Western Fisheries

In the Matter of WESTERN FISHERIES, A CORPORATION and CANNERY WORKERS UNION, LOCAL #21173, A. F. OF L. In the Matter of FISHERMAN'S PACKING CORP., A CORP. and CANNERY WORKERS UNION, LOCAL #21173, A. F. OF L. Cases Nos. R-1547 and R-1548, respectively.Decided November 6, 1939 Salmon Canning Industry-Investigations of Representatives : Western: re- fusal to bargain until certification by Board ; contract between company and union filing petition and contract covering only members of union and executed after filing of petition no bar to determination of representatives ; Fisherman's : controversy concerning representation of employees: contract between company and both competing unions terminable prior to next fishing season no bar to determination of representatives-Unit Appropriate for Collective Bargaining: Western: all employees engaged in handling, processing, and canning fish, includ- ing warehousing of finished products , excluding executives , supervisory employees, office employees, machinists, machinists' helpers, and the time- keeper ; Fisherman's : all cannery and warehouse employees including the matron, but excluding supervisory employees , office employees, machinists, machinists' helpers, and carpenters-Elections Ordered: due to interchange of employees between companies in locality, standards adopted permitting an employee to vote in only one election. Mr. Patrick H. Walker, for the Board. Mr. Edward F.. Medley, of Seattle, Wash., for Western. Mr. Lee Makovich, of Anacortes, Wash., for Fisherman's. Mr. Nelson Durham, of Seattle, Wash., for Local No. 21173. Mr. Paul Coughlin, of Seattle, Wash., for Local No. 17. Mr. Guilford Moe, of Bellingham, Wash., for the I. A. M. Mr. Robert D. Allen, of counsel to the Board. DECISION AND DIRECTION OF ELECTIONS STATEMENT OF THE CASE On July 26, 1939, Cannery Workers Union, Local 21173, A. F. of L., herein called Local No. 21173, filed with the Regional Director for the Nineteenth Region (Seattle, Washington) a petition alleging that a question affecting commerce had arisen concerning the representa- tion of employees of Western Fisheries, Anacortes, Washington, 17 N. L. R. B., No. 20. 364 WESTERN FISHERIES 365 herein called Western, and requesting an investigation and certifica- tion of representatives pursuant to Section 9 (c) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. On August 7, 1939, Local No. 21173 filed with the Regional Director a petition alleging that a question affecting commerce had arisen concerning the representation of employees of Fisherman's Packing Corp., Anacortes, Washington, herein called Fisherman's and, together with Western, called the Companies, and requesting a similar investigation and certification. On September 8, 1939, the National Labor Relations Board, herein called the Board, acting pursuant to Section 9 (c) of the Act and Article III, Section 3, of National Labor Relations Board Rules and Regulations-Series 2, ordered investigations with respect to each petition and authorized the Regional Director to conduct them and to provide for appropriate hearings upon due notice. On September 11, 1939, the Regional Director issued a notice of hearing on each petition, copies of which were served upon Western and Fisherman's, respectively, upon Local No. 21173, upon Anacortes Cannery Workers Union, Local 17, C. I. 0., herein called Local No. 17, and upon International Association of Machinists, herein called the I. A. M. the last two being labor organizations claiming to rep- resent employees directly affected by the investigations. Pursuant to the notices separate hearings were held on September 25, 1939, at Mount Vernon, Washington, before Thomas S. Wilson, the Trial Examiner duly designated by the Board. The Board, Local No. 21173, and Local No. 17 were represented by counsel; the I. A. M. by its representative. All participated in the hearings. Western was represented by counsel; Fisherman's, by its general manager; each participated in the respective hearings. Full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing on the issues was afforded all parties. During the course of the hearing in the proceeding involving Western, the Trial Examiner made several rulings on objections to the admission of evidence. The Board has reviewed these rulings of the Trial Exam- iner and finds that no prejudicial errors were committed. The rulings are hereby affirmed. On October 5, 1939, Local No. 21173 filed a brief in each proceeding. Since the hearings were conducted on the same day and the issues presented are substantially similar, we are disposing of both cases in one decision. Upon the entire records in the cases, the Board makes the following : FINDINGS OF FACT I. THE BUSINESSES OF THE COMPANIES Western Fisheries is a Washington corporation engaged in the business of canning salmon at Anacortes, Washington. All the ma- 366 DECISIONS OF NATIONAL LABOR RELATIONS BOARD terials used in the processing and packing operations are shipped to it by vessels operating on Puget Sound. Western did not operate during the 1938 season . In 1937 it packed 14,742 cases of salmon of which approximately 