The Ellis Canning Co.

In the Matter of N. L. LOIN AND D. M. LOIN, A PARTNERSHIP D/B/A THE ELLIS CANNING COMPANY AND THE ELLIS CANNING COMPANY, A COR- PORATION and WAREHOUSING, PROCESSING & DISTRIBUTING UNION No. 21 (, AFFILIATED WITH INTERNATIONAL LONGSHOREMEN'S & WARE- HOUSEMEN^S UNION, C. I. O. Case Nos. 17-R-1339 and 17-C-1383.-Decided February 11, 1948 Mr. Robert Fousele and Mis Charlotte Anschuetz, for the Board. Rothgerber and Appel, by illessrs. Ira C. Rothgerber and William S. Powers, of Denver, Colo., for the respondents. Messrs. William Ii. ,Ris and Louis Levin, of Denver, Colo., for the CIO. Joseph A. Padway, by Messrs. Robert A. Wilson, of Washington, D. C., and Philip Hornbein, Jr., of Denver, Colo., for the AFL. DECISION AND ORDER On December 6, 1946, Trial Examiner T. B. Smoot issued his Inter- mediate Report in the above-entitled proceeding, finding that the re- spondents had not engaged in unfair labor practices and recommending that the complaint be dismissed, as set forth in the copy of the Inter- mediate Report attached hereto. The Trial Examiner further found that a number of the challenged ballots cast in the representation elec- tion should be opened and counted and that the challenges to other ballots should be sustained. Thereafter, the CIO and the AFL filed exceptions to the Intermediate Report, and all parties filed briefs. On October 28, 1947, the Board heard oral argument at Washington, D. C. The AFL and the respondents, but not the CIO, appeared and participated in the oral argument. Subsequent to the oral argument, the Board requested all parties to submit supplemental briefs discussing the meaning of the closed-shop provision of the bargaining contract between the respondent and the AFL. Only the AFL and the respondents complied with the request and submitted such briefs. 76 N. L. R. B, No. 13. 99 781902-48-vol. 76-8 100 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Board has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the In- termediate Report, the exceptions of the AFL and the CIO, the briefs of all parties, the oral argument, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner, with the exceptions and modifications discussed herein? 1. The present case is a consolidation of two separate proceedings- a representation proceeding and an unfair labor practice proceed- ing. The representation proceeding was initiated by Warehousing, Processing & Distributing Union No. 217, affiliated with International Longshoremen's & Warehousemen's Union, CIO, which has not com- plied with Section 9 (f) and (Ii) of the amended Act. In view of the CIO's failure to comply, we shall sever the cases and dismiss the CIO's petition, without considering the merits of the Trial Examiner's findings as to the disposition of the challenged ballots.2 2. We agree with the Trial Examiner's finding that the respondents did not violate the Act by requiring their employees to join the AFL on and after April 10, 1946, as a condition of their continued employ- ment, except as indicated hereinafter. The exception relates to 11 employees, a relatively small proportion of the total. The "closed-shop" clause of the contract provided: "All regular em- ployees, except those excluded in Article 1, properly coming under the jurisdiction of the Union, shall be members of the Union. Where new employees not members of the Union are used, they shall make applica- tion to become members of the Union after thirty (30) working days of employment with the Company." [Italics supplied.] Of the com- plainants who were discharged because they ref used to join the AFL, 11 had less than "thirty (30) working clays of employment with the Com- pany." 3 Neither the respondents nor the AFL distinguished be- 3 Section 8 (1) and (3) of the National Laboi Relations Act, consnleed by the Trial Examiner, has been continued in the Act as amended by the Labor Management Relanone Act, 1947, as Section 8 (a) 1 and 8 (a) (3), except that the proviso to former Section 8 (3) has been modified in a manner not material to the consideration of the present case 3 The fact that the CIO has not complied with Section 9 (f) and (L) of the amended Act in no way impairs the Board's power to adjudicate the question of whether the emplovees involved in this proceeding were discinmmatoiily dischaiged in violation of Section 8 (3) of the Act. Matter of Marshall and Bruce Company, 75 N. L. R. B. 90 sblugene Antuna, Jr, Thomas Chapman, Prudencia Chavez, Timidad Gallegos, Esther Marez, Faustina Moya, Eva Rodriguez, Juan Roybal, Jennie Sanchez, Ernest J. Trujillo, and Louis R Yanez Of these, Antuna, Jr., Moya, Rodriguez, Chapman, and Roybal personally appeared in response to.the respondent 's letter asking them to ictuin to work, but refused to join the AFL and, therefore, were not icemploied. The others, Chavez, Gallegos, Marez, Sanchez, Trujillo, and Yanez, did not personally apply for work They received notice of the reopening of the plant but did not report because they were informed by the employees who had iepoited that they would have to join the AFL to resume THE ELLIS CANNING COMPANY 101 tween the employees who had had more than, and those who had had less than, 30 working days of employment with the respondent, in requiring employees to join the AFL. All employees, without dis- tinction, who applied for work after the reopening of the plant were handed a copy of the "closed-shop" clause, and then were advised that under the contract they would have to join the AFL as a condition of employment. Those who refused were not reemployed and were directed to leave the plant, which they did. As to those who had had "30 working days of employment with the Company," this action was consistent with the law. As to the others, it was not. Generally for an employer to require an employee to join a particular union is, of course, discriminatory. It may, however, be lawful, pro- vided it is done pursuant to a collective bargaining contract which meets the requirements of the proviso to Section 8 (3) of the Act. When such discrunination is not justified by the terms of a contract, it is unlawful. In the present case, employees with less than 30 working days of employment were not obligated to join the AFL, under the very 1crnls of the "closed-shop" clause. The respondents, therefore, had no right to insist that they join that labor organization as a condition of employment. Hence, in imposing this requirement on these particular employees, and in discharging them because they refused to comply, the respondents discriminated against them in violation of Section 8 (3) ,(,f the Act.' The respondents contend that none of the complainants were dis- ch;uged, but that they quit rather than accept the proffered employ- ment. The record does not support this contention. All parties stipu- l.;ted at the hearing that the employees who reported for work after the reopening of the plant were "advised that under the contract be- tween the Company and the Teamsters, they would be required to join the Teamsters as a condition of employment"; that those persons who refused to join the AFL were addressed by an official of the AFL, who invited them to join; but that "they refused and were not employed by the Company and were directed to leave the plant and they left.", It is clear, and we find, that the complainants did not quit, but were dis- charged because they refused to join the AFL.' 