Abinante & Nola Packing Co.

In the Matter of ABINANTE & NOLA PACKING CO.,1CALIFORNIA PACK- ING CORPORATION, CALIFORNIA PRUNE AND APRICOT GROWERS ASSOCIATION, C. L. DICK & COMPANY, GUGGENHIME'& COMPANY, HAMLIN AND COMPANY, LIBBY, MCNEILL & LIBBY, MAYFAIR PACKING COMPANY, RICHMOND-CHASE COMPANY, J. S. ROBERTS, ROSENBERG BROS. & CO., WARREN DRIED FRUIT CO., WINCHESTER DRIED FRUIT COMPANY and WAREHOUSEMEN'S UNION, LOCAL 1-6, I. L. W. U. Cases Nos. C-1456 and R-1580-Decided August 24, 1940 Jurisdiction : dried fruit packing and shipping industry. Unfair Labor Practices Interference, Restraint, and Coercion: anti-union statements; declarations of union preference; interrogation concerning union activities; interference in the forma- tion or administration of a labor organization and contribution of support thereto; threatened discharge of employees; interference with right of collective bargaining; privileges accorded and favoritism shown to one of two rival legiti- mate labor organizations; conducting employee elections; contract restraining rights of employees. Discrimination: charges of discrimination, dismissed. Collective Bargaining: charges of refusal to bargain collectively, dismissed. Remedial Orders Respondents ordered to withhold exclusive recognition, pending results of election to be ordered in the future, from union found company-assisted and to withhold recognition from said assisted organization as representative of any of their employees unless similar recognition be granted rival unions. Investigation and Certification of Representatives : existence of question; election necessary. Question found to exist where the petitioning union demanded exclusive recognition and submitted designation signed by a majority, but the em- ployers refused such recognition, until the union be certified by the Board, because of previous bargaining relations with a rival union which still claimed exclusive bargaining rights, and because a substantial number of employees were shifting their allegiance back and forth between the petitioning union and its rival. Unit Appropriate for Collective Bargaining : all employees of all respondents, employed in the respondents' dried-fruit packing plants in Santa Clara and San Benito Counties, except officers, executives, clerical and other office em-' ployees, and all persons having power of hire or discharge. 111r. Earle K. Shawe and Mr. Jonathan H. Rowell, for the Board. Mr. W. W. Jacka and 111r. J. Paul St. Sure, of San Jose, Calif., for the respondents. 26 N. L. R. B., No. 119. 1288 ABINANTE & NOLA PACKING CO. 1289 Gladstein, Grossman and Margolis, by Mr. Ben Margolis, of San Francisco, Calif.; Mr. Joseph Kovner, of Washington, D.- C.; Mr. Earl T. Baker, of San Jose, Calif.; and Mr. Raymond Heide, of Oak- land. Calif., for Local 1-6. Mr. Charles J. Janigian, of San Francisco, Calif.; Mr. I. B. Padway, of San Francisco, Calif., by Mr. Joseph Padway, of Washington, D. C.; and Mr. Herbert S. Thatcher, of Washington, D. C., for Union No. 21084 and the Federation. Mr. George Turitz, of counsel to the Board. DECISION ORDER AND DIRECTION OF ELECTION STATEMENT OF THE CASE Upon charges and amended charges duly filed byWarehousemen's Union, Local 1-6, International Longshoremen's and Warehousemen's Union, herein called Local 1-6, the National Labor Relations Board, herein called the Board, by the Regional Director for the Twentieth Region (San Francisco, California) issued its complaint dated July 1, 1939, against the following respondents: S. R. Abinante and Frank S. Nola, copartners doing business under the firm name Abinante & Nola Packing Co., herein called Abinante; California Packing Corporation, herein called California Packing; California Prune and Apricot Growers Association, herein called the Growers 'Association; C. L. Dick & Company, herein called Dick; Guggenhime & Company, herein called Guggenhime; Hamlin and. Company, herein called Hamlin; Libby, McNeill & Libby, herein called Libby; Joseph P. Perrucci and F. L. DiNapoli, copartners doing business under the firm name Mayfair Packing Company,,herein called Mayfair; Rich- mond-Chase Company, herein called Richmond-Chase; J. S. Roberts; Rosenberg Bros. & Co., herein called Rosenberg; C. D. Stevens, doing business under the firm name Warren Dried Fruit Co., herein called Warren; and Winchester Dried Fruit Company, herein called Winchester.' The complaint alleged that the said respondents and each of them had engaged in and were engaging in unfair Tabor practices affecting commerce,, within the meaning of Section 8 (1) and (5) and Section 2 (6) and (7) of the National Labor Relations Act, 49 Stat. 449, herein called the Act.. I The names by which several of the respondents were designated in the captions of the complaint and notices of hearing were incorrect in certain immaterial .respects. 