99 per cent were shipped to purchasers outside the State of Washington. Fisherman's Packing Corp. is a Washington corporation engaged in the business of canning salmon at Anacortes , Washington. The packing materials used by Fisherman's in its processing and pack- ing operations, many of which materials originate in States other than Washington, are shipped to it by vessels operating on Puget Sound. In 1938 Fisherman 's packed 60,000 cases of salmon, ap- proximately 99 per cent of which were sold and transported to pur- chasers outside the State of Washington. At the hearing it was conceded by Fisherman's that it is engaged in interstate commerce. II. THE ORGANIZATIONS INVOLVED Cannery Workers Union, Local #21173, A. F. of L., is a labor organization admitting to membership all employees of the Com- panies engaged in handling , processing, and canning salmon, including warehouse employees, but excluding executives , office em- ployees, supervisory employees , machinists, and carpenters. Anacortes Cannery Workers Union, Local 17 , C. I. 0., is a labor organization affiliated with United Fishermen of the Pacific, C. I. 0., admitting to membership the same classes; of employees of the Companies as Local No. 21173. International Association of Machinists is a labor organization affiliated with the American Federation of Labor. It admits to membership machinists and machinists ' helpers employed by the Companies. III. THE QUESTIONS CONCERNING REPRESENTATION Western.-In 1937 Cannery Workers Union, Local 18257, the predecessor of Local No. 21173; entered into a closed-shop contract with Western. The contract was not produced at the hearing nor were its terms fully disclosed. It appears, however, that it was to be effective for one year and thereafter from year to year, in the absence of notice of termination given by either party 30 days prior to the stated expiration date. While it was not shown to have been terminated, no contention was made at the hearing that it was binding on the parties at that time. On August 12, 1939, subsequent to the filing of the petition herein, Local No. 17 entered into a contract with Western, by which West- ern recognized Local No. 17 as the collective bargaining representa- tive of its members only . It was not claimed by any party that either of these contracts is a bar to our determination of represen- WESTERN FISHERIES 367 tatives of the employees of Western, and we do not consider them -to be a bar.' After the filing of the petition, Western posted a notice at its plant to the effect that no further negotiations would be conducted with either union until the Board had certified one or the other as the representative of its employees. At the hearing Western further expressed its desire for such certification prior to further negotiations with either labor organization. Fisherman's.-Prior to the 1938 season, Fisherman's, being ap- prehensive of possible friction between Local No. 21173 and Local No. 17, refused to recognize either as the exclusive collective bar- gaining representative of its employees. Fisherman's insisted upon what is called, in the industry, a "dual contract" by which it would recognize both organizations as the representatives of their respective members in its employ. Such a contract was entered into on July 22, 1938. By its terms it was to remain in effect until May 1, 1939, and thereafter from year to year in the absence of notice of termi- nation given 30 days prior to the stated expiration date. No such notice was given prior to May 1, 1939. However, Local No. 17 has expressed its intention to terminate the contract prior to the opening of the 1940 season. Local No. 21173 and Local No. 17 are now each seeking to represent Fisherman's employees for the purposes of col- lective bargaining. Under these circumstances, we do not consider this contract to be a bar to a determination of representatives of the employees of Fisherman's. We find that questions have arisen concerning the representation of employees of each of the Companies. IV. THE EFFECT OF THE QUESTIONS CONCERNING REPRESENTATION UPON COMMERCE We find that the questions concerning representation which have arisen, occurring in connection with the operations of the Companies described in Section I above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States and tend to- lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE APPROPRIATE UNIT Western.-At the hearing it was agreed by both Local No. 21173 and Local No. 17 that all employees of Western engaged in handling, processing, and canning fish, including warehousing of finished 1 See Matter of American France Line et at. and International Seamen's Union of Amer. ,ca, 3 N. L. R. B. 64; Matter of Unit Cast Corporation and Steel Workers Organizing Com- mittee, 7 N. L. R. B. 129; Matter of White Sewing Machine Corporation and United Electrical Radio and Machine Workers of America, Local 721 (C. I. 0.), 10 N. L. R. B. 802. 