'cork This they were unwilling to do. It is apparent that had these non-reporting employees actually appeared at the respondent's plant, they would have received the sane treatment as those who did appear Under these circumstances, we find that a personal application for work 'was not necessary to establish the respondent's responsibility for the termination of the employment of these non-reporting employees See Matter of Nevada Consolidated Cooper Corporation, 26 N L. R. B 11S2, enf'd 310 U S 105. 4 Cf Matter of The Iron Fireman Manufacturing Company, 69 N. L. R. B. 19; Matter of G IV Hume Company, 71 N L It B. 533 ; Matter of Capolino Packing Corporation, 71 N I. R B 1003 The Al'L had no doubt that these employees were discharged. See the AFL' s brief to the Board, pp 3, 4, 5, 11 102 DECISIONS OF NATIONAL LABOR RELATIONS BOARD We find, therefore, that by discharging on or about April 10, 1946, the employees whose names are listed in "Appendix A'' attached hereto, and by thereafter failing to reinstate them, the respondents discrimina- ted in regard to their hire and tenure of employment, thereby encourag- ing membership in the AFL and discouraging membership in the CIO, in violation of Section 8 (3) of the Act , and interfered with, restrained, and coerced its employees in theexe"rcise of the rights guaranteed in Sec- tion 7 of the Act, in violation of Section 8 (1) of the Act. THE REMEDY Having found that the respondents have engaged in unfair labor practices, we shall order them to cease and desist therefrom, and to take certain affirmative action necessary to effectuate the policies of the Act. We shall order the respondents to offer the discriminatorily dis- charged employees immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority or other rights and privileges, and to make whole these employees for any loss of pay they may have suffered by reason of the discrimination against them, by payment to each of them of a sum of money equal to the amount which he or she normally would have earned as wages dur- ing the period from the date of his or her discharge to the date of the is- suance of the Intermediate Report herein, and during the period from the date of our Decision and Order herein to the date of the respond- ents' offer of reinstatement,6 less his or her earnings,7 if any, during said period. The respondents' unlawful conduct appears to have been an isolated occurrence, and it does not indicate any general hostility to the purposes of the Act or any likelihood of the commission of other unfair labor practices in the future. Accordingly, there is no need for, and we shall not enter, a broad cease and desist order. ORDER Upon the entire record in the case and pursuant to Section 10 (c) of the National Labor Relations Act, as amended, the National Labor O The period from the date of issuance of the Intermediate Report to the date of the Decision and Order herein is excluded in computing the back -pap award because we have reversed , as to those 11 einploy'ees, the Trial Examiners finding that the respondents did not violate the Act in discharging the complainants Matter of D L Bruce Conipanii, 75 N L It B 522 ; Matter of Colqate- 1'ahnol^i e-Peet Company, 70 N L It r. 12(12 7Bc "net-earrings" is meant earnings less expenses , such as foi tiansportation, room, and boaid , incurred by an employee in connection with obtaining; woik 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 employinert eisewlieie See Biome, of Cfrossett Lumber Company, S N I. R B 440 Monies received for work perforated upon Fedeial , State, county , municipal , or other work relief protects shall be consideied as earnings See Republic Steel Corporation v 11' L R B , 311 U S 7 THE ELLIS CANNING COMPANY 103 Relations Board hereby orders that the respondents, N. L. Loin and D. M. Loin, a partnership doing business as The Ellis Canning Com- pany, and The Ellis Canning Company, a Corporation, Denver, Colo- zado, and their officers, agents, successors, and assigns shall : 1. Cease and desist from : (a) Discouraging membership in Warehousing, Processing & Dis- tributing Union No. 217, affiliated with International Longshore- men's & Warehousemen's Union, C. I. 0., or in any other labor organ- ization of their employees, or encouraging membership in Produce Drivers, Helpers and Warehousemen, Local Union No. 452 of Interna- tional Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, A. F. L., or in 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 or tenure of employment, or any term or condition of their employment ; (b) Engaging in any like or related acts or conduct interfering with, restraining, or coercing its employees in the exercise of the right to self- organization, to form labor organizations, to join or assist Warehous- ing, Processing & Distributing Union No. 217, affiliated with Interna- tional Longshoremen's & Warehousemen's Union, C. I. 0., or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the pur- poses 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) Offer Eugene Antuna, Jr., Prudencia Chavez, Trinidad Galle- gos, Esther Marez, Faustina Moya, Jennie Sanchez, Ernest J. Trujillo, and Louis R. Yanez immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their senior- ity or other rights and privileges; (b) Make whole the aforesaid employees for any loss of pay they may have suffered because of their discriminatory discharge, by pay- ment to each of them of a sum of money equal to the amount which he or she normally would have earned as wages during the period (1) from April 10, 1946, the date of the discharge, to December 6, 1946, the date of the Intermediate Report herein, and (2) from the date of our De- cision and Order herein to the date of the respondents' offer of rein- statement, less his or her net earnings, if any, during the same periods; 104 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (c) Post at its plant in Denver, Colorado, copies of the notice at- tached hereto and marked "Appendix A." 8 Copies of such notice, to be furnished by the Regional Director for the Seventeenth Region, shall, after being duly signed by an authorized representative of the respondents, 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 em- ployees are customarily posted. Reasonable steps shall be taken by the respondents