1290 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On June 20, 1939, Local 1-6 filed with the Regional Director an amended petition alleging that a question affecting commerce had arisen concerning the representation of employees of the respondents and requesting an investigation and certification of representatives pursuant to Section 9 (c) of the Act. On June 29, 1939, the Board, acting pursuant to Section 9 (c) of the Act and Article III, Section 3 and Section 10 (C) (2), and Article II, Section 37 (b), of National Labor Relations Board Rules and Regulations-Series 1, as amended, ordered an investigation of the question concerning representation and authorized the Regional Director to conduct it and to provide for an appropriate hearing upon due notice, and further ordered that for the purposes of hearing and for all other purposes the two cases be consol- idated and that one record of the hearing be made. Copies of the complaint, accompanied by notice of hearing thereon and copies of the amended charge, and copies of the petition ' and of the notice of hearing thereon, were duly served upon each of the respondents, upon Local 1-6, upon Dried Fruit and Nut Packers Union No. 21084 of Santa Clara County, California, herein called Union No. 21084, a labor organization having an interest in these proceedings.2 With respect to the unfair labor practices the complaint, as amended at the hearing,' so far as here material, alleged in substance: (1) that during the period beginning approximately August 1937 and continu- ing down to and including the date of the issuance of the complaint, the respondents and each of them entered into a common and mutual plan and course of action for the purpose of interfering with the self- organization and freedom of choice of representatives of their respec- tive employees and for the purpose of organizing among the said employees, through the California State Federation of Labor, herein called the Federation, Union No. 21084, which would be controlled by and subservient to the said respondents and each of them; (2) that in furtherance of the said plan and course of action the respondents and each of them, during the month of August 1937 and thereafter, interfered with, influenced, controlled and assisted the formation, organization, and administration of Union No. 21084 in certain speci- fied ways; (3) that in furtherance of the said plan and course of action the respondents and each of them, during the month of August 1937 and thereafter, contributed financial support to the officers, agents, 2 Copies of the said papers were also served upon Mr. I. B: Padway and Gladstein , Grossman & Margolis, attorneys who subsequently appeared in these proceedings on behalf of Union No. 21084 and California Federation of Labor, and of Local 1 -6, respectively. 3 The Trial Examiner , in granting a certain motion by counsel for the Board to amend paragraphs 17, 18, 19, 20, 21, 24, and 27 of the complaint , and in referring to such ruling in his Intermediate Report hereinafter mentioned, specifically referred to each paragraph so amended except paragraph 20. However, the Trial Examiner ruled generally that the motion made by counsel for the Board was granted , and it is clear that failure specifically to mention the amendment of paragraph 20 was not intended to exclude said paragraph from the scope of the order granting the motion. ABINANTE & NOLA PACKING Co. 1291 and representatives of Union No. 21084 and in other ways aided, assisted, and contributed support to its formation and administra- tion; (4) that since April 20, 1939, at which time a majority of the members of Union No. 21084 became members of Local 1-6, the respondents and each of them, in furtherance of the said plan and course of action, have interfered with the self-organization of their employees and in their freedom of choice of representatives, thereby assisting Union No. 21084, in that the respondents and each of them have urged, persuaded and warned their employees to surrender their membership in Local 1-6 and to join and assist Union No. 21084 and have threatened their employees with loss of employment if they refused or failed to do so, and in that the respondents and each of them have bargained and are continuing to bargain collectively with Union No. 21084 as the exclusive representative of employees of the respondents in an appropriate unit, notwithstanding the fact that on April 21, April 27, May 12, June 12, and June 15, 1939, the respond- ents and each of them were informed that Local 1-6 was the represent- ative of the said employees; (5) that on May 12, June 15, and June 30, 1939, and at all times thereafter the respondents and each of them, in furtherance of the said plan and course of action, refused and have refused to bargain collectively with Local 1-6 as the exclusive repre-. sentative of employees of the respondents in an appropriate unit, although on and before and at all times since such dates Local 1-6 was and has been the exclusive bargaining representative of all such employees by virtue of having been designated by a majority of such employees as their representative for the purposes of collective bar- gaining with the respondents; (6) that in furtherance of the said plan and course of action the respondent Guggenhime, during the month of August 1938 and continuously thereafter, refused or failed, and now refuses or fails, to reinstate to his regular position James F. McCauley, one of its employees, because he attempted to free Union No. 21084 from the interference, influence and control of the respondents and to transform Union No. 21084 into a bona fide labor organization free from such interference, influence, and control, and because he engaged in concerted activities with other employees of the respondents for. the purposes of collective bargaining and other mutual aid and pro- tection; and (7) that in furtherance of the said.plan and course of action the respondent Hamlin, during the month of June 1938 dis- charged and continuously thereafter refused or failed, and now refuses or fails, to reinstate to his regular position Raymond Gullo, one of its employees, because he attempted to free Union No. 21084 from the respondents' interference, influence, and control, and to transform Union No. 21084 into a bona fide labor organization free from such interference, influence, and control, and because he engaged in con-. 