368 DECISIONS OF NATIONAL LABOR RELATIONS BOARD products, excluding executives, office employees, machinists, and ma- chinists' helpers,2 constitute a unit appropriate for the purposes of collective bargaining. The exact meaning of the term "executives" is not clear from the record. We think it was the intention that supervisory employees should be considered within this category, and we shall accordingly exclude them. Local No. 21173 contends that the timekeeper employed by Western is included within the unit so agreed upon, whereas Local No. 17 considers him an office employee and thereby excluded. It appears that by far the greater part of his working time is spent in the office. Although he does not have authority to hire and discharge, it is his. duty to call and have on hand sufficient employees to handle each day's work, the number necessary varying greatly according to the supply of fish available. In view of the nature of his work and his relation- ship to the other employees of Western, ' we find that he should be excluded from the unit. We find that all employees of Western engaged in handling, pro- cessing, and canning fish, including warehousing of finished products, excluding executives, supervisory employees, office employees, ma- chinists, machinists' helpers, and the timekeper, constitute a unit ap- propriate for the purposes of collective bargaining and that said unit will insure to the employees of Western the full benefit of their right to self-organization and to collective bargaining and otherwise ef- fectuate the policies of the Act. Fisherman's.-At the hearing Local No. 21173 and Local No. 17 agreed that the unit appropriate for the purposes of collective bar- gaining with Fisherman's consists of all cannery and warehouse em- ployees, excluding supervisory employees, office employees, machinists, machinists' helpers, and carpenters. In its brief, Local No. 21173 contends that the "matron" employed by Fisherman's, Dorothy Kraywinkle, should be excluded from the appropriate unit. Like the timekeeper at Western, it is one of her duties to call employees to work when they are needed; but a list of those to be called is furnished to her by the management, a fact which does not appear in the case of Western's timekeeper. She does not do any office or secretarial work. Her principal duties consist of taking care of the uniforms worn by the employees and administering first. aid to any who may be injured. We are of the opinion that the matron should be included within the appropriate unit. We find that all cannery and warehouse employees of Fisherman's including the matron, but excluding supervisory employees, office 2 The agreement as to the appropriate , unit was arrived at by reference to the petition which excluded "mechanics, who belong to the Machinists Union, A. F. of L." Under all the circumstances it appears that it was thereby intended to exclude the machinists and machinists' helpers in western's employ. WESTERN FISHERIES 369 employees, machinists, machinists' helpers, and carpenters, constitute a unit appropriate for the purposes of collective bargaining and that said unit will insure to the employees of Fisherman 's the full benefit of their right to self-organization and to collective bargaining and otherwise effectuate the policies of the Act. VI. THE DETERMINATION OF REPRESENTATIVES For the purpose of showing substantial membership among the em- ployees of both Companies, Local No. 17 introduced into evidence a number of membership application cards. Local No. 21173 claimed, but made no proof of, substantial membership among the employees. We find that the questions concerning representation which have arisen can best be resolved by means of elections by secret ballot. At the hearings, it was agreed by the parties that, should the Board direct an election among the employees of Fisherman's, the pay roll for the 1939 season should be used to determine eligibility to partici- pate therein. With respect to Western, Local No. 2'1173 requested that the employees on both the 1937 and 1939 pay rolls be permitted to vote. As stated above, Western's plant was not operated during the 1938 season. In view of the lapse of time, we believe that the employees who worked for Western during the 1937 season and who do not appear on the 1939 pay roll do not have a sufficient interest in wages, hours of employment, and other conditions of employment at Western to entitle them to participate in the election. No valid reason appears why the 1939 pay rolls should not be the basis for determining eligibility in both elections. . Issued simultaneously herewith are a Decision and Direction of Elections in proceedings involving the employees of three other com- panies engaged in the salmon canning industry at Anacortes, Wash- ington.3 The records in those proceedings disclose and the Board has found that employees in the industry in the Anacortes area shift from one company to another during the course of the season, as the opera- tions of the various companies fluctuate. This finding is supported by comparison of the pay rolls introduced into evidence in the instant proceedings with each other and with those of the companies involved in the cited decision. As we said in the cited decision, we believe that an employee should be allowed to vote in only one of the elections. We shall accordingly adopt the standards of eligibility used in the cited'decision. Each employee shall participate with the employees of the company 4 which employed him for the greatest number of days . 