to insure that said notice is not altered, defaced, or cov- ered by any other material, (d) Notify the Regional Director for the Seventeenth Region in writing, within ten (10) days from the date of this Order, what steps the respondents have taken to comply herewith. IT IS HEREBY FURTHER ORDERED that the complaint be, and it hereby is, dismissed, insofar as it alleges that the remaining employees listed in "Exhibit A" attached to the complaint were discriminatorily dis- charged. AND IT IS IIEREI.Y FTTRTHEIm ORDFPLD that Cases Nos. 17-R-1339 and 17-C-1383, be, and they hereby are, severed. AND IT IS HEREBY FURTHER ORDERED that the petition for investigation and certification of representatives of employees of N. L. Koin and D. M. Loin, a partnership doing business as The Ellis Canning Com- pany, and of The, Ellis Canning Company, a Corporation, Denver, Colorado, filed in Case No. 17-R-1339 by Warehousing, Processing & Distributing Union No. 217, affiliated with International Longshore- men's & Warehousemen's Union, C. I. O., be, and it hereby is, dismissed. 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 discourage membership in WAREHOUSING, PROCESS- ING & DISTRIBUTING UNION No. 217. AFFILIATED WITH INTERNA- TIONAL LONGSHOREMEN'S & WAREHOUSEMEN'S UNION, C. I. 0., or any other labor organization of our employees, or encourage inenl- bershlp in PRODUCE DRIVERS, HELPERS AND WAREHOUSEMEN, LOCAL UNION No. 452 OF THE INTERNATIONAL BROTHERHOOD OF TEAMSTERS, In the event that this Oider is enforced by decree of a Circuit Count 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" THE ELLIS CANNING COMPANY 105 CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA, A. F. L., or any other labor organization of our employees, by discharging or refusing to reinstate any of our employees, or in any other manner discriminating in regard to their hire or tenure of employ- ment, or any term or condition of their employment, except inso- far as said conduct is protected by the proviso to Section 8 (3) of the Act or Section 8 (a) (3) of the amended Act. AVE WILL NOT engage in any like or related acts or conduct inter- fering With, restraining, or coercing our employees in the.exercise of their right to self-organization, to form labor organizations, to join or assist the above-named 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. AVE WILL OFFER to the employees named below immediate and full reinstatement to their former or substantially equivalent positions without prejudice to any seniority or other rights or privileges previously enjoyed, and make them whole for any loss of pay suffered as a result of the discrimination practiced against them. Eugene Antuna, Jr. Faustina Moya Prudencia Chavez Jennie Sanchez Trinidad Gallegos Ernest J. Trujillo Esther Marez Louis R. Yanez N. L. KOIN AND D . M. KOIN, A PARTNERSHIP D/B/A THE ELLIS CANNING COMPANY AND THE ELLIS CANNING COMPANY, A CORPORATION. Employer. By ------------------------------ (Reilesentative ) ( Title) Dated -------------------- This notice must remain posted for GO clays from the date hereof, and must not be altered , defaced, or covered by any other material. INTERMEDIATE REPORT Mr. Robert Fousek and Miss Chas lotto Anschuetz, for the Board Rothgerber and Appel, by Messrs. Ira C. Rothgerber and William S Powers, for the respondent. Messrs. William K. Rts and Louis Levin, for the CIO Joseph A. Padwal/, by Messrs. Robert A Wilson and Philip Hornbe,n, Jr., for the AFL 106 DEC=SIGNS CF NATIONAL LABOR RELATIONS BOARD STATEMENT OF THE CASE Upon an amended petition duly filed by Warehousing, Processing and Dis- tributing Union No 217, affiliated with International Longshoremen's and Ware- housemen's Union, C. I. 0., herein called the CIO, alleging that a question affecting commerce had arisen concerning the representation of employees of N. L. Koin and D. M Koin, a partnership, d/b/a The Ellis Canning Company, Denver, Colorado, and The Ellis Canning Company, a corporation, herein called the re- spondent, the National Labor Relations Board, herein called the Board, provided for a hearing on due notice before a Trial Examiner on March 12 and 13, 1946, which hearing was duly held. At that hearing the Produce Drivers, Helpers and Warehousemen Local Union 452, of the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, affiliated with the AFL, herein called the AFL, appeared and participated Thereafter, on April 16, 1946, the Board issued its Decision and Direction of Election ordering that an election by secret ballot be conducted among the production and maintenance employees of the company,- excluding office and clerical employees, janitors, fire- men, watchmen, stationery engineers and all or any other supervisory employees with authority to hire, promote, discharge, discipline, or otherwise effect changes in the status of employees or effectively recommend such action, to determine whether the employees desired to be represented by the CIO or the AFL for the purpose of collective bargaining, or by neither. On May 7, 1946, the election was duly held with only 17 of the 81 ballots being counted as 64 votes were challenged. The Board having ordered that a hearing be conducted for the pur- pose of determining the eligibility of the 64 employees whose ballots were chal- lenged in the election, on July 24, 1946, issued an Order Consolidating Cases Nos. 17-11-1339 and 17-C-1383; subsequently on August 27, 1946, the Board issued a Corrected Order Consolidating Cases and on September 3, 1946, issued an Order Revoking Orders which left Cases Nos 17-R-1339 and 17-C-1383 consolidated. On September 9, 1946, the CIO filed a fourth amended charge in Case No. 17-C-1383 alleging the violation of Section 8 (1) and (3) of the Act. Pursuant to the aforesaid charge the Board, by the Regional Director for the Seventeenth Region (Kansas City, Missouri), issued its complaint dated October 2, 1946, alleging that the respondent has engaged in and was engaging in unfair labor practices affecting commerce within the meaning of Section 8 (1) and (3) and Section 2 (6) and (7) of the National Labor Relations Act, 49 Stat 449, herein called the Act Copies of the complaint and the charge and a notice of hearing setting forth that the hearing would be held for the purpose of deter- mining the eligibility of the employees whose ballots were challenged in the election conducted in Case No 17-R-1339 on May 7, 1946, and for the further purpose of taking testimony or other evidence on the allegations set forth in the complaint, were duly served upon the respondent, the CIO, and the AFL. With respect to the unfair labor practices, the complaint alleged in substance that after closing down its plant in February 1946, the respondent upon reopen- ing the plant on April 10, 1946, required membership in the AFL as a condition of employment in the plant and refused