Westgate Sea Products Co.

In the Matter Of WESTGATE SEA PRODUCTS COMPANY and UNITED FISH CANNERY WORKERS' UNION, LOCAL #64, C. I. O. Case No. R-1757.-Decided April 22, 1940 Fish Canning Industry-lilq,estulatiorc of Representatives: petition for in- Testigatron and certification dismissed. where no substantial question concerning representation of employees had arisen : existing written collective agreement between employer and intervening union entered into upon basis of consent election result; showing of representation by petitioning union not sufficient to warrant holding election to ascertain representatives. Mr. Alba B. Martin, for the Board. Mr. 1,17. Wade Ambrose, of San Diego, Calif., for the Company. Mr. 7'. R. Rasmussen, of San Diego, Calif., for the C. I. O. Union. Mr. Marshall Ross and Mr. A. M. Petersen, of Los Angeles, Calif., for the A. F. of L. Union. Mr. Bernard W. Freund, of counsel to the Board. DECISION AND ORDER STATEMENT OF 'IHE CASE On December 13, 1939, United Fish Cannery Workers' Union, Local #64, United Cannery, Agricultural, Packing & Allied Work- ers of America, C. I. 0., herein called the C. I. O. Union,l filed with the Regional Director for the Twenty-first Region (Los Angeles, California) a petition alleging that a question affecting commerce had arisen concerning the representation of employees of Westgate Sea Products Company, San Diego, California, herein called the Company, and requesting an investigation and certification of rep- resentatives pursuant to Section 9 (c) of the National Labor Rela- tions Act, 49 Stat. 449, herein called the Act. On February 20, 1940, 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, as amended, ordered an investigation and authorized the Regional Di- 'Designated in the petition as United Fish Cannerv workers ' Union, Local #64, UCAPAWA, C. I O. The record shows that UUC4PAWA is an abbreviation for United Cannery, Agricultural , Packing & killed workers of America 23 N L R B, No 3. 49 50 DECISIONS OF NATIONAL LABOR RELATIONS BOARD rector to conduct it and to provide for an appropriate hearing upon due notice. On March 5, 1940, the Regional Director issued a notice of hearing, copies of which were duly served upon the Company and the C. I. O. Union, and upon Fish Cannery Workers' Union of the Pacific, San Diego Branch, affiliated with the Seafarers' International Union of North America, affiliated with the American Federation of Labor, herein called the A. F. of L. Union, a Libor organization claiming to represent employees directly affected by the investigation. Pursuant to notice, a hearing was held on March 11, 1940, at San Diego, California, before William B. Barton, the Trial Examiner duly designated by the Board. The Board was represented by coun- sel, the Company by its president, the C. I. O. Union by a representa- tive, and the A. F. of L. Union by counsel and by a representative.' All participated in the hearing and were afforded full opportu- nity to be heard, to examine and cross-examine witnesses, and to. introduce evidence bearing on the issues. During the course of the hearing the Trial Examiner made several rulings on motions and on objections to the admission of evidence. The Board has reviewed the rulings of the Trial txaminer, and finds that no prejudicial errors were committed. The rulings are hereby affirmed. At the hearing the A. F. of L. Union moved to dismiss the petition on the ground that no question concerning representation was shown to exist in view of the existence of a contract between the Company and the A. F. of L. Union, and in view of the failure of the C. I. O. Union to establish that a substantial number of employees in the unit alleged to be appropriate had indicated their desire to be represented by the C. I. O. Union for the purpose of collective bargaining. The Trial Examiner did not rule upon the motion to dismiss, but reserved the matter for decision by the Board. For the reasons stated below, the motion is granted. Upon the entire record in the case, the Board makes the following: FINDINGS OF FACT 1. THE BUSINESS OF THE COMPANY Westgate Sea Products Company, San Diego, California, a Cali- fornia corporation , is engaged in the purchase, canning, and sale of tuna fish, mackerel , and sardines, and in the manufacture and sale of fish meal and fish oil . The fish used by the Company in its business are purchased from fishermen , who catch the fish in California waters and in waters outside the territorial limits of the United States. z Copies of the notice of hearing were also served upon Central Labor Council and L A. Industrial Union Council, both of Los Angeles, California Neither of these organiza- tions