by the Board as the exclusive representative of such employees. WE WILL NOT give effect to our agreement of December 21, 1945, with the California State Council of Cannery Unions and Cannery Workers Union, Local No. 601 of the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Help- ers of America, affiliated with the American Federation of Labor, or to any extension, renewal, or modification thereof, supplement thereto, or to any superseding contract with these labor organi- zations or-any other labor organization unless and until the said organization or organizations shall have been certified by the Board as the exclusive representative of employees at the Tracy plant of the H. J. Heinz Company. WE WILL NOT interfere with, restrain, or coerce employees at the Tracy plant of the H. J. Heinz Company 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, C. I. 0., or any other labor organization, to bargain collectively through representatives of their owii choos- ing, and to engage in concerted activities for the purposes of collective bargaining or other mutual aid or protection. All employees at the Tracy plant of the H. J. Heinz Company are free to become or remain members of the Food, Tobacco, Agricultural & Allied Workers Union of America, C. I. 0., or any other labor organization. We will not discriminate in regard to hire or tenure of employment or any term or condition of employment against any H. J. HEINZ COMPANY 323 employee because of membership in or activity on behalf of any such labor organization. H. J. HEINz C031PANY Employer. By --------------------------------------------- (Representative ) ( Title) CALIFORNIA PROCESSORS AND GROWERS, INC. By -------------------------------------------- (Representative) (Title) Dated ---------------------- This notice must remain posted for 60 days from the date hereof, and must not be altered, de faced, or covered by any other material. INTERMEDIATE REPORT Mr. Robert E Tillman. for the Board Messrs. J. Paul St. Sure and James R Agee, of Oakland, Calif., for the re- spondents Messrs. Gladstein, Andersen. Resner. Sawyer and Edises, by Mr. Bertram Edises, of Oakland, Calif., for the C. I. 0 Mr. Matthew O. Tobriner, of Messrs. Tobriner and Lazarus, by Mr. Jonathan H. Rowell, 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 and Allied Workers Union of America, affiliated with the Congress of Industrial Organizations, herein designated as the CIO, the National Labor Relations Board, herein called the Board, by its Regional Director for the Twentieth Re- gion (San Francisco, California), issued its complaint, dated April 27, 1946, against H J. Heinz Company, herein designated as the respondent cannery, and California Processors and Growers, Inc, herein called the respondent as- sociation, alleging that the respondent cannery. and the respondent association, collectively designated herein as the respondents, had engaged in and are en- gaging in unfair labor practices affecting commerce, within the meaning of Section 8 ( 1) and (3) and Section 2 (Ei) and (7) of the National Labor Relations Act, 49 Stat. 449, herein called the Act' Copies of the complaint, accompanied by notice of hearing thereon were duly served upon each of the respondents, the CIO, and upon two affiliates of the American Federation of Labor, the In- ternational Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America,_ herein called the Teamsters, and the California State Council of Cannery Unions, herein called the Council, organizations named in the complaint as parties to the contract and collectively designated herein as the AFL With respect to the unfair labor practices, the complaint alleged, in sub- stance• (1) that on or about December 21, 1945, the respondent association, acting on behalf of the respondent cannery, recognized the AFL as the sole collective bargaining agency for certain employees of the respondent cannery at its newly constructed plant in Tracy, California; (2) that such recognition was accorded to the AFL (a) at a time when the respondent cannery employed at its Tracy plant an insignificant proportion of the workers ultimately to be 1 2 After the complaint was issued, but before the heaiing, it was amended in a minor particular to correct a clerical error 324 DECISIONS OF NATIONAL LABOR RELATIONS BOARD employed there in the conduct of seasonal canning operations, and (b) at a time when a question concerning the representation of employees at the re- spondent cannery's Tracy plant was pending before the Board; (3) that the em- ployees of the respondent cannery at its Tracy plant did not constitute an appro- priate unit for collective bargaining at the time when the respondent association, acting on behalf of the respondent cannery, accorded recognition to the AFL as their sole collective bargaining agent, and that, by virtue of the recognition accorded to the AFL under the circumstances cited, it became a labor organiza- tion assisted and maintained by unfair labor practices on the part of the respondents, and was not, at the time of its recognition, the qualified i epre- sentative of any employees at the respondent cannery's Tracy plant, within the meaning of Section 9 (a) of the Act; (4) that the respondents, since approxi- mately 'larch 1, 1946, have interfered with, restrained, and coerced tine em- ployees of the respondent canneiy at its Tracy plant in the exercise of the rights guaranteed them by Section 7 of the Act, (a) by urging, persuading and warning the said employees to refrain from becoming or remaining membeis of the CIO, (b) by demanding, under threat of discharge, that the said employees join the AFL, maintain membership therein, and pay dues, fees, and assessments to that organization, (c) by granting access to the Tracy plant to AFL representa- tives while denying similar privileges to representatives of the CIO, and (d) by requiring the said employees to execute agreements for the check-oft of AFL dues as a condition of continuous employment; (5) that on or about March 30, 1946, the respondents and the AFL agreed that a collective bargaining con- tract theretofore in effect between the respondent association, its member com- panies and the AFL should be binding on the parties with respect to certain employees of the respondent cannery at its Tracy plant; that the respondents have continued to give effect to the said contract; and that by virtue of the recognition accorded the AFL under the circus nstances already noted it was on or about 'larch 30, 1946, a labor organization assisted and maintained by unfair laboi practices on the pail of the respondents. and was not at the time of the aforesaid agreement the qualified representative of any employees at the respondent cannery's Tracy plant; (6) that, by virtue of the matters pleaded, the existing agreement between the respondents and the AFL, and all aumend- ments, renewals, and revisions thereof are illegal and void ; and (7) that the acts of the respondents as set forth in the complaint constitute unfair labor practices affecting commerce, within the meaning of Section S (1) and (3) and Section 2 (6) and (7) of the Act. Pursuant to notice, a hearing on the complaint was held in Tracy, California, on June 12, 1946. before the undersigned, Maurice M Miller, the Trial Examiner duly designated by the Chief Trial Examiner. The Board, the respondents, the C1O, and the AFL were represented by counsel and participated in the hear- ing At the opening of the proceedings the respondents filed a joint answer in which they admitted certain allegations of the complaint with respect to the nature and extent of their business operations, and certain factual matters alleged therein, but denied that the employees of the respondent cannery at its Tracy plant did not constitute an appropriate unit for collective bargaining at the time of the December 21, 1945, agreement with the AFL The answer also denied that the AFL had been assisted or maintained by unfair labor practices on the part of the respondents and further denied, in general terms, the conn fis- sion of the unfair labor practices alleged Counsel for the AFL then moved to dismiss the complaint, on the grounds (1) that the Board, in its Supplemental Decision and Order in the _llatte• of Bereut-Rccltartls