to reemploy some 51 named employees because of their membership in and activity on behalf of the CIO and because of their refusal to join the AFL On October 12, the respondent filed a Motion to Dismiss Complaint and an Answer to Complaint. In its answer it admitted several allegations of the con- THE ELLIS CANNING COMPANY 107 plaint in respect to the nature and operations of its business and alleged that, it being under a closed-shop contract with the AFL on April 10, 1946, and for several years prior thereto, the refusal to reemploy on that date the 51 employees named in the complaint was not an unfair labor practice, and otherwise generally denied committing any unfair labor practices. Pursuant to notice a hearing was held at Denver, Colorado, on October 17 and 18, 1946, before the undersigned, T. B Smoot, the Trial Examiner duly desig- nated by the Chief Trial Examiner. The Board, the respondent, the AFL, and the CIO were represented by counsel, all of whom participated, in the hearing Full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing on the issues was afforded all parties. At the open- ing of the hearing the AFL's motion to intervene was granted, and it then joined in the respondent's Motion to Dismiss Complaint. The said motion alleged that the complaint should be dismissed on the ground that use of funds for the hearing was contrary to the limitation contained in the 1947 National Labor Relations Board Appropriation Act, as the respondent and the AFL had entered into a contract dated August 10, 1945, which had been in existence over a period of 3 months without complaint being filed by employees of the respondent. This motion was denied by the undersigned. At the conclusion of the hearing counsel renewed its motion to dismiss the complaint and the AFL again joined in the motion. Ruling was reserved by the undersigned and is now disposed of as shown in footnote 12, infra. The Board moved to conform the pleadings to the proof in respect to formal matters. This motion was granted without objection The parties waived the privilege of arguing orally before the Trial Examiner and all parties were given until October 28, and subsequently to November 4, 1946, to file briefs, proposed find- ings and conclusions. Briefs have been received from the CIO, the AFL, the respondent and counsel for the Board while "Suggested Findings" were incorpo- rated in the AFL brief. On the entire record in the case, and from his observation of the witnesses, the undersigned makes the following: FINDINGS' OF FACT 1. TIIE BUSINESS OF THE RESPONDENT The Ellis Canning Company was a partnership consisting of N L. Loin and D M. Koin, existing by virtue of and pursuant to the laws of the State of Colorado, with its principal office and plant in Denver, Colorado, where it was engaged in the business of processing and producing food stuffs The partnership was dis- solved and was succeeded in business on April 15, 1046, by The Ellis Canning Company, a•Colorado corporation During the year 1945 the partnership pur- chased produce and other raw materials valued in excess of $500,000, approxi- mately 70 percent of which was produced and transported to the plant from outside the State. During the same period approximately 60 percent of the finished products of the partnership amounting in value to over $300,000 was sold and transported to points outside the State of Colorado. At all times since April 15, 1946, the corporation has carried on the business in substantially the some manner. The undersigned finds that respondent is engaged in commerce within the meaning of the Act. 108 DECISIONS OF NATIONAL LABOR RELATIONS BOARD II. THE ORGANIZATIONS INVOLVED Warehousing, Processing & Distributing Union No. 217, is a labor organization, affiliated with International Longshoremen's and Warehousemen's Union, C. I. 0., admitting to membership employees of the respondent Produce Drivers, Helpers, and Warehousemen's Union, Local Union No. 452, of the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, is a labor organization, affiliated with the American Federa- tion of Labor, admitting to membership employees of the respondent. III THE ELIGIBILITY OF THE EMPLOYEES WHOSE BALLOTS WERE CHALLENGED The ballots of 64 employees were challenged in the election held by the Board on May 7, 1946, and 491 of these were challenged on the ground that they were no longer employees of the company and are among the 512 persons who it is alleged in the complaint were discriminatorily refused reemployment on April 10, 1946, because of their activities in the CIO and their refusal to join the AFL. Inasmuch as it is found in Section IV hereinafter that said employees were not refused reemployment in violation of Section 8 (3) of the Act, it is herewith determined by the undersigned that the 47 employees named in "Exhibit A" attached hereto were not eligible to vote in the election. The Board's Order in Case No 17-11-1339 dated April 16, 1946, provided that an election should be held among employees in the unit found appropriate therein who were employed during the pay-roll period immediately preceding the said Decision and Direction of Election "including employees who did not work during said pay-roll period because they were ill or on vacation or temporarily laid off . . . but excluding those employees who have quit or have been dis- charged for cause, or have been reemployed or reinstated prior to the date of the election." The pay-roll date immediately preceding the (late of the Direction of Election was April 10, 1946. Robert Crispen was laid off with all the other employees in February 1946, and on April 8 or 10th, was sent a copy of the letter which went to all employees of the company on the pay-roll when the lay-off occurred requesting him to return to work He did not return until Aprd- 16th, at which time he was reemployed and assigned to the same work he had been doing prior to the lay-off. His vote was challenged by company representatives who alleged that he had been reem- ployed as a new employee on April 16 and therefore was not on the pay roll for the week ending April 10th The letter recalling the employees to work dated April S, was mailed either the Sth or 10th and inasmuch as Crispen vhs imme- diately reemployed the date lie applied, which was only approximately a week- after the letter was mailed and, as his own job was still open, the undersigned finds that Crispen had merely been temporarily laid off and it is found that he was eligible to vote. Joe E. Gonzalez was laid off with all the other employees in the plant in Febru- ary - He also was sent a letter on April Sth or 10th and returned to work about a week or 10 days later, when lie was reemployed and assigned the same work lie had been doing It is found by the undersigned that Gonzalez also was temporarily laid off and was eligible to vote 1 The names