Normal Packing Co.

In the Matter of NORCAL PACKING COMPANY , EMPLOYER and THE AMALGAMATED MEAT CUTTERS AND BUTCHER WORKMEN OF NORTH AMERICA, LOCAL No. 445, AFL, PETITIONER In the Matter of NEW ENGLAND FISH Co., EMPLOYER and THE AMAL- GAMATED MEAT CUTTERS AND BUTCHER WORKMEN OF NORTII AMERICA, LOCAL No. 445, AFL, PETITIONER In the Matter of THEO. WEISSICU FISH Co., INC., EMPLOYER and Tl-IE AMALGAMATED MEAT CUTTERS AND BUTCHER WORKMEN OF NORTH AMERICA, LOCAL No. 445, AFL,' PETITIONER Cases Nos. 0O-R-2021, 20-R-2224, and 20-R-2225, respectively.-De- cided February 19, 1948 Mr. S. J. Sturiale, of Fields Landing, Calif., for Norcal. Mr. Andrew Smith, Jr., of Eureka, Calif., for New England. Mr. Theo. Weissich, of Eureka. Calif., for Weissich. Messrs. Harold V. Pavey and Albin J. Gruhn, both of Eureka, Calif., for the Petitioner. Gladstein, Andersen, Resner and Sawyer, by Mr. Norman Leonard, of San Francisco, Calif., for the Intervenor. DECISION AND DIRECTION OF ELECTIONS Upon separate petitions duly filed, a consolidated hearing in this case was held at Eureka, California, on August 15, 1947, before Robert E. Tillman, hearing officer. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed.2 Upon the entire record of the case, the National Labor Relations Board makes the following : 1 The names of the parties appear as amended at the hearing The companies are heiein- after collectively referred to as the Employers 2 Subsequent to the hearing in this case, the Board was apprised of the fact that New England had completely closed out its operations in Eureka, California. Thereafter, on December 22, 1947. the Petitioner filed with the Board a Motion to Sever and Withdraw Petition in Case No 20-R-2224, involving New England The motion is hereby granted. 76 N. L. R. B., No. 39. 254 NORCAL PACKING COMPANY FINDINGS OF FACT I. THE BUSINESS OF THE EMPLOYERS 255 Norcal Packing Company, herein called Norcal, is a partnership operating a plant at Fields Landing, California, where it is engaged in processing and distributing seafood products. During the year 1946, it purchased $211,839.06 worth of seafood, all obtained from the waters, of the Pacific Ocean. During the same period, it sold $344,914.56. worth of seafood products, of which approximately 4 percent was shipped to points outside the State of California. The Theo. Weissich Fish Co., Inc., herein called Weissich, is a California corporation engaged in processing and distributing seafood products at Eureka, California. During the 6-month period ending April 30. 1947, it purchased 1,017,271 pounds of fish, all obtained from the waters of the Pacific Ocean. During the same period, it sold 254,318 pounds of seafood products, of which approximately 10 per- cent was shipped to points outside the State of California. The Employers admit, and we find, that they are engaged in coln- merce within the meaning of the National Labor Relations Act, as amended. II. THE ORGANIZATIONS INVOLVED The Petitioner is a labor organization affiliated with the American Federation of Labor, claiming to represent employees of the Employer. International Fishermen & Allied Workers of America, Local 38, herein called the Intervenor, is a labor organization affiliated with the Congress of Industrial Organizations, claiming to represent employees of the Employer.3 III. THE QUESTIONS CONCERNING REPRESENTATION On April 1, 1946, the Employers herein were parties to a 1-year automatically renewable master contract entered into between the Intervenor and the Northern California Fisheries Association, herein called the Association.' On April 4, 1947, the Petitioner wrote to 'Having permitted intervention by this labor organization on the basis of a sufficient showing of interest, we have allowed such intervention foi all purposes and have given full consideration to the Intervenor's contentions with respect to all issues in this proceed- ing, notwithstanding the fact that it is not in compliance with Section 9 (f), (g), and (h) of the Act, as amended See footnote 17, however, as to whether the Intervenor is entitled to a place on the ballot in view of such noncompliance. 4 The Association was formed -March 8, 1946, by a group of Northern California seafood processing concerns for the purpose, inter aha, "to conduct collective b.ircaiwnc nego- tiations with labor unions on behalf of its members " The record discloses a practice on the part of the Association of negotiating with the Intervenor on behalf of its member'. notif}ing its members by telephone of the substance of a contemplated master contract 256 DECISIONS OF NATIONAL LABOR RELATIONS BOARD each of the Employers requesting recognition as the "sole collective bargaining agent" of a specified unit of their respective employees.,, The Employers replied, refusing to recognize the Petitioner until proof of majority representation had been made." On April 11, 1947, the Petitioner filed with the Board the petitions herein. On June 16, 1947, the Association and the Intervenor entered into a new master contract to run for 1 year; the Employers were parties to this agreement. The Intervenor contends that no questions concerning representation were raised by virtue of the Petitioner's letters of April 4, 1947, to the Employers, inasmuch as these letters contain no claim of majority representation and do not constitute a demand on their face. The contention clearly has no merit. Even if the Petitioner's letters of April 4 were considered insufficient in themselves to constitute