Packotp Company. et at ,2 2 65 N L R B 1052 H. J. HEINZ COMPANY 325• bad decided, in effect, that the respondents and the AFL could not lawfully execute the agreements now in issue, and had thereby disqualified itself from deciding the instant case, and (2) that the complaint does not state a cause af action. The motion was denied by the undersigned, with permission to renew it at an appropriate time later in the hearing The AFL then filed an answer- admitting certain factual allegations of the complaint, but denying, in effect, that the respondents had committed the unfair labor practices alleged. The parties were afforded full opportunity to be heard, to examine and cross- examine witnesses, and to introduce evidence pertinent to the issues At the- close of the testimony, counsel for the AFL renewed his previous motion to dismiss the complaint. No ruling upon the motion was made by the undersigned It is considered below. Counsel for the Board then moved to conform the com-- plaint to the proof with respect to minor matters The motion was granted. At the conclusion of the hearing the undersigned and counsel for all parties engaged in an informal discussion of the issues The parties were granted two, weeks within which to file briefs with the undersigned. A brief has been received from the AFL 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 RESPONDENTS H. J Heinz Company is a Pennsylvania corporation engaged in the business of canning and processing fruits and vegetkbles. It owns and operates can- neries in various states of the United States, including a plant at Tracy, Cali- fornia, which alone is involved in the instant proceeding Regular production (lid not commence at the Tracy plant until March, 1946 From that date, until the date of the hearing, the respondent cannery processed or canned at its Tracy plant products valued in excess of $100,000, of which more than 50,% was sold and shipped from the plant to customers located at points outside the the period of operations described above, the- State of California. During respondent cannery purchased from sources outside the State of California practically none of the materials used at its Tracy plant The respondent cannery admits that, in the operation of its plant at Tracy,. California, it is engaged in commerce within the meaning of the Act. California Processors and Giowers, Inc. is, and has been since December 18, 1936, a non-profit corporation organized and existing under the lair s of the State of California, having its principal office and place of business at San Francisco, California, where it is engaged, among other things, in the promotion of friendly relations and cooperation between its member companies and their respective employees, the ascertainment and dissemination of information bearing upon employer-employee relationships among its nienibers and their competitors, the representation of its members in collective bargaining with their respective employees, the enforcement of agreements between its member companies and their employees, and in conferring with and advising its members in matters- pertaining to their employer-employee relations The members of the respond- ent association, among which the respondent cannery is included, constitute a group of cannery operators processing approximately seventy-five percent of the canned fruit and vegetable pack of the State of California i Unless otherwise noted, all findings of fact made herein are based upon allegations of the complaint admitted by the respondents, or upon stipulations received in the course of the hearing =326 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The respondent association admits that it is an employer, within the meaning of Section 2 (1) and (2) of the Act, whose activities bear the same relation to commerce as the activities of the employers in whose interest the respondent association acts lI THE ORGANIZATIONS INVOLVED Food, Tobacco, Agricultural, and Allied Workers Union of America, affiliated with the Congress of Industrial Relations, California State Council of Cannery Unions, affiliated with the American Federation of Labor, and Cannery Workers Union, Local No. 001, of the International Brotherhood of Teamsters, Chauffeurs, -Warehousemen and Helpers of America, A F of L, are labor organizations -admitting to membership employees of the respondent canneiy and employees of other members of the respondent association III. THE UNFAIR LABOR PRACTICFS A. The general course of the anfatr labor practices 1. The setting in which the unfair labor practices occurred Upon separate petitions duly filed in the summer of 1945, alleging that ques- -tions affecting commerce had al isen concerning the representation of employees at the plants of certain members of the respondent association and certain in- dependent companies in the fruit and vegetable canning industry, the Board -provided for an appropriate consolidated healing on the matters thus placed in issue. The hearing was held on various dates between July 3 and September 11 of the year in question. Thereafter, on October 5, 1945, the Board issued a telegraphic order and direction of elections in the consolidated proceeding, sub- ject to confirmation in a later written opinion. The written opinion was issued on October 12, 1945.' In conformity with the provisions of the telegraphic order thus confirmed, elections were held at the various canneries involved in the -proceeding, under the direction and supervision of the Board's Regional Director for the Twentieth Region, between October 11 and October 18, 1945 Between October 29, 1945 and January 5, 1946, the AFL filed objections to the conduct of the ballot in the several elections affecting employees of the respondent -association's members, and the independent companies The Report on Objec- -tions issued by the Regional Director on January 16. 1946, concluded with a finding that the objections of the AFL raised no substantial or material issues -with respect to the conduct of the elections, and recommended that they be overruled. On February 15, 1946, however, the Board issued a Supplemental Decision and Order in which it found, with one member dissenting, that certain of the objections had merit, and ordered that the elections theretofore held be vacated and set aside.' * Matter of Bercut Richards Packing Company, at al., 64 N L R B 133 The Board found that all production and maintenance employees of the respondent association' s members, with the customary exceptions, constituted a single unit appropriate for the purposes of col- lective bargaining, and directed elections by secret ballot within the association-wide unit and separate units similaily constituted for each of several independent companies. ' The election at one cannery was held on December 20. 1945 6On the day after the hearing in the instant case, June 13, 1946, the Board issued its Second Supplemental Decision in the Matter of Bercut-Richards Packing Company, et al., 68 N L. R B 605 The undersigned takes judicial notice that the decision in question includes a determination as to the scope of the association-wide unit, and the time at which further elections within that unit should be held. To the extent that these deter- minations are material in connection with the issues raised by the present proceeding, they will be discussed more fully hereinafter H. J. HEINZ COMPANY 2. The construction of the Tracy plant 327 On a date in 1945 which does not appear in the record the respondent cannery undertook to construct a plant at Tracy, California, for the canning and proc- essing of fruits and vegetables. On April 10 of that year the CIO filed with the Regional Director for the Twentieth Region a petition for the certification of representatives affecting employees at the respondent cannery's Tracy plant, subject to the customary exclusions of supervisory and office personnel. The petition, docketed as Case No 20l-R-1363, alleged, niter altia,, that the unit appro- priate for collective bargaining at the Tracy plant contained approximately 500 employees, of whom 300 had designated the petitioner as their bargaining representative On April 17, 1945, however, when J. Paul St. Sure, acting on behalf of the respondent association, replied