of two of these, Nicholas Sanchez and Joe Munoz , were stricken on motion of counsel foi the Boaid Two employees, Jmui Itovbal and Jose Castros, ale named in the complaint but did not attempt to vote and are, of couise, not listed as hav ing been challenged THE ELLIS CANNING COMPANY 109 Company representatives challenged the vote of Torribeo Talmadge on the ground that he had been discharged prior to April 10th, and it was shown at the ]searing that on January 25, 1946, he had been discharged for stealing. It is found that lie was not eligible to vote. The votes of the following employees : Toby Espinosa, Louis Gonzalez, Grace Lucero, Herman Lucero, Benny Valdez, Gilbert Pacheco, anal Manuel Aragon, were challenged by the CIO observers on the ground that these employees-were not employed until after the pay-roll period ending April 10th The company's records produced at the hearing disclose that these employees were employed on either April 12 or 15, 1946. It is clear and the undersigned finds that they were not employees during the pay-roll period ending April 10th and were not eligible to vote. The vote of Carpio Gomez was challenged by company observers, on the ground that lie had terminated his employment. The evidence shows that he was laid off in February with the other employees, that he was reemployed on April 9, and that on April 13th, he notified the company that he was going to the hospital. His employment was thereupon terminated by the company and he has never been reemployed. The undersigned finds that lie is an employee who quit and was not rehired or reinstated prior to the date of the election and was not eligible to vote. The vote of Manuel Gaiton was challenged by company observers on the ground that his employment had been terminated by discharge on February 9. The evidence shows that he was discharged February 9, for refusing to do what he was told and was never reemployed and was not sent the letter of April 8 to return to work, as were all other employees. The undersigned finds that he was not eligible to vote. Marcus Floris, Fred Romero, and Dominic Grisenti were challenged by the CIO on the ground that they were supervisors Their cases will be taken up indi- vidually.3 Floris worked in the shipping department with the classification of "assistant shipping clerk " Employees who worked with him were classified as "shipping department-general labor" and Floris showed 10 or 12 of them how to do the work His superior was the shipping clerk, who was the shipping department supervisor over all the 20 to 25 employees in the department. Floris received an hourly rate of 75 cents an hour while the other employees received 70 cents an hour and the shipping clerk received 90 cents. Floris had no authority to make recom- mendations affecting the status of the employees. The undersigned finds that Marcus Floris does not come within the definition of supervisory employee as set forth in the appropriate unit found by the Board and was eligible to vote Fred Romero was a machine operator receiving an hourly rate ok 75 cents whose duties were taking care of his machine, upon which six girls packed tamales and carried away jars of tamales Romero did not tell these girls what to do although they worked on his machine and received 5 cents an hour less than he did He gave no instructions nor made recommendations affecting the status of any employees, and his immediate superior was the supervisor of the department in which he worked. The undersigned finds that Romero was not a supervisory employee within the definition of the appropriate unit set forth by the Board and be was eligible to vote. 3 All the testimony regarding these three employees is from the testimony of Max A. /chin er , manager of respondent , who was called as a witness by the Board 110 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Dominic Grisenti was classified by respondent as "boning room snperviso•" with an hourly rate of $1 10 an hour The regular boners received $100 an hour. Grisenti's duties were those of a working boss in charge of a department who kept the records of the department, advised six employees how to do the work, and had the power to recommend disciplinary action in regard to those employees, and his recommendations would be taken into consideration by the management. It is found that Dominic Grisenti was among those supervisory employees with authority to hire, promote, discharge, discipline, or otherwise effect changes in the status of employees or effectively recommend such action, and was not eligible to vote. It is found that of the 64 persons whose votes were challenged at the election of May 7, 1946, the eligibility of 2, Nicholas Sanchez and Joe Munoz, is not here determined due to the granting without objection of the motion of Boaid's counsel to dismiss as to them ; that the 47 named in "Exhibit A" attached hereto were not eligible to vote; that Torribeo Talmadge, Toby Espinosa, Louis Gon- zalez, Grace Lucero, Herman Lucero, Benny Valdez, Gilbert Pacheco, Manuel Aragon, Carpio Gomnez, Manuel Gannon, and Dominic Grisenti were not eligible to vote; that Robert Ci aspen, Joe Gonzalez, Marcus Floris, and Fred Romero were eligible to vote IV. '111E ALLEGED UNFAIR LABOR PRACTICES A Chronology of events After a petition had been filed by the AFL in the fall of 1941, an agreement for a cross-check was entered into by agents of the Board, the AFL, and respond- ent, and on December S, 1941, the Regional Director of the Board certified that the AFL represented a majority of the employees of the respondent in an appro- priate unit. On December 16, 1941, the respondent and the AFL entered into a contract and the contract was thereafter renewed on the termination date, or a new contract was entered into, for the next seNeral years. All of these contracts contained a closed-shop provision Negotiations for a new contract to succeed the one terminating July 1, 1944, continued until February 1945. During these negotiations, on November 28, 1944, an oral agreement was entered into regard- ing the closed-shop provision On November 29, 1944, this oral agreement was confirmed by letter from the AFL to respondent and again on January 22, 1945, a second letter identical with the first except for the date thereon and a clerical error, was sent by the AFL to respondent These letters were as follows : DEAR SIR. Concerning the renewal of the Labor Agreement between your Company and this Union, and with reference to the Union Shop portion of this agreement, which specifies that unless an employee is paid up and in good standing in the Union, you are obliged to discharge such an employee I wish to confirm by this letter my oral agi cement made in the presence of James P. Logan and Mr. Halligan on November 28, 1944, to the effect this Union NN ill not insist on compliance contemning this Article unless