a valid representation claim,' as alleged, there is evidence of the telephone conversations, prior to the mailing of the April 4 letters, between the Petitioner and the respective Employers herein apprising the latter of the Petitioner's majority claim. In any case, the filing of these petitions was enough in itself to place the Employers on notice of the Petitioner's claim." Whether or not any of the parties took proper action to forestall the automatic renewal of the 1946 contract, an entirely new agreement was executed on June 16, 1947, which would supersede the preexisting contract, if any, and render such a contract inoperative as a bar. The petitions having been filed prior to the execution of the June 16, 1947, contract, it is clear that the latter contract , as well as the 1946 contract, constitutes no bar.9 Accordingly, we find that questions affecting commerce exist con- cerning the representation of employees of the Employers, within the meaning of Section 9 (c) (1) and Section 2 (6) and (7) of the Act. and receiving oral approval of the contract and authority to sign for the particular member. Insofar as the record shows, the names of the particular employers covered are not indicated in these contracts. 5 There is evidence that the Petitioner orally advised each of the Employers of its representation claim in telephone conversations prior to the mailing of these letters. 6 The Employers advised the Petitioner in their separate replies that they would be agreeable to any form of legal process selected by the Petitioner In establishing proof of majority . At the hearing the Intervenor moved to dismiss the petitions on the ground that the Petitioner failed to produce the proof of majority requested by the Employers and that, therefore , no questions concerning representation exist. The motion is obviously groundless, since the Petitioner is presently before the Board seeking to prove its majority, and it is hereby denied. 7 But cf. Matter of Bauer-Schweitzer Hop d Malt Co., 72 N. L. R. B . 1223, 1227. 8 Matter of Rockford Drop Forge Company, 73 N. L. It. B 26, 28. 1 Matter of Atlas Felt Products Company, 68 N. L . It. B. 1, 3. NORCAL PACKING COMPANY IV. THE APPROPRIATE UNITS 257 The Petitioner seeks separate employer units of all plant and dock workers, excluding office and clerical employees and supervisors io The Intervenor contends that a multiple-employer unit is appropriate; the Employers take neutral positions. The Employers' operations of preparing and shipping fresh sea- food, as distinguished from canning, are substantially the same. Their supply is dependent entirely upon the catch brought in by fishing boats from time to time 11 Although their operations continue throughout the year, business fluctuates with the arrival of these boats, which is relatively more frequent in the summer months when fishing conditions are better. Upon the arrival of a fresh supply of fish, effort is made by each plant to process this seafood as quickly as possible. Inasmuch as the various plants in the area (seven plants in and around Humboldt Bay, California) generally receive their fish supply at different times, a considerable amount of employee interchange takes place between most of these plants.12 Weissich had been in continuous operation since 1933 except for about 1 year in 1941; it was incorporated in 1946. Theodore Weissich testified that "a number of years ago," he had a contract with the Petitioner and with the AFL teamsters which "flitter [ed] out for some reason or other." On May 25, 1945, the Board conducted sep- arate consent elections among the employees of the seven employers then operating fish plants in the Humboldt Bay area, in which the Petitioner and the Intervenor' were contending parties. The Inter- venor won the election at Weissich and entered into a contract covering that plant. As shown above, Weissich continued this contractual relation with the Intervenor through the Association after the forma- tion of the latter in March 1946. Norcal commenced operations in July 1945. Following a card check-off conducted by an independent agency in September 1945, to which the Petitioner was not a party, the Intervenor was designated as the majority representative of Norcal's employees. Norcal there- upon entered into a contract with the Intervenor. As shown above, it continued its relations with the Intervenor through the Associa- tion in 1946 and 1947. 10 Both labor organizations herein stipulated as to the composition of the unit. 11 These boats are operated by independent fishermen who are represented by the Inter- venor in the master contracts mentioned above. L The record shows that during the period from January to July 1947, 120 different persons were employed for varying lengths of time by weissich, and 112 by Norval During this period, 26 of these persons appeared on the employment lists of both Employers. At the time of the hearing, weissich was employing about 50 persons regularly and Norval about 8 persons. 