to the notification that a petition had been filed, he advised the Regional Director that the plant in question was- under construction, and that the respondent cannei y had no employees there at the time' On July 22, 1945, the CIO requested withdrawal of the petition with- out prejudice. In a letter dispatched on the same date, however, it notified the respondent cannery, `at its office in Pittsburgh, Pennsylvania, that the with- drawal request was being made "with the understanding that our Union will be allowed to participate in any determination made to select the proper bar- gaining agent for these employees." Two days later, on July 24, 1945, the with- drawal request was approved by the Regional Director. The Tracy plant of the respondent cannery was not involved in the Be?cut- Richards case, already noted, and no election has ever been directed or conducted- among employees of the respondent cannery at the plant. On October 30, 1945, however, when all but one of the elections directed in the Bercut-Rschards case had been completed, the C10 filed a second petition, docketed a§ Case No. 20-R-1593, for certification of the bargaining representative for all production and maintenance employees of the respondent cannery at its Tracy plant, except for the usual clerical and supervisory exclusions. The petition alleged that the unit described as appropriate for collective bargaining contained approximately 200 employees, of which number a majority had desig- nated the petitioner as their bargaining representative. However, in letters of substantially similar tenor dated November 27, 1945, Mr. St Sure advised the Iloaid's Regional Director and the petitioning union that the second petition was also premature, stating that the plant was still under construction, was not operating, and had no production employees on its pay roll at the time. The- petitioning union was also informed that the plant probably would not be in operation "until after the first of the coining year." In reply, by a letter dated November 28, 1945, the CIO informed the respondent association, through Mr. St Sure, that it believed the plant to have been engaged in productive operations, and further reported its belief that `.efforts are being made by the A. F L to, obtain recognition " The letter went on to point out that in the face of the in- formation provided with respect to the Tracy plant, "It is ... obvious that any recognition or contractual arrangement entered into with the AFL would be- improper and in violation of the National Labor Relations Act." The record contains no indication of a response. T The letter contained the statement that "H. J. Heinz Corporation is a member of California Processors and Growers , Inc , and all labor ielations matters involving the Com- pany in connection with its California operations are handled by this office " The intended reference was obviously to the office of Mr. St. Sure as attorney for the respondent asso- ciation. It was also pointed out that "California Processors and Glowers has a master contract with Cannery Workers Union which covers all operations of the member com- panies", and Mr. St Sure concluded with the suggestion that "the situation resulting from this contract" be discussed with him by a Field Examiner of the Board. -328 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 3. Extension of the Master Agreement to the Tracy plant On an early date in the month of December, 1945, which does not appear in the record, Cannery Workers Union, Local No 601, requested the management of the respondent cannery at Tracy to execute a Memorandum of Agreement with the AFL, which provided, inter alta, for the "adoption" by the parties of a printed agreement attached thereto,' subject to certain amendments of the union security clause in the aforesaid printed agreement, and certain additional pro- visions with respect to wages and the adjustment of grievances On December 5, 1945, the Memorandum of Agreement was sent to the respondent association by the H..1. Heinz Company, with a covering letter which indicated that the AFL representatives had been informed that the labor problems of the respondent cannery were handled through the office of Califoinia Processois and Growers, Inc. The record indicates however, that the Memorandum of Agreement thus submitted was never executed by the parties Thereafter, on December 20, 1945, the respondent association and Cannery Workers Union, Local No 601, addressed a joint letter to Omni .1 Hoskins, U S Commissioner of Conciliation, in which the lattet was requested to conduct "a -cross check of employees and union applications" at the Tracy plant, for the pay-roll period endi ng December 16, 1945. Mr. Hoskins reported on the following day that he had conducted the desired cross-check, and that his comparision of the records submitted by the respondent cannery and Cannery Workers Union, :Local No. 601, revealed 12 employees then on the pay roll of the Tracy plant, 10 of whom had authorized Cannery Woi kern Union, Local No 601, to represent them in collective bargaining. Upon the basis of this report the respondent association, "representing the H. J. Heinz Company for all its California cannel y operations including [the] plant at Tracy," on December 21, 1945, recognized Cannery Workers Union, Local. No 601, as the sole collective bargaining agent for the production employees of the respondent cannery at its Tracy plant. Counsel for the respondents stated at the hearing, and the undersigned finds, that the act of recognition, embodied in the letter of December 21, 1945, from the respondent association to the Cannery Workers Union, carried with it the exten- sion of the Master Agreement, as amended, to the Tracy plant, and the application of its terms to the persons employed there It was further stated and the under- signed finds, that such extension of the Master Agreement was in accordance with past practice in similar plants, and in conformity with the understanding of the parties. Counsel for the AFL stated without contradiction, and consist- ently with the balance of the record. that the Master Agreement thus extended to the Tracy plant is administered by Cannery Workers Union, Local No 601, as the successor to Cannery Workers Union, Local No 20676, A. F. of L., although the nominal union parties-to the extended agreement are named therein as the American Federation of Labor and the California State Council of Cannery Unions, as collective bargaining agents for federal locals chartered directly by the parent organization The contract in question consisted, at the time, of the agreement executed on June 10, 1941, by the aforesaid parties and the respondent association, the amendments of January 26, 1942 and July 10, 1943, which are matters of record in this proceeding, the Supplementary Emergency Agreement of July 10, 1943, which is also a matter of record, and two additional amendments described only in general terms during the course of the hearing-an agreement in 1945 which incorporated into the Master Agreement the provisions of a 1944 8 The printed agreement in question is identified in the Menioianduni as the Master Agreement between the respondent association and the AFL, as amended H. J. HEINZ COMPANY 329 Nliiective of the War Laboi Board, and a tutther agreement executed in October, 1945, affecting wages 4 Subsequent developments at Tracy Between December. 