the Union can replace the person it asks to be discharged by a person of like gn1lifica- tions This agreement shall be for the duration of the 1944-1946 contract. Very truly yours, D J. RYAN. Secreta) y-Treasarei. Local Unroir No 452. On February 1, 1945, the AFL and respondent entered into a contract which stated it was "in effect" from July 11, 1944, to July 1, 1946 This contract con- THE ELLIS CANNING COMPANY 111 tamed the usual closed-shop provision' On August 10, 1945, the AFL and re- spondent entered into an "Amended Agreement" which stated that' this amended agreeient shall be in full force and effect from the 1st day of July 1945 and shall remain in full force and effect until the 1st day of July 1946 and shall be automatically renewed from year to year thereafter unless terminated or changed" pursuant to stated conditions. The same closed-shop provision was included in this contract. On January 12, 1946, the CIO started organizing respondent's employees. A week or two prior to January 19, respondent was approached by the AFL "to get the employees" to join the AFL pursuant to the closed-shop provision of the contract. On January 19, 1946, the AFL notified respondent by letter that the closed-shop provision was to be enforced and all employees were to join within 30 days pursuant to the contract. On January 21, the CIO filed a petition with the Board stating it represented a majority of respondent's employees and on the same date respondent was notified that the CIO claimed to represent a majority of the employees Just prior to or just after January 21, T V. Burke, a represent- ative of the AFL, requested and received permission from respondent to address the employees. Burke was introduced to the employees by D. M Koin, president of respondent, who then left the meeting and Burke told the employees the AFL contract would be enforced and that all employees would have 30 days in which to join the AFL. This meeting was (Turing, working hours The CIO advised respond- ent it considered this meeting an unfair labor practice and demanded the same privilege' Respondent replied that thereafter there would be no organizing allowed in the plant by any organization. Shortly after January 21, probably the next day, the AFL requested respondent to lay oft the CIO members "for not complying with the contract." The respond- ent replied that it "couldn't immediately comply until [it] checked into the possibility of unfair labor practices." The AFL then put a picket line around the plant which remained until the plant closed. The plant continued to operate until February 13, when one half of its production line was shut clown and by February 23 the plant was completely closed except for a few maintenance employees. The AFL on February 13, sent the following letter to respondent : We wish to call your attention to Article II of the agreement between your Company and Local Union No 452 signed under (late of August 10, 1945, as it pertains to employees as to their Union affiliation which we find the Company is in error The agreement states that all employees must make application and become members of the Union within thirty (30) days from date of employment. 4 The closed-shop piovision was: All regular employees, except those excluded in Article 1, properly coming under the jurisdiction of the Union, shall be members of the Union Where new employees not mem- bers of the Union are used, they shall make application to become members of the Union after thirty (30) working days of employment with the company The Union agrees that all employees of the Company subject to membership in the Union, as outlined in Article 1, now working or hereafter hired who are not members of the Union shall , upon making application and offering to qualify for membership in the Union, be promptly accepted to membership without prejudice or discrimination, unless the applicant is specifically denied membership in the Union by the provisions of the national constitution of the International Bi of herhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America " The complaint did not allege this incident to be an unfair labor practice but in their briefs counsel for the Board and the CIO claim this to have constituted an unfair labor practice The undersigned finds that allowing a representative of the contracting union to address the employees under the circumstances shown herein does not constitute a violation of Section 8 (1) of the Act 112 DECISIONS OF NATIONAL LABOR RELATIONS BOARD However the Company has not enforced this portion of the agreement, due to conditions of war and shortage of help, of which the Union was agreeable. At this time we are in a position to furnish you with the required number of employees needed to carry on the operation of your business, provided how- ever, that your present employees to join the Union as set forth in the agree- ment. Unless the Company stttctly observes this contract, we will be forced to take official action. The respondent remained inoperative during the remainder of February and March. On March 12 and 13 , a hearing was held in Case No. 17-R-1339 based on the CIO petition of January 21, with the AFL, the CIO, and respondent all present and participating. On April 8, respondent sent letters to all its 99 employees who were on its pay roll in February who had not quit or been discharged for cause, iequesting them to return to work On April 10, 47 employees reported for work. Either Max Zelhinger , plant manager , or AFL representatives , who were in the office, told each employee that the closed-shop provision of the AFL contract was to be enforced and the AFL representatives requested each employee reporting for work to join the AFL. Thirty -two employees refused to join the AFL and were not reemployed . Seventeen others were advised by some of the 32 what was happening and did not report for whok because they did not wish to join the AFL. Respondent gradually obtained sufficient employees to operate the plant. On April 16, the Board decision in Cake No. 17-R-1331) was rendered which ordered an election to be held within 30 days The AFL had contended its con- tract with respondent was a b ar to the representation proceeding , while the CIO contended the contract was not a bar because the AFL was no longer functioning effectively as the bargaining representative of the employees. The Board held as to these contentions as follows: Although there may be a considerable group of employees who are dissatis- fied with the representation accorded them by the Teamsters, the recoil discloses that the Teamsters has not ceased to function as the bargaining representative of the Company's employees. It has taken up grievances with the Company and secured wage adjustments for the employees. Al- though the Teamsters agreed not to invoke the closed-shop provision of its contract