1292 DECISIONS OF NATIONAL LABOR RELATIONS BOARD certed activities with other employees of the respondents for the purposes of collective bargaining and other mutual aid and protection. On July 10, 1939, the respondents filed their separate answers, which were amended at the hearing. The said answers, as amended, each admitted the appropriateness for collective bargaining of the' unit described in the complaint and admitted that Local 1-6 on May 12, June 15, and June 30, 1939, had requested the respondents and each of them to bargain collectively with Local 1-6 as the exclusive representative of the respondents' employees in such unit, but other- wise they denied all the material allegations of the complaint with .respect to the unfair labor practices. Each of the said answers affirmatively alleged that the respondent filing it had never refused to bargain with the representatives of its employees; that on or before May 12, 1939, such respondent was negotiating with Union No. 21084, which it believed to be the representative of the majority of its employees, and that after said date such respondent continued to bargain collectively with said union and was still so bargaining; and that such respondent had notified all other persons and organizations claiming to represent a majority of its employees that it. would not bargain collectively with any organization other than Union No. .21084 until and unless it was established that Union No. 21084 no longer represented a majority of the employees of the said respondent and that some other organization or that no organization represented the majority of such employees. The answer of the respondent Guggenhime further alleged that McCauley had resigned his position with said respondent in order to.become an officer of Union No. 21084 and had thereafter left the State of California, and that on returning to said State he was offered reemployment by the said respondent but refused to accept it. The answer of the respondent Hamlin further alleged that Gullo had part time employment with the respondent during the first part of the year 1938; that in June 1938 Gullo absented himself for a time and was not available when the said respondent required his services and another person was employed to do the required work; that Gullo, finding his place filled by another person, complained to Union No. 21084 that his seniority rights had been breached; but that Union No. 21084 stated that he had lost his senior- ity rights because of non-payment of clues and should be given no preference of employment. On July 17, 1939, at the hearing hereinafter mentioned, the Federa- tion and Union No. 21084 filed their respective motions to intervene in these proceedings. In their said motions the Federation and Union No. 21084 stated that the complaint might by inference indicate falsely that the Federation and the respondents were parties to a conspiracy so to organize Union No. 21084 that it would be subservient ABINANTE & NOLA PACKING CO. 1293 to and controlled by the respondents and not function as a bona fide labor organization, and they denied such inference. The motion of Union No. 21084 further stated that the complaint might by inference indicate falsely that Union No. 21084 since the time of its organiza- tion and to date was controlled by and subservient to the respondents, and denied such inference. The motion of Union No. 21084 further denied that Union No. 21084 was organized at the instigation and with the assistance of the respondents for the purpose of being con- trolled by and subservient to them, denied that Local 1-6 represented a majority of the respondents' employees in the bargaining unit des- cribed in the complaint, and affirmatively alleged that Union No. 21084 is and since August 1937 has been the representative of the majority of such employees. Pursuant to notice, a hearing was held at San Jose, California, from July 17 to August 4 and on August 11, 1939, before J. J. Fitz- patrick, the Trial Examiner duly designated by the Board. The Board, the respondents, Local 1-6, Union No. 21084, and the Federa- tion were represented by counsel and participated in. the hearing. At the beginning of the hearing Union No. 21084 and the Federation filed with the Trial Examiner the motions for leave to intervene described above. The Trial Examiner granted the motions and ordered that the said interveners be permitted to appear. and offer evidence as to any of the matters affecting their respective interests as they appeared in the formal pleadings. 