1945 and March of the current year, the highest number of persons on the pay roll of the i espondeut cannery iii stated monthly periods grew from 13 employees in January, 1046 to 213 in March In the meantime, on a date which does not appear in the record, the Regional Office of the Board re- quested the CIO to withdraw its petition in Case No 20-R-1593. This request was rejected, and on January 29, 1946, the Regional Director advised the parties that he would refuse to issue a Notice of Hearing on the case. An appeal from the ruling of the Regional Director was taken by the CIO, and on February 28, 1946, the Regional Director's ruling was sustained by the Board It is alleged in the complaint that the respondents and the AFL, on or about March 30, 1946, agreed that the ina^Aer contract or '•Ci een Book Agreement," previously mentioned, should be binding upon all parties thereto with respect to the employees of the respondent cannery at its Tracy plant. No evidence in sup- port of this allegation was offered by the Board Counsel for the respondents, however. conceded that the agreement in question, the enforcement of which had been suspended by the respondent association on March 1, 1946, was renewed at Tracy and throughout the association bargaining unit at the end of March. He stated credibly, and without contiadiction, that enforcement of the contract had originally been suspended by the respondent association on March 1, 1946, its terminal (late, because of the caveat contained in the Board's Supplemental Deci- sion and Order in the Bet ciit-Richai di case, to the effect that none of the unions involved therein was entitled to in exclusive status as the bargaining agent after the terminal date of the contract. For a period of approximately one month thereafter, according to counsel, member companies of the respondent associa- tion attempted to operate in a state of "suspended animation" insofar as enforce- ment of the agreement was concerned On of about the 30th of March, however, according to counsel, it became "apparent" to the respondent association that continuation of this state of alfans was no longer "practical." On that (late, therefore, the respondent association announced publicly that it would resume operations under the Master Agreement, which would be administered as it had been in the past. The effect of this action at Tracy was to reinstitute on March 30, 1946, the enforcement of the agreement of December 21, 1945, which had been temporarily suspended in the month of March Before and after the period of suspension, and at all times between December 21, 1945, and the date of the hearing except for the period of suspension, the Master Agreement has beep enforced in the Tracy plant of the respondent cannery. In the administration of that contract the respondent cannery has required its employees to affiliate with the Cannery Workers Union. Representatives of the AFL have been permitted access to the plant in accordance with the provisions of Section 11 of the agreement' And voluntary clues check- off authorizations for the AFL, when executed in the form approved by the War Labor Board, have been honored as presented Employment at the Tracy plant under the agreement thus applied, reached its highest point before the hearing in April, 1946, when 279 persons were employed 9 R L Warren , a CIO organizer , and the only witness called by the Board , testified that the plant manager had refused to Permit him access to the plant during the spinach pack- ing season , in March or April , 1946, for the purpose of distributing CIO leaflets , and had cited the contract with the AFL, as the reason for his refusal of peiinission 330 DECISIONS OF NATIONAL LABOR RELATIONS BOARD by the respondent cannery. June employment was given to 192 persons It was stipulated, however, that peak employment would be reached approximately in August of this year, and that about 800 persons will be then employed by the respondent cannery in its Tracy plant. B. The contentions of the respondents and the parties to the contract 1. Contentions in the nature of a plea in bar It is argued by the AFL, in its motion to dismiss the complaint, that the Board has prejudged the instant proceeding in its Supplemental Decision and Order in the Bercut-Richards case, by including therein the dictum previously noted. This contention, however, misconceives the purpose and effect of the statements to which reference is made In announcing that the legal effect of its determina- tion to vacate the 1945 elections was to keep the existing question of representa- tion pending before the Board, and that none of the unions involved would be entitled to exclusive status as the bargaining agent for the employees involved after the terminal date of the AFL contract then current, the Board merely reiterated "well-established principles" previously enunciated in its decisions and approved by the courts. Such reiteration cannot be considered the equivalent of an order. It constitutes, at most, effective notice to the parties that the extension of preferential tientinent by the respondents to any of the labor organi- zations involved, before a new election, would subject the parties to appropriate action under the Act. The contention that the Board, by virtue of the pronounce- ment cited, has rendered itself unable to decide the instant case impartially contains no merit, and presents no bar to consideration of the present action. Counsel for the respondents and the AFL also discussed in this connection a matter now pending in the United States Circuit Court of Appeals for the Ninth Circuit on petition of the Board for a rule to show cause as to why the respondent association and certain of its member companies should not be held in contempt of a previous consent decree,10 and the effect of that proceeding on the instant case. In effect, it is argued by the AFL that the present proceeding embraces issues substantially identical with those raised in the Board s petition before the Circuit Court, and that action upon the complaint in the instant case involves both dupli- cation of effort and harassment of the parties to the contract Although the respondents assert no legal bar on the basis of the Board's petition, it is argued ,that the instant case is essentially an ancillary proceeding, any determination of which would necessarily require the Board to pass upon issues now before the Circuit Court, and that the present action is thus subject to both a logical and a moral bar. These contentions are without merit. Even if it be assumed that the petition of the Board, as originally filed. was sufficiently broad to place in issue as part of the alleged contempt the conduct of the respondents with respect to the Tracy plant, the undersigned notes that the Board, in its subsequent motion for sum- mary judgment, expressly waived any right to a contempt adjudication with re- spect to the contract currently in effect at the aforesaid plant of the respondent cannery. It is plain, therefore, that the issues raised by the present complaint represent no duplication of those before the Circuit Court They are substan- tially different. And although it may be true that the acts which form the basis 11 The proceeding to which reference is made, N. L R. B v. Bercut-Richards Packing Co., ct al, No 9499, appears to rest upon the construction of a 1940 consent decree, entered by the Circuit Court in conformity with Board orders based upon stipulations in the Matter of Bercut-Richards Packing Co., et al, 22 N L R B 250 H. J. HEINZ COMPANY 331 of the present complaint derive in the ultimate analysis from the same situation which gave rise to the petition before the Circuit Court . the posture of affairs with respect to the Tracy plant is sufficiently particularized to provide full justi- fication for proceeding to an independent administrative adjudication in the in- stant case. In sum, the appeal to the Board's discretion which is implicit in the assertion of the contempt proceeding as a logical and a moral bar is lacking in substance . And the pendency of the contempt proceeding provides no war- rant for the contention that the parties are being inconvenienced or harassed when called upon to present such defenses as they may have in the matter now before the undersigned. 