for the period of the war, it appears that it did so because of the labor shortage and its pledge of non-stoppage of work. We are of the opinion that the Teamsters is still a functioning labor organization capable of admm- isteiing its contracts However, inasmuch as the contract niay be terninated in less than 2 months upon notice by either party thereto, we find that it is not a bar to a determination of representatives within the next thirty (30) days pursuant to our usual Direction of Election. However, any certification of representatives which we may issue as a result of the election shall be for the purpose of designating :f representative to negotiate a new contract to succeed the contract now in effect. The election was held on May 7, 1946, and was inconclusive, 64 ballots being challenged. B Contentions and conclusions Counsel for the Board contends that "at all times prior to the tiling of charges by the CIO (in April 1946) the contract which the respondent raises as a defense was modified by a written waiver making [the contract] an open shop contract; andiinmedmtely piior to April 10, 1946, [at a time when a decision in the Rep- resentation case was pending] the [AFL and respondent] orally agreed to modify THE ELLIS CANNING COMPANY 113 the existing open shop contract by reinstituting the closed-shop provision," and that this act of agreeing to reinstitute the closed-shop provision in the face of the representation proceedings is in violation of the Act and therefore that the refusal to rehire the 49 named employees because they refused to join the AFL is in violation of Section 8 (3) of the Act. Counsel for the AFL contends, first. "that the letter [of January 1945] was merely a waiver of the enforcement of the closed-shop provision and was not a modification of the closed-shop prevision," and, second, that "when that contract expired, the contract to which the letter was directed, a new contract was entered into, the contract involved in this case and the closed-shop provision was included in it. Had the parties intended to modify this contract and deny the closed-shop riovision, pursuant to the waiver it seems to me it certainly would have omitted it from the contract of August, effective July 1, 1945, until July 1, 1946." The AFL argument seems to be in the alternative, one that the agreement not to enforce the closed-shop provision only applied to, the contract then being nego- tiated, which contract it claims was superseded by the August 1945 contract and that therefore the agreement not to enforce did not apply to the August 1945 "amended agreement" and that the contracting parties can legally enforce the closed-shop provision at any time because the agreement not to enforce the con- tract was not a modification of the contract but merely a waiver of the closed-shop provision. It does not seem to the undeisigned that the technical aspects of the construc- tion of contracts set forth by the arguments of counsel need be determined because it would not affect the basic issue herein That issue is • with a valid closed-shop contract existing,' but with the closed-shop provision not having been enforced by agreement between the contracting parties, can these parties in the face of a pending representation proceeding, by oral agreement, decide to enforce the closed- shop provision and require all employees to join the contracting union? One line of decisions following the Rutland Coul t case' holds that employees' right to select representatives to be meaningful must neces- sarily include the right at some appropriate time to change representatives . . in selection of a bargaining agent the employees must be able, before the term of the existing representative has come to an end, to affiliate with and campaign for any union for the nei t period. Effectuation of the basic poli- cies of the Act requires, as the life of the effective contract draws to a close that the employees be able to advocate a change in their affiliation without fear of discharge by an employer for so doing. Had the respondent in January 1946 after the petition had been filed by the CIO, fired CIO members on request of the AFL, or in April on reopening the plant had respondent refused reemployment to CIO members who were willing to join the AFL, the position of counsel for the Board would be more tenable. These facts are not before us, however. No one was discharged for joining the 'With the AFL a contracting party with respondent for 4 years previously, their rep- resenlnng a majority of the employees in August 1945 must be assumed Likewise counsel for the Board's contention that as there was no one working in the plant prior to April 10, the AFL was therefoie not the bargaining agent, is rejected The employees were tem- porarily laid off and of course the AFL contnnned as their bargaining agent. As a matter of fact the Board in the It case held the contract to be valid until July 1, 1946, and ordered an election to dettinune the representatives to enter into a new contract to succeed that contract. I In the Hatter of Rutland Court Owners, Inc, 44 N. L 11 B 587. 114 DECISIONS OF NATIONAL LABOR RELATIONS BOARD CIO in January 1946, and in April every employee on the February pay ro11 was recalled to work and every one who reported n as requested to join the AFL regardless of their activities on behalf of the CIO There is no showing that all employees on the February pay roll would not have been reemployed on April 10 had they joined the AFL, and no showing that atter joining the AFL they could not have affiliated with, campaigned for, and voted for the CIO without hindrance from respondent. Without such proof the Rritland Coltit line of deci- sions is inapplicable herein. Another line of Board decisions held, as succinctly stated by the Board in its tiercut-Richards decision': "In accordance with well established principles, the employers may not pending a new election, give preferential treatment to any of the labor organizations involved." Such preferential treatment was shown in the Midwest Piping case° where the Board held the respondent therein to have violated the Act by entering into a "union shop-agieeinent with one union when respondent knew at the time the contract was executed "that there existed a real question concerning the representation of employees in question " Other such preferential treatment was pointed out in the Phelps Dodge case10 wherein the Board said, We are of the opinion that if, during the pendency of an election directed by the Board, to resolve a question concerning representation, an employer extends or renews an existing contract with a labor organization, or makes a new one, he violates the Act insofar as that organization is accorded recogni- tion as exclusive bargaining representative or employees are required to become or remain members thereof as a condition