8 Matter of Sebastian ,Stuart Fish Co., a corpn. and Cannery Workers Union, Local 21173, A. F. of L. Case No. R.-1446; Matter of Farwest Fishermen, Inc., a corpn. and Cannery Workers Union, Local 21173, A. F. of L. Case No. R-1447; Matter of Anacortes Canning Co., a corpn. and Cannery Workers Union, Local 21173, A. F. of L. Case No. R-1448. ' Sebastian Stuart Fish Co., Farwest Fishermen , Inc., Anacortes Canning Co., western Fisheries, or Fisherman's Packing Corp. , 370 DECISIONS OF NATIONAL LABOR RELATIONS BOARD during the 1939 season; provided, that in the event that an employee has worked for the same number of days for two or more of the com- panies, he shall participate with the employees of that one of such companies which last employed him. Any period of time described above shall be computed by days; the number of hours of employment per day shall not be considered.5 No employee shall be eligible to participate with the employees of any company whose employment he has quit or from which he has been discharged for cause. However, in the event that any employee shall have quit or been discharged for cause by any one or more of the companies, his employment by such company or companies shall not be considered in determining his eligibility to participate with the employees of any other company for which he may have worked during the 1939 season. Upon the basis of the above findings of fact and upon the entire records in the cases, the Board makes the following : CONCLusIONs of LAW 1. Questions affecting commerce have arisen concerning the repre- sentation of employees of Western Fisheries and Fisherman's Packing Corp., respectively, Anacortes, Washington, within the meaning of Section 9 (c) and Section 2 (6) and (7) of the Act. 2. All employees of Western Fisheries engaged in handling, proc- essing, and canning fish, including warehousing of finished products, excluding executives, supervisory employees, office employees, ma- chinists, machinists' helpers, and the timekeeper, constitute a unit ap- propriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act. 3. All cannery and warehouse employees of Fisherman's Packing Corp., including the matron, but excluding supervisory employees, office employees, machinists, machinists' helpers, and carpenters, con- stitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act. DIRECTION OF ELECTIONS By virtue of and pursuant to the power vested in the National La- bor Relations Board, by Section 9 (c) of the National Labor Relations Act, and pursuant to Article III, Section 8, of National Labor Re- lations Board Rules and Regulations-Series 2, it is hereby DIRECTED that, as part of the investigation authorized by the Board to ascertain representatives for the purposes of collective bargaining 5 See Matter of F. B. Booth & Company, et at. and Monterey Bay Area Fish Workers Union No. 23, 10 N. L. R. B. 1491. WESTERN FISHERIES 371 with Western Fisheries, Anacortes, Washington, an election by secret ballot shall be conducted as early as possible but not later than thirty (30) days from the date of this Direction under the direction and su- pervision of the Regional Director for the Nineteenth Region, acting in this matter as agent for the National Labor Relations Board and subject to Article III, Section 9, of said Rules and Regulations, and in accordance with the standards set forth in Section VI of the above Decision, among all employees of Western Fisheries engaged in handling, processing, and canning fish, including warehousing of finished products, excluding executives, supervisory employees, office employees, machinists, machinists' helpers, and the timekeeper, to de- termine whether they desire to be represented by Cannery Workers Union, Local 21173, A. F. of L., or by Anacortes Cannery Workers Union Local 17, C. I. 0., for the purpose of collective bargaining, or by neither; and it is further DIRECTED that, as part of the investigation authorized by the Board to ascertain representatives for the purposes of collective bargaining with Fisherman's Packing Corp., Anacortes, Washington, an election by secret ballot shall be conducted as early as possible but not later than thirty (30) days from the date of this Direction under the di- rection and supervision of the Regional Director for the Nineteenth Region, acting in this matter as agent for the National Labor Re- lations Board and subject to Article III, Section 9, of said Rules and Regulations, and in accordance with the standards set forth in Section. VI of the above Decision, among all cannery and warehouse employees of Fisherman's Packing Corp., including the matron, but excluding supervisory employees, office employees, machinists, machinists' help- ers, and carpenters, to determine whether they desire to be represented by Cannery Workers Union, Local #21173, or by Anacortes Cannery Workers Union Local 17, C. I. 0., for the purposes of collective bar- gaining, or by neither.