2. Contentions with respect to the merits Counsel for the respondents, seconded by the AFL, argued vigorously and at length that the present proceeding is untimely and inappropriate because the Board has heretofore failed to fix the relationship of the Tiacy plant to the asso- ciation unit, although specifically requested to do so in connection with the Ber- cut-Richards case. It is contended that the Board's apparent election to con- sider the Tracy plant as a separate unit for the purposes of the instant case is inconsistent with its unit finding in the Bercut-Richards case; that the Board has been requested to clarify its determination and fix the status of the Tracy plant in connection with that proceeding ; and that it has no right, in the instant proceed- ing, to prejudge a matter which remains undecided in the original representation case This contention is without merit Insotar its it is based upon the alleged failure of the Board to clarify its unit deter nnnation in the original Bet cat- Ra,cliatds decision, the undersigned notes that the argument has been rendered moot, at least in part, by the Second Supplemental Dacision in that proceeding" It is the further opinion of the undersigned, however, that the Board is under no obligation in law to withhold action on the present complaint until clarifica- tion of the unit problem in the representation case The contention of the re- spondents to the contrary misconceives the theory of the Board's complaint, and the effect of the legal principles which it seeks to invoke. The respondents argue, in effect, that the issues to be resolved if Tracy is considered as a separate unit are substantially different from those which arise if Tracy is considered as part of the association unit, and that the respondents are entitled to know the position of the Baud in this connection in order to prepare appropriate defenses Their position appears to be based upon the belief that a determination as to the scope of the association unit, trod the status of the Tracy phint with respect thereto, is a necessary prerequisite to any finding that the respondents extended recognition to the AFL for employees at the Tracy plant in violation of the Act. The undersigned finds no warrant for this assumption in the it In that Decision , the Board expressed itself as follows The record indicates that, as a normal piactice, plants of CP&G members have been included under the A F L contract onli upon a showing that a majority of the employees in individual plants have selected the AFL as their bargaining repre- sentative Under the circumstances we aie of the opinion that, before making a final deteunination as to the inclusion of these employees within the CP&G unit such employees should be afforded an opportunity to express their desires with iespect to representation for the purposes of collective bargaining, either as members of the Cl'&G unit or as members of independent units , as reflected in separate elections (footnote ) Upon the results of these elections will depend, in part, our defermina- tion with respect to the type of unit through which the employees hereinabove men- tioned [employees at the new plant of the H J Heinz Company, recently opened at Tracy, California ] may exercise their right to bargain collectively. 332 DECISIONS OF NATIONAL LABOR RELATIONS BOARD facts or the law. The present proceeding was brought to test the legality of the- respondent's action in extending recognition to the AFL at Tracy under the cir- cumstances established by the record, and to determine whether extension of the Master Agreement to the plant, under these circumstances, interfered with, re- strained, and coerced employees of the respondent cannery in their choice of a bargaining agent. The i equirement that employees enjoy complete treedoim of choice in the selection of it collective bargaining representative remains the same regardless of whether it is ultimately determined that the employees ln- volved remain a part of the association unit or constitute a separate appropriate unit It follows, and the undersigned finds, that ultimate determination of the several unit questions implicit in the Bei cut-Rich m d s case cannot and does not affect the decision to be made on the issues raised by the present complaint. The respondents argued at the hearing, and the Board has now found in the Bercut-Richards case, that new plants of the assocmtion members are normally incorporated in the association unit and covered by its contract with the AFL only upon it showing that a uajority of the employees in each of the individual plants have selected the contracting union as then bargaining representative Counsel also argued, however, that determination of a unions majority status in the off-season, at any time selected by the union for the piesentation of its clarnns of representation, is proper and in accord with the decisions of the Boat d In this connection it was contended further that the Boards delimitation of the associa- tion unit in its original decision on the Bercut-Brehm (Is case-in the face of testi- mony as to the manner in which the association unit has been developed and en- larged-must be construed to constitute Board approval of the aforesaid prac- tice, as applied throughout the association unit and at the respondent cannery's Tracy plant. . Even if it be assumed that testimony on the aforesaid practice was received in the original Bercut,-Richards hearing, the conclusion stated does not necessarily follow In the oiiguial hearing on the Bercut-Richards case, which did not in- volve the Tracy plant, the manner in which the association unit had developed was not before the Board The procedure of the respondent association and its mem- bers in that connection was considered for the first time in the reopened hearing which preceded the Second Supplemental Decision It was in that decision that the Board expressed itsell, for the first tune, its to the procedure to be followed in the enlargement of the association unit its expression is in accord with well- established principles previously developed and enunciated by the agency" That expression, for the reasons cited hereinaftei. cannot be construed as approval of the procedure followed with respect to the Tracy plan In effect, the Board has held, and now holds, that the extension of an existing multi-plant or multi- cniployer unit to new plants or operating units by adnnnrstrative fiat would deny to tile'employees in such operations the right to it representative of their own choosing The propriety of extending the unit to include such employees should be detemmned in a representation proceeding initiated when they are actually em- ployed and have an opportunity to voice their desires as to a collective bargaining agent As applied to the fruit and vegetable canning industry, which is admittedly differentiated from other industrial enterprises by its seasonal variations in activity and employment. the principles thus enunciated obviously require that the desires of the employees be ascertained at the tune when a representative 12 Matter of Chrysler Coi poi ation, 13 N L. R B 1303, 17 N L R B 737, 28 N L R B. 1038, 37 N L R B 877, Matter of Demuth Glass Worlds, Inc, 53 N L R B 451 and Sup- plemental Decision issued Febiuai y 12 1944 , Matter of North American Creamei ies, Inc , 57 N L R B 795; Matter of The American Steel and Wire Company of Neu, Jcrteii, 63 N. L. It B. 1244; Matter of the Texas Company, Producing Depai tment, 63 N L If B 1.;34. H. J. HEINZ COMPANY 333' number are employed in the opeiatmg unit or units involved." This was not the case at Tiacy The plant was in the process of construction. On December 21, 1945, the respondent cannery employed at its Tiacy plant 12 pi oduction and main- tenance employees, It) of whom had designated the AFL as their bargaining rep-- resentatiye. It was stipulated by all parties that the respondent canner} would employ approximately S00 persons at the peak of its season in Tracy Upon this' state of the record it is clear that recognition was accorded the AFL at a time when the respondent cannely eniploved but a small percentage of the workers ultimately to be- employed by it in the conduct of seasonal canning operations Even if it be assumed that the Board has now approved, in substance, the method used by the respondent association and its members to extend the association unit, as described above, its action cannot be construed as approval of the respondents' conduct at Tracy with iespect to the time when the representation claims of the conti acting union were tested And it is essentially upon the ground that the re- spondents acted prematurely, that their contention falls" It is contended by the AFL in connection with its motion to dismiss that, since the Board had previously set aside the elections held in the Bercut-Richards case, the respondents were not only permitted to recognize and bargain with the AFL, as the existing bargaining representative of the respondent cannery's employees, but were in fact obligated to do so