of employment. Clearly respondent herein knew a "real question" concerning representation existed when it agreed with the AFL in April 1946, to enforce the closed-shop provision of its contract. Obviously also enforcing this provision was not extend- ing or renewing an existing contract or entering into it new one. If knowledge of the question concerning representation forecloses the respondent from enforcing the closed-shop provision on request of the Union, the doctrine of the Phelps Dodge case is extended. In other words, in so holding the undersigned would be deciding that "If, during the pendency of an election directed by the Board to resolve a question of representation, an employer extends or renews an existing contract with a labor organization or enforces a provision of an existing contract not there- tofore enforced since the signtnq of that contract * * he violates the Act, insofar as that organization is accorded recognition r * * or employees are required to become or remain members thereof." Such an extension of the recog- nized doctrine seems to the undersigned to be unsound. It would be holding that a respondent and a union representing its employees could never for any reason, however laudable, agree not to enforce a union security provision without danger of being forced to waive thereafter the provision if a rival union started organizing and filed a petition with the Board. The undersigned finds that respondent did not violate the Act by requiring membership in the AFL on and after April 10, 1946, and that by refusing to con- tinue the employment after April 10 of the 49" of its employees named in "Exhibit 8 In the Matter of Bercut-Richards Packing Company, et al., 65 N L R B 1052. ° In the Matter of Midwest Piping and Supply Co , 63 N L. R. B. 1060. 1° In the Matter of Phelps Dodge Copper Products Corp , 63 N L. R. B. 686. 11 The names of two employees, Nicholas Sanchez and Joe Munoz, were stricken from the complaint at the hearing on Motion of Counsel for the Board. THE ELLIS CANNING COMPANY 115 'B" attached hereto, who refused to join the AFL, 'respondent did not violate Section 8 (3) of the Act" Upon the basis of the foregoing findings of fact and upon the entire record in the case, the undersigned makes the following: CONCLUSIONS of LAW 13 1. Warehousing, Processing & Distributing Union No. 217, affiliated with Inter- national Longshoremen's and Warehousemen's Union, CIO, and Produce Drivers, Helpers, and Warehousemen's Union, Local Union No. 452, of the International Brotherhood of Teamsters, Chauffeurs, Warehousemen, and Helpers of America, affiliated with the American Federation of Labor, are labor organizations within the meaning of Section 2 (5) of the Act. 2. The respondent is engaged in commerce within the meaning of Section 2 (6) and (7) of the Act. 3. The respondent has not engaged in any unfair labor practice within the meaning of Section 8 (1) and (3) of the Act. RECOMMENDATIONS Upon the basis of the foregoing findings of fact and conclusions of law and upon the entire record in the case, the undersigned recommends that the com- plaint against the respondent, N L Koin and D. M. Loin, a partnership, d/b/a The Ellis Canning Company and The Ellis Canning Company, a corporation, be dismissed in its entirety. As provided in Section 203.39 of the Rules and Regulations of the National Labor Relations Board, Series 4, effective September 11, 1946, any party or counsel for the Board may, within fifteen (15) days from the date of service of the order transferring the case to the Board, pursuant to Section 203.38 of said Rules and Regulations, file with the Board, Rochambeau Building, Washington 25, D. C., an original and four copies of a statement in writing setting forth such exceptions to the Intermediate Report or to any other part of the record or proceeding (including rulings upon all motions or objections) as he relies upon, together with the original and four copies of a brief in support thereof ; 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 203 65. As further provided in said Section 203.39, should any party desire permission to argue orally before the Board, request therefor "Respondent filed with its answer a Motion to Dismiss in which the AFL joined. This was denied at the opening of the hearing At the close of the hearing respondent and the AFL renewed the motion, on which ruling was reserved. The reasons set forth in the motion were that there was "a complaint case arising over an agreement" within the meaning of the limitation to the 1946 Board Appropriation Act. Counsel for the Board argued that the case did not effect an agreement and therefore the limitation did not apply. Regardless of this contention the evidence did not show that the contract of August 10, 1945, or a notice of it containing information as to the location where the contract was available for inspection had been posted at the plant for 3 months as required by a provision of said limitation The motion to dismiss is herewith denied. 13 The three "Suggested Findings" of the AFL are herewith rejected. 781902-48-vol 76-9 116 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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. Dated December 6, 1946. Antrilla, Lena - Antuna, Eugene, Jr. Aragon, Abelino Aragon, Braulo Baca, Daniel Castellano , Raymond Chapman, Thomas Chavez, Prudencia Cordova, Alexander Cummings, James A. Barella, Rosalio Espinoza, Gabriel Gallegos , Anselmo Gallegos, Trinidad Gomez, Helen Gomez, Rose Ann Gonzalez, Antonio Gonzalez, Je M. Juarez, Willard Hagenlock, William Marez, Esther Martinex, Cruz Montoya, Juanita Martinez, Rose S. Antrilla, Lena Antuna, Eugene, Jr. Aragon, Abelino Aragon, Braulo Baca, Daniel Castellano, Raymond Castro, Jose Chapman, Thomas Chavez, Prudencia Cordova, Alexander Cummings, James A. Barella, Rosalio Espinoza, Gabriel Gallegos, Anselmo Gallegos, Trinidad EXHIBIT A Moya, Faustina Pereida, Delubina Pina, Lorenza Rodriguez, Eva Romero, Jim' Romero, Theresa Romero, Willie Roybal, Elias Salazar, Eufracio Sanchez, Esperanza Sanchez, Jennie Sanchez, Pauline Solano, Ralph Sequra, Sabine Silva, Alberta Torrez, Lillian Trujillo, Ernest J. Trujillo, Felix Trujillo, Nash Vasquez, Formin Wirreuta, Henry Wiley, Ruth Yanex, Louis R. EXHIBIT B Gomez, Helen Gomez, Rose Ann Gonzalez, Antonio Gonzalez, Je M. Juarez, Willard Hagenlock , William Marez, Esther Martinex, Cruz Montova, Juanita Martinez, Rose S. Moya, Faustina Pereida, Delubina Pina, Lorenza Rodriguez, Eva Romero, Jim T. B. SMooT, Trial Examiner. Romero, Theresa Romero, Willie Roybal, Elias Roybal, Juan Salazar, Eufracio Sanchez, Esperanza Sanchez, Jennie Sanchez, Pauline Solano, Ralph Sequra, Sabine THE ELLIS CANNING COMPANY Silva, Alberta Torrez, Lillian Trujillo, Ernest J. Trujillo, Felix Trujillo, Nash Vasquez, Formin Wirreuta, Henry Wiley, Ruth Yanex, Louis R. 117