appeared WESTGATE SEA PRODUCTS COMPANY 51 Purchases of fish by the Company in 1938 and 1939 amounted to approximately $830,000 and $1,992,357, respectively, of which approxi- mately 80 per cent in 1938, and a slightly smaller proportion in 1939, were caught in extra-territorial waters . The Company's gross in- come from sales of its products in foreign countries and States other than. California, amounted. in. 1938 to approximately 92 per cent, and in 1939 to 96 per cent , of its total gross sales income , which aggregated in those years $1,890,000 and $2,000,000, respectively. II. THE ORGANIZATIONS INVOLVED United Fish Cannery Workers ' Union, Local #64, United Canning, Agricultural , Packing & Allied Workers of America, C. I. 0., and Fish Cannery Workers' Union of the Pacific, San Diego Branch, affiliated with the Seafarers' International Union of North America, affiliated with the American Federation of Labor, are labor organiza- tions. Both admit to membership all production and maintenance employees of-the Company,' with the' exception of office and-supervi- sory employees , employees having the power to hire and discharge, and employees specifically given the duty of recommending hire and discharge. HI. THE ALLEGED QUESTION CONCERNING REPRESENTATION In November 1937 a consent election ' was conducted by the Regional Director among the Company's production employees. Of 427 eligible , 276 employees voted; the A. F. of L. Union received 158 votes, the C. I. O. Union 112 votes, and 6 votes were void or challenged. On February 9, 1938, the Company and the A. F. of L. Union -entered into a collective_ agreement for 1 year with respect to the wages, hours , and other terms and conditions of employment of all the employees at the Company's plant except executives, office employees, and employees not eligible for membership in the A. F. of L. Union. The agreement provided that the Company would give preference to members of the A. F. of L. Union, where qualifications were equal , in filling job vacancies and selecting crews; that non- members of the A. F. of L . Union must apply for membership therein within 2 weeks of employment ; and that no employee would be re- quired to work with any employee not an applicant for membership in the A. F. of L. Union, or not a member in good standing. The agreement entered into on February 9, 1938, provided that it be extended for a further year, until February 8, 1940, unless either party gave notice 30 days prior to January 1, 1939 "of a desire to modify . . . and that the terms of such Agreement shall not be extended"; and further provided that it should thereafter be extended from year to year unless such notice vas given 30 days prior to 52 DECISIONS OF NAI101NAL LABOR RELATIONS BOARD December 1 of any year . No notice was given by the A. F. of L. Union or the Company on or before the first terminal date. On January 26 , 1939, after the agreement had by its terms been extended until February 8, 1940, the C. I. O. Union wrote to the Company claiming that it represented a majority of the Company 's employees; and requesting recognition . The Company replied on January 30, 1939, refusing this request for the stated reasons that its contract with the A. F. of L. Union would not expire until 1940, and that a majority of its employees were members of the latter organization. On February 9, 1939, the C. I. O. Union filed with the Regional Director a petition for investigation and certification of representa- tives of the Company's employees . Thereafter, this petition was withdrawn without prejudice by the C. I. O. Union, with the Board's permission. On October 27, 1939, in a letter to the Company , the C. I. O. Union renewed its claim that it represented a majority of the Com- pany's employees , advised the Company not to extend its agreement with the A. F. of L. Union beyond the current expiration date, and requested that negotiations be commenced for a contract between the Company and the C. I. O. Union. On November 14, 1939, the Com- pany, at a meeting with the C. I. O. Union , refused to enter into negotiations with the latter on the grounds that it was under contract to the A. F. of L. Union and that it had no proof of the C. I. O. Union's alleged majority status . On December 13, 1939, the C. I. O. Union filed the petition instituting the instant case, upon which the hearing was held on March 11, 1940. Meanwhile neither the Coin- pany nor the A. F. of L. Union gave the notice of termination specified in their agreement , and the agreement by its terms , there- fore, became automatically extended until February 8, 1941. Both the Company and the A. F. of L. Union asserted at the