unless and until a new bargaining agent is chosen In support of this conclusion, it is argued that the AFL has been "for many years" the exclusive bargaining representative of the respondent cannery's employees at other plants, and the exclusive bargaining representative of em- ployees at "all California canneries which are members of the respondent associa- tion " The AFL contends that all employees at the canneries of the respondent association's members constitute a single unit appropriate for the purposes of collective bargaining It is upon the asserted status of the AFL in the bargain- ing unit thus defined that its contention with respect to the respondent cannery's Tracy plant is based. In effect, the AFL reasons, by a process of elimination, that since no other bar- gaining agent has been certified for the association unit of which the Tracy plant is a part, it remains the choice of the majority and is entitled to be recognized and dealt with as such-on the theory that once its status as a majority representa- tive is established, the representation continues until another representative has been selected by the employees and certified by the Board. These contentions are without merit It is true that the Board has consistently held that a certified bargaining agent must be accorded due opportunity to function before a new agency may be chosen, but that issue is not present here. The Tracy plant was not in existence as an operating enterprise when the original questions concerning representation in the association unit were raised in the Bercut-Rich- ards case. Whatever the status of the AFL may be with respect to the association unit as defined in that proceeding-a question which the undersigned does not consider-it is clear that it could lay no claim to act as the bargaining agent of employees at the Tiacy plant, unless and until selected'as'such by a majority of the workers employed there in a representative period of the canning season. Under the circumstances of the instant case, and in the light of the anticipated expansion of employment at the Tracy plant, the designation of the AFL in Decem- ber, by a majority of the small group then employed there, was insufficient to jus- tify the extension of recognition to the aforesaid organization. 13 Matter of Olive Piodact.s Covipavil, 67 1V L R B 842 . of Matter of Bethlehem '1'rani- portation Corporation, 66 N L R. B 345 , Matter of Nicholson Transit Conipanry. 6G N L R B 597. 14 Cf. Matter of Merry Shoe Company, 10 N L R B. 457 -334 DECISIONS OF NATIONAL LABOR RELATIONS BOARD In addition, it is undisputed that a petition for the certification of representa- tives at the Tracy plant was pending before the Board at the time when the respondents accorded recognition to the AFL for employees at the plant and "extended the Master Agreement to Tracy The respondents admit, and actively urge as a defense, that they had prei iously requested the Board to fix the status of the Tracy plant with respect to the association unit in the Bercut-Richards case, -which directly involved the latte! group In extending recognition to the AFL at "Tracy, however, the respondents arrogated to themselves the determination of the unit question, as well as the question of the contracting union's majority status -therein, although both questions, under the circumstances disclosed by the record, had clearly been referred to the exclusive jurisdiction of the Board This was ,clone, moreover, at a time when the respondents admittedly knew that both of -these questions were before the Board in representation proceedings initiated by .a rival union Under such circumstances it is incumbent on the employer to main- ,tain strict neutrality between the rival unions ; the machinery of the Board was created expressly to determine impartially the precise questions at issue, and to eliminate the necessity for an employer to make such decisions. The respondent and the AFL, who disregarded that machinery, cannot now claim for their inde- pendent action the protection of the Act In sum, far from being,obligated to recognize and bargain with the AFL as the bargaining representative of the respondent cannery's employees at Tracy, the respondents were required, under the Act, to refrain from doing so until the Board determined the appropriate bargaining unit, or established the means for the determination of that question in connection with its election process. The undersigned finds the motion to dismiss filed at the hearing by the AFL -to be without merit. The motion is hereby denied. C. Concluding findings Upon the admitted facts in the present record, it is manifest that the respond- ents knowingly extended recognition to the AFL at Tracy at a time when the number of workers employed at the plant constituted only a small percentage of -the contemplated number of employees. The action taken by the respondents effectively precluded employees hired subsequently from expressing their own desires with respect to the choice of a collective bargaining representative. By extending recognition to the AFL under the circumstances noted, and by enforc- ing the terms of the Master Agreement at the respondent cannery's Tracy plant thereafter, the respondents have usurped the right of the employees to select -their own representative, and have foisted their own choice in that connection upon employees hired after December 21, 1945 In addition, it is clear that the respondents took the action aforesaid with full -knowledge that the petition of a rival union for the determination and certifica- tion of a collective bargaining representative at the respondent cannery's Tracy -plant was then pending before the Board. Counsel for the respondenrs has argued that the statement in the verified -petition with respect to employment at the Tracy plant and the majority status -of the petitioner therein was patently false when made and was therefore in- effective to raise a question concerning representation with respect to the afore- said plant No evidence has been produced, however, to establish that the peti- tions were filed with intent to deceive, or for any purpose other than to invoke Board action to determine a valid question of representation 15 In any event, it is sufficient to say that the bona fides of the petitioner was, and is, a question for ,the Board. Respondents were presented with something more than a mere 15 See Matter of Lennox Furnace Comp anij, 50 N L R B 80 H. J. HEINZ COMPANY 335 informal claim for recognition; the petitioner had submitted its claim in formal fashion to the Board's administrative process. Upon this posture of the case, as the Board has recently stated, The Board may reasonably require restraint on the part of an employer and a labor organization, engaged in negotiations, during the relatively shoat period necessary to conclude Lits] preliminary investigations, and hold that they act at their peril in consummating an agreement with knowledge of the pendency of the proceeding before the Board 10 The respondents, however, have exercised no such restraint. Their conduct, accordingly, must be judged in the light of the "well-established principles" cited by the Board in the Bercut-Ricl ai ds case, to which reference has already been made. In the opinion of the undersigned, a detailed exposition of these principles is not requit ed in connection with tills In occedli ng It may now be taken as datum, on the basis of Board and court decisions, that an employer who iecognizes and signs a contract with a labor organization as the exclusive representative of employees in a given unit, while a proceeding to determine whether that labor organization or another presently represents the employees involved is pending before the Board, has assisted the conti acting union thereby, and inter- fered uu ith, restrained and coerced such employees in violation of the Act 1' Such is the situation in the instant case. By the extension of the blaster Agreement, on December 21, 1945, to covet employees of the respondent cannery at its Tracy plant, at a time when the said employees were insufficient in number to constitute an appropriate unit for collective bargaining, and while a question concerning the representation of such employees was pending berme the