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 com- mencement of the hearing the respondents moved to strike from the complaint paragraph 26 thereof, which alleged that Local 1-6 repre- sented a majority of the employees, on the ground that such allegation assumed the existence of the ultimate fact sought to be established in the representation proceeding; and the interveners moved to strike from paragraph 17 of the complaint the allegation that the plan referred to in the said paragraph was entered into for the purpose of organizing among the respondents' employees, through the Federation, Union No. 21084, which would be controlled by and subservient to the respondents and each of them, on the ground that the charges on which the complaint was based made no reference to such allegations. The Trial Examiner denied these motions. At the close of the Board's case and again at the conclusion of the hearing the Trial Examiner granted motions by counsel for the Board that the com- plaint be amended so as to conform to the proof, with respect to clerical errors, dates, and names. At the conclusion of all the testi- mony the interveners moved to dismiss the complaint, except with respect to the allegations of discrimination against McCauley and 1294 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Gullo. The respondents joined in said motion, and also moved to dismiss the complaint in all respects for failure of proof. Ruling on these motions was reserved by the Trial Examiner. During the course of the hearing the Trial Examiner made various other rulings, including rulings on objections to the admission of evidence. The Board has reviewed all the foregoing rulings and finds that no prej- udicial errors were committed. The rulings are hereby affirmed. Local 1-6 and the interveners submitted briefs to the Trial Examiner. On or about December 29, 1939, the Trial Examiner filed his Inter- mediate Report, copies of which were duly served upon each of the respondents, upon Local 1-6, and upon the interveners, in which he denied the respondents' and interveners' said motions to dismiss the complaint, and found that the respondents and each of them had engaged in and were engaging in unfair labor practices affecting com- merce within. the meaning of Section 8 (1) and (5) and Section 2 (6) and (7) of the Act. He recommended that the respondents cease and desist from their unfair labor practices and take certain action to remedy the situation brought about thereby, and that the respondent Guggenhime reinstate McCauley and the respondent Hamlin reinstate Gullo to their respective former positions, with back pay. On January 29, 1940, the respondents filed exceptions to the Intermediate Report. On February 8, 1940, the interveners filed exceptions to the Intermediate Report and on February 9, 1940, filed supplemental exceptions to the Intermediate Report and re- quested oral argument. In support of the supplemental exceptions the interveners submitted an affidavit by one Elizabeth Taylor, duly verified January 8, 1940. The respondents and the interveners also submitted briefs in support of their exceptions, and Local 1-6 sub- mitted a reply brief, attached to which was an affidavit by Earle Baker, duly verified February 21, 1940, in reply to the above- mentioned affidavit of Elizabeth Taylor.4 On May 21, 1940, pursuant to notice, a hearing was held before the Board in Washington, D. C., for the purpose of oral argument. Local 1-6, Union No. 21084, and the Federation were represented by counsel and participated in the hearing. The Board has considered the exceptions, supplemental exceptions, the briefs which have been filed and the oral argument, and, in so far as the exceptions are inconsistent with the findings, conclusions, and order set forth below, finds them to be without merit. Upon the entire record in the case, the Board makes the following: 4 The said affidavits of Elizabeth Taylor and Earle Baker, which related to alleged changes of designation of bargaining agent by certain employees after the close of the hearing, have not been considered by us in this Decision. ABINANTE & NOLA PACKING CO. 1295 FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENTS The respondents are separately engaged in the processing and packing of dried fruits and fruit products, and in the warehousing, sale, and distribution thereof, and all operate one or more plants for such purposes within the territory embraced by the contiguous counties of Santa Clara and San Benito, in the State of California. The business of the respondents constitutes almost the entire dried fruit industry in-the said territory, which is one of the largest dried fruit areas in the world. This case is concerned only with the 33 dried fruit plants of the respondents located in the said 2 counties, all within a radius of 50 miles of each other. Substantially all the products packed and processed by the respondents at the said plants are obtained by them from sources within the State of California. Abinante & Nola Packing Co. is the firm name used by a partner- ship composed of S. R. Abinante and Frank S. Nola, who operate a dried fruit plant in the Town of Cupertino, Santa Clara County. The principal products processed or packed at the said plant are apricots and prunes. During the last fiscal year prior to the hearing the products of the said plant amounted-to approximately 2,000 tons, valued at approximately $150,000, about 99 per cent of which were shipped by.the said respondent from the plant mentioned to points outside the State of California. California Packing Corporation is a New York corporation, oper- ating the following dried fruit plants within Santa Clara and San Benito Counties: Plants Nos. 51, 54, and 153 in San Jose, Santa Clara