258 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The record shows that there are approximately 50 members in the Association, including 7 having plants in the Humboldt Bay area. Weissich is located in Eureka, while Norcal has its plant in Fields Landing, 6 miles from Eureka on Humboldt Bay. There are 2 Asso- ciation members 13 not involved in this proceeding operating plants in that area who are not covered by the agreements between the Association and the Intervenor; these 2 plants have been represented by the Petitioner since the latter won these elections conducted by the Board in 1945. The foregoing indicates that since April 1946 the Employers have been represented by the Association, together with other employers in the same industry. However, prior to the inception of the Asso- ciation, collective bargaining had been conducted on a single-employer basis ; the consent elections in 1945 had been conducted by the Board among the individual employers in the Humboldt Bay area and the successful unions were designated to represent separate employer units. Thus, it appears that bargaining by the Association for the Employers prior to the filing of the petitions in this case had been in effect for a relatively brief period, i. e., about 1 year, as opposed to the earlier individual bargaining of the Employers. Such a brief bargaining history not predicated upon a Board unit finding, as we have previ- ously held, does not preclude the determination of different appropri- ate bargaining units 14 Moreover, the fact that the Employers in this case have taken a neutral position with respect to the scope of the appropriate unit indicates, in our opinion, that they are not unwilling to pursue an independent course in bargaining from that of the Asso- ciation.15 Under all the circumstances, we conclude that separate bargaining units of the employees of the Employers herein are appropriate. We find that all plant and dock workers employed by Weissich in its operations at Eureka, California, excluding office and clerical employees and supervisors, constitute a unit appropriate for the pur- poses of collective bargaining within the meaning of Section 9 (b) 'of the Act. We find that all plant and dock workers employed by Norcal at its Fields Landing, California, plant, excluding office and clerical em- ployees and supervisors, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act. la Hallmark Fisheries Company and Tom Lazio Fish Company. 14D1atten of Gulf Oil Corporation, 72 N L. R B 895, 898 ; Matter of Aluminum Company of America, 60 N. L. R B 278. 282 15 Cf, e g, Matter of Canada Dry Ginger Ale, Incorporated, 18 N. L R B. 460. NORCAL PACKING COMPANY V. THE DETERMINATION OF REPRESENTATIVES 259 As indicated above, the operations of the Employers, and conse- quently their employment rolls, fluctuate in accordance with the ar- rival of fishing boats with fresh supplies of fish. Future operations are therefore unpredictable, except that a greater frequency of boat arrivals.may be anticipated in the summer months when.fishing,condi- tions are generally better. Therefore, in view of the apparent diffi- culty in ascertaining at this time a precise peak period in the operations of the Employers in which to conduct the elections so that a representa- tive vote may be assured, we shall direct that the elections be conducted as early as possible on a day or days to be determined by the Regional Director.16 In further view of the large extent of employee inter- change among most of the employers in the area, as shown above, we shall direct that a 60-day eligibility period immediately preceding the date of the elections be used to determine which of the employees in the appropriate units are eligible to vote in the elections. Thus, employees otherwise eligible to vote in one of the elections will not be disfranchised if immediately prior to the elections they happen to be employed by another employer in the area. We shall direct that the questions concerning representation which have arisen be resolved by separate elections by secret ballot, subject to the limitations and additions set forth in the Direction. DIRECTION OF ELECTIONS 11 As part of the investigation to ascertain representatives for the purposes of collective bargaining with Norcal Packing Company, Fields Landilig, California, and Theo. Weissich Fish Co., Inc., Eureka, California, separate elections by secret ballot shall be conducted as early as possible on a day or days to be determined by the Regional Director, under the direction and supervision of the Regional Director for the Twentieth Region, and subject to Sections 203.61 and 203.62, of National Labor Relations Board Rules and Regulations-Series 5, among the employees in the units found appropriate in Section IV, above, who were employed at any time during the 60-day period imme- diately preceding the date of the elections, including employees who did not work during the said 60-day period because they were ill or on vacation or temporarily laid off, but excluding those employees who 16 Matter of Greenwich Oyster Company, 73 N L R B 1459. 37 Having been allowed a reasonable time in which to comply with the filing requirements of Section 9 (f), (g), and ( h) of the National Labor Relations Act, as amended , effective August 22, 1947, and having nevertheless failed to comply with such requirements, the Intervenor will not be accorded a place on the ballot. 781902-48-vol. 76-18 260 DECISIONS OF NATIONAL LABOR RELATIONS BOARD have since quit or been discharged for cause and have not been rehired or reinstated prior to the date of the elections, and also excluding em- ployees on strike who are not entitled to reinstatement, to determine whether or not they desire to be represented by The Amalgamated Meat Cutters and Butcher Workmen of North America, Local No. 445, AFL, for the purposes of collective bargaining. CHAIRMAN HERZOG took no part in the consideration of the above Decision and Direction of Elections.