Board, the respondents necessarily assisted the AFL by adding to its prestige, and clearly indicated to the employees of the respondent cannery their intent and desire that the AFL should be selected as the collective bargaining tept esentative The purpose and effect of the atore- said action was confirmed and emphasized by the unilateral action of the respond ents on March 30, 1940, in renewing enforcement of the aforesaid contract at the 'T'racy plant after its application had been temporarily suspended. More- over. iii applvnng and enforcing the terms of the agreement, the respondents necessatily coerced the employees of the respondent cannery at its Tracy plant and interfered with their tree choice of representatives, by requiring, in accord- ance with its terms, that etnployees affiliate with the AFL as a condition of employment, by permitting access to the plant to representatives of the AFL while de'iying similar pimvileges to representatives of the CIO, and by honoring dues check-off authorization slips for the AFL as presented. By i ecogniznng the AFL, on December 21, 1945, as the exclusive bargaining representative of the respondent cannery's employees at its Tracy plant, and b> extending the blaster Agreement to cover the atoresaid employees, at a time when the said employees were insufficient in number to constitute an appropriate unit foi collective bargaining, and with knowledge that a question of repiesenta tion affecting the said employees was then pending and undecided before the Board, the respondents have indicated their approval of the AFL, accorded it unwarranted prestige. encouraged membership therein, discouraged membership 16 Not ter of General Electric X-Rao Coi poi atioiy 67 N L R B 997 11 Matter of Mulieest Piping aril Supply Co , Inc . 63 N L R B 1060, 1069, 1071 Matter of 1'7iclp.s Dodge Corporation, 63 N L It B 686, 687; Matter of Ken-Rad Tube and Lamp Corporation, 62 N L R B 21, 24-25, 36, Matter of Elastic Stop Nut Corporation, 51 N 1, It B 694, 701-702, enforced 142 F (2d) 371, 375, 379, 380 (C C A 8), cert denied 12't U, S 722 731242-47-vol. 72 2:; 336 DECISIONS OF NATIONAL LABOR RELATIONS BOARD in the CIO, and thereby rendered unlawful assistance to the AFL, which inter- fered with, restrained, and coerced the employees in the exercise of the rights guaranteed in Section 7 of the Act. In addition, by the application and enforcement at the Tracy plant of the terms contained in the Master Agreement, horn December 21, 1945 to March 1, 1946, and from March 30, 1946 to date, the respondents have discriminated in regard to the hire and tenure of employment and the terms or conditions of employment at the aforesaid plant, to encourage membership in the AFL and discourage membership in the CIO,` and have thereby also interfered with, restrained, and coerced the employees o1 the respondent cannery in the exercise of the rights guaranteed in Section 7 of the Act 1V. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the respondents set forth in Section III, above, occuriing in connection with the operations 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 ob- structing commerce and the tree flow of commerce. V. THE REMEDY Since it has been found that the respondents have engaged in unfair labor practices, it will be recommended that each of them cease and desist therefrom, and take certain affirmative action designed to effectuate the policies of the Act. It has been found that the respondents unlawfully assisted the AFL, and interfered with the rights of employees to join or assist the CIO, by recognizing the AFL as the exclusive collective bargaining representative of certain em- ployees at the Tracy plant of the respondent cannery, and by extending to the aforesaid plant the contract between them and the AFL designated herein as the Master Agreement. It is obvious that a free selection by the aforesaid em- ployees of their collective bargaining representative cannot be made if con- tractual recognition has been accorded by the respondents to one of the rival unions The undersigned, accordingly, recommends that the respondents cease and desist from recognizing the AFL as such exclusive collective bargaining representative unless and until it is certified as such by the Board Since the Master Agreement, as applied at the respondent cannery's Tracy plant, per- petuates the respondents' unlawful assistance to the AFL and precludes the employees from presently exercising then right to select a bargaining repre- sentative of their own choice, the undersigned further recommends that the respondents cease giving effect to the Master Agreement at Tracy in accordance with the agreement of December 21, 1945, as unilaterally renewed on March 30, 1946, or to any extension, renewal, or modification thereof, supplement thereto, or any superseding contract, unless and until it is certified by the Board as the exclusive collective bargaining representative of the respondent cannery's Tracy employees Nothing herein, however, should be construed as requiring the re- spondents to vary or abandon those provisions of the Master Agreement, or any extension, renewal, or modification thereof, supplement thereto, or of any superseding contract, which establish wages, hours of employment, rates of pay, seniority, or other substantive features of the relationship between the re- spondent cannery and employees at its Tracy plant, or to prejudice the assertion by the employees of any rights they may have under such agreement. a Cie Jefferson Electric Company V N L R R , 102 F (2d) 949, 955 Mattel of hinny Shoe Company, 10 N L R 13 457 462 H. J. HEINZ COMPANY 337 Upon the foregoing findings of fact, and upon the entire record in the case, the undersigned makes the following: CONCLUSIONS OF LAW 1 Food, Tobacco, Agricultural and Allied Workers Union of America, affil- iated with the Congress of Industrial Organizations, and California State Coun- cil of Cannery Unions and Cannery Workers Union, Local No. 601, of the Inter- national Brotherhood of Teamsters. Chauffeurs, Warehousemen and Helpers of America, both affiliated with the American Federation of Labor, are labor or- ganizations, within the meaning of Section 2 (5) of the Act. 2 California Processors and Growers, Inc, is an employer, within the meaning of Section 2 (1) and (2) of the Act 3 By interfering with, restraining, and coercing employees at the Tracy plant of the respondent cannery in the exercise of the rights guaranteed them in Section 7 of the Act, the respondents have engaged in and are engaging in unfair labor practices within the meaning of Section 8 (1) of the Act. 4 By discriminating in regard to the terms and conditions of employment affecting employees at the Tracy plant of the respondent cannery, under the terms of their agreement of December 21, 104:,, with the California Slate Council of Cannery Unions, and Cannery Workers Union Local No. 601 of the Interna- tional Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, both affiliated with the American Federation of Labor, thereby en- couraging membership in these organizations and discouraging membership in the Food, Tobacco, Agricultural and Allied Workers Union of America, affiliated with the Congress of Industrial Organizations, the respondents have engaged in and are engaging in unfair labor paaetices, within the meaning of Section 8 (3) of the Act 5 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, H. J. Heinz Company, Tracy, California, and California Processors and Growers, Inc, their officers , agents, successors, and assigns shall: 1. Cease and desist from : (a) Recognizing the California State Council of Cannery Unions and Can- nery Workers Union, Local No. 601, of the International Brotherhood of Team- sters, Chauffeurs, Warehousemen and Helpers of America, both affiliated with the American Federation of Labor, as the exclusive representatives of employees at the Tracy, California, plant of the respondent ctnnery for the purposes of col- lective bargaining , unless and until the 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 their agreement of December 21, 1945, with the California State Council of Cannery Unions and Cannery Workers Union, Local No. 601, of the International Brotherhood of