hearing that the agreement was in force . In fact several disputes as to its ap- plication had arisen and had been settled by them after February 9, 1940, the renewal date; and, at the time of the hearing , negotiations between the parties with respect to the interpretation of the overtime provisions of the agreement were in progress. At the hearing, a copy of the Company's pay roll for the week ending December 30, 1939, which the president of the Company tes- tified was the peak pay-roll period for the past year, was admitted in evidence. Records of the A. F. of L. Union were produced, con- sisting of cards which , according to the testimony of its secretary- treasurer, bore the names of employees of the Company who are members of the A. F. of L. Union; and lists of names, identified by this witness as compilations from the cards , were admitted in evi- dence without objection. The authenticity of the records and the WESTGATE SEA PRODUCTS COMPANY 53 accuracy of the lists were not questioned. A check of the lists against the Company's pay roll discloses that, of the approximately 331 per- sons in the appropriate unit 3 who were employed during the week ending December 30, 1939, approximately 249 were members of the A. F. of L. Union on November 1, 1939, 260 on December 30, 1939,' and 272 at the time of the hearing. The names of approximately 45 employees not appearing on the pay roll are also contained in the lists, of whom the membership of the A. F. of L. Union included approximately 42 on November 1, 1939, 43 on December 30, 1939, and 45 at the time of the hearing. At the hearing the C. I. 0. Union took the position that it would not disclose the names of its members upon the record because the Company at the instance of the A. F. of L. Union had discharged employees not in good standing in the latter organization. Nor did the C. I. 0. Union offer to make any of its records available to the agents of the Board for a comparison with the Company's pay roll in evidence. Instead, to support its representation claim, the C. I. 0. Union relied upon the testimony of its secretary-treasurer and its local organizer that it had about 160 members employed at the Com- pany's plant on November 1, 1939, and about 194 at the time of the hearing. However, their testimony does not disclose when this num- ber were "signed up," except that the signatures were obtained be- ginning in November 1938, more than a year before the petition was filed. Moreover, approximately 45 or 55 of them were "signed up," according to the testimony, by volunteer organizers and neither witness indicated any personal knowledge as to the employment of these members by the Company. Furthermore, it appears from testi- mony of both witnesses that for the most part their statements as to the employment of members by the Company were based solely upon what they had been told by the members.5 We are of the opinion that, under all the circumstances of this case, the showing of representation by the C. I. 0. Union is not sufficient to warrant our holding representatives. an election to ascertain 3 The Company and the unions involved were in agreement as to the appropriate unit, but the unions differed as to whether five named employees came within a classification of employees exc:uded from the unit agreed upon For purposes of the tabulation in the text, we have counted these five employees as included in the unit 4 The secretary-treasurer of the A F. of L Union testified that the names of approxi- mately 30 to 40 members Rho left the Company's employ between November 1, 1939, and the time of the hearing were cmitted from the records produced at the heating and from the membership lists in eudence Tcere is no e\ idence as to how many of these employees i+orked during the week ending December 30, 19:39 BCf Matter of General Electric Company and The G. E Industrial Union of The Itrmdgepoi t Works, Incorporated, 15 N L It B 1018 283034---41-vol 23-5 54 DECISIONS OF NATIONAL LABOR RELATIONS BOARD We find that no question concerning the representation of em- ployees of the Company exists. Accordingly, the petition of the C. I. O. Union will be dismissed. CONCLUSION OF LAW No question concerning the representation of employees of West- gate Sea Products Company, San Diego, California, exists within the meaning of Section 9 (c) of the National Labor Relations Act. ORDER Upon the basis of the foregoing findings of fact and conclusion of law, the National Labor Relations Board hereby dismisses the pe- tition for investigation and certification filed by the United Fish Cannery Workers' Union, Local #64, United Canning, Agricultural, Packing & Allied Workers of America, C. I. O.