Teamsters, Chauffeurs, Warehousemen, and Helpers of America, both affiliated with the American Federation of Labor, or to any extension, renewal, or modification thereof, supplement thereto, or to any superseding contract with these labor organizations, or any other labor organiza- tion, unless and until the said organization or organizations shall have been certi- fied by the National Labor Relations Board as the exclusive representative of 338 DECISIONS OF NATIONAL LABOR RELATIONS BOARD employees at the Tracy plant of the respondent cannery ; Pi ovuled. however, that nothing hereon shall be construed as requiring the respondents to vary or abandon those provisions of the said agreement or any extension, renewal, or modification thereof, supplement thereto, or of any superseding contract, which establish wages, hours of employment, rates of pay, seniority, or other sub- stantive features of the relationship between the respondent cannery and em- ployees at its Tracy plant, or to prejudice the assertion by the employees of any rights they may have under such agreement ; (c) Interfering with, restraining, or coercing employees of the respondent cannery at its Tracy plant in the exercise of their rights 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 as guaranteed in Section 7 of the Act, by according recognition to a labor organization or giving effect to any contract with such an organization at a time when the said employees are insufficient in number to constitute an appropriate unit for collective bargaining, and/or at a time when a question concerning representation exists affecting such employees ; (d) Encouraging membership in the California State Council of Cannery Unions, and Cannery Workers Union, Local No. 601 of the International Brother- hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, both affiliated with the American Federation of Labor, or any other labor organiza- tion, and/or discouraging membership in the Food, Tobacco, Agricultural and Allied Workers Union of America, CIO, or any other labor organization, on the part of employees of the respondent cannery at its Tracy plant, by discrimination in regard to the terms or conditions of employment affecting any of the said employees pursuant to a contract executed at a time when the said employees aye insufficient in number to constitute an appropriate unit for collective bar- gaining, and/or at a time when a question concerning representation exists affecting such 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 California State Council of Cannery Unions, and Cannery Workers Union, Local No 601 of the Inter- national Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, both affiliated with the American Federation of Labor, as the exclusive representative of any employees of the respondent cannery at its Tracy plant for the purposes of collective bargaining with respect to rates of pay, wages, hours of employment, and other conditions of employment, unless and until the 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 the plant of the respondent cannery in Tracy. California, copies of the notice attached hereto marked "Appendix A" Copies of said notice, to be furnished by the Regional Director for the Twentieth Region, shall, after being duly signed by the respondents' representatives, be posted by the respondent cannery immediately upon receipt thereof, and maintained by it for sixty (60) consecutive clays thereafter, in conspicuous places, including all places where notices to employees are customarily posted Reasonable steps shall be taken by the respondent cannery to insure that the said notices are not altered, defaced or covered by any other material ; (c) File with the Regional Director for the Twentieth Region on or before ion (10) days from the receipt of this Intermediate Report, a report in writing H. J. HEINZ COMPANY 339 setting forth in detail the manner and form in which the respondents have com- plied with the foregoing recommendations. It is further recommended that, unless odor before ten (10) days from the receipt of this Intermediate Report the respondents notify the 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 33 of Article II of the Rules and Regulations of the National Labor Relations Board, Series 3, as amended, effective November 27, 1945, any party or counsel for the Board may, within fifteen-(15) days from the date of the entry of the order transferring the case to the Board, pursuant to Section 32 of Article II of the said Rules and Regulations, file with the Board, Itochambeau 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 pait of the record or proceeding (including rulings upon all notions 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- inent of exceptions and/or brief, the party or counsel for the Board filing the same shall serve a copy thereof upon each of the other parties and shall file a copy with the Regional Director. As further provided in the 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. Any party desiring to submit a brief in support of the Intermediate Report shall do so within fifteen (15) days from the (late of the entry of the order transferring the case to the Board, by filing with the Board an original and four copies thereof, and by immediately serving a copy thereof upon each of the other parties and the Regional Director Dated July 11, 1946 APPENDIX A NOTICE To ALL EMPLOYEES MAURICE MILLER, Trial Examiner. Pursuant to the recommendations of a,Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, we hereby notify our employees that : WE WILL NOT recognize the California State Council of Cannery Unions and/or Cannery Workers Union, Local No 601 of the International Brother- hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, affiliated with the American Federation of Labor, as the exclusive representa- tive of employees at the Tracy plant of the H. J Heinz Company for the purposes of collective bargaining, unless and until the said organizations, or either of them, shall have been certified by the Board as the exclusive representative of such employees WE WILL NOT give effect to our agreement of December 21, 1945 with the California State Council of Cannery Unions and Cannery Workers Union, Local No 601 of the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, affiliated with the American Federa- tion of Labor, or to any extension, renewal, or modification thereof, supple- ment thereto, or to any superseding contract with these labor organizations or any other labor organization unless and until the said organization or 340 DECISIONS OF NATIONAL LABOR RELATIONS BOARD organizations shall have been certified by the Board as the exclusive reps e- sentative of employees at the Tracy plant of the H. J. Heinz Company WE WILL NOT interfere with, restrain, or coerce employees at the Tracy plant of the H. J. Heinz Company in the exercise of their right to self-organi- zation, to form labor organizations, to join or assist Food, Tobacco, Agi icul- tural and Allied Workers Union of America, CIO, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purposes of collective bargaining or other mutual aid or protection, by according recognition to a labor organization or giving effect to any contract with such an organi- zation at a time when the said employees are insufficient in number to constitute an appropriate unit for collective bargaining, and/or at a time when a question concerning representation exists affecting such employees. All employees at the Tracy plant of the H. J. Heinz Company are free to become or remain members of the Food, Tobacco, Agricultural, and Allied Workers Union of America, CIO, or any other labor organization. We will not discriminate in regard to any term or condition of employment affecting any of the said employees because of membership in or activities on behalf of any such labor organization. H. J HEINZ COMPANY ' Employer. By --------------------------------------------------- (Representative ) ( Title) CALIFORNIA PROCESSORS AN[) GROwERs,-INC. By --------------------------------------------------- (Representative) (Title) Dated -------------------- This notice must remain posted for 60 clays from the date hereof, and must not be altered, defaced, or covered by any other material.