County, Plant No. 55 in Gilroy, Santa Clara County, and Plant No. 88 in Hollister, San Benito County. The principal products processed or packed at the said plants are prunes, apricots, pears, .peaches, raisins, apples, and apricot pits. During the last fiscal year prior to the hearing the products of its said plants amounted to approximately 29,390 tons, valued at approximately $3,023,500, about 96 per cent of which were shipped by the said respondent from the plants mentioned to points outside the State of California. California Prune and Apricot Growers Association is a California corporation, operating the following dried fruit plants within Santa Clara and San Benito Counties: Plant No. 1 in Campbell, Santa Clara County; Plant No. 2 in Morgan Hill, Santa Clara County; Plant No. 3 in Gilroy, Plant No. 9 in Hollister, and Plants Nos. 6, 10, 11, 17, and 70, and the Machine Shop, in San Jose. The principal products proc- essed or packed at the said plants are prunes, apricots, peaches, and mixed fruits. During the last fiscal year prior to the hearing the products of its said plants amounted to approximately 95,000 tons, .1296 DECISIONS OF NATIONAL LABOR RELATIONS BOARD valued at approximately $9,500,000, about 90 per cent of which were shipped by the said respondent from the plants mentioned to points outside of the State of California. C. L. Dick & Company is a California corporation operating a dried fruit plant in San Jose. The principal products processed or packed at its said plant are prunes. During the last fiscal year prior to the hear- ing the products of its said plant amounted to approximately 2,300 tons, valued at approximately $197,000, about 95 per cent of which were shipped by the said respondent from the plants mentioned to points outside the State of California. Guggenhime & Company is a Delaware corporation, operating a dried fruit plant in San Jose and one in Hollister. The principal products processed or packed at its said plants are prunes, apricots, peaches, apples, pears, cherries, nectarines, figs, silver prunes, cherry stems, and apricot kernels. During the last fiscal year prior to the hearing the products of its said plants amounted to approximately 15,761 tons, valued at approximately $1,600,000, about 96.63 per cent of which were shipped by the said respondent from the plants men- tioned to points outside the State of California. Hamlin and Company is a California corporation operating two dried fruit plants in San Jose. The principal products processed or packed at its said plants are prunes, apricots, and pears. During the last fiscal year prior to the hearing the products of its said plants amounted to approximately 2,500 tons, valued at approximately $150,- 000, about 90 per cent of which were shipped by the said respondent from the plants mentioned to points outside the State of California. Libby, McNeill & Libby is a Maine corporation, operating a dried fruit plant in the City of Santa Clara. The principal products proc- essed or packed at its said plant are apricots, peaches, and prunes. During the last fiscal year prior to the hearing the products of its said plant amounted to approximately 6,346 tons, valued at approxi- mately $800,828.32, about 95 per cent of which were shipped by the said respondent from the plants mentioned to points outside the State of California. Mayfair Packing Company is the firm name used by a partnership composed of Joseph P. Perrucci and F. L. DiNapoli and operating a dried fruit plant' in San Jose.' The principal products processed or packed at its said plant are prunes, apricots, and pears. During the last fiscal year prior to the hearing the products of its said plant amounted to approximately 15,000 tons, valued at about $950,000, approximately all of which were shipped by the said respondent from the plants mentioned to points outside the State of California. 5 This respondent was formerly known as Martine Packing Company. ABINANTE & NOLA PACKING co. 1297 Richmond-Chase Company is a California corporation, operating the following dried fruit plants within Santa Clara and San Benito Counties: Plant No. 1 in Edenvale, Plant No. 2 in San Jose, Plant No. 5 in Gilroy, and Plant No. 9 in Mountain View. The principal prod- ucts processed or packed at the said plants are prunes, apricots, peaches, and pears. During the last fiscal year prior to the hearing the products of its said plants amounted to approximately 12,500 tons, valued at about $1,500,000, approximately all of which were shipped by the said respondent from the plants mentioned to points outside the State of California. J. S. Roberts is an individual operating a dried fruit plant in San Jose. The principal products processed or packed at the said plant are prunes, apricots, peaches, and pears. During the last fiscal year prior to the hearing the products of his said plant amounted to approxi- mately 1,750 tons, valued at approximately $80,000, about 99 per cent of which were shipped by the said respondent from the plant men- tioned to points outside the State of California. Rosenberg Bros. & Co. is a California corporation operating a dried fruit plant in the City of Santa Clara and one in Hollister. The principal products processed or packed at the said plants are prunes, apricots, peaches, pears, walnuts, and apricot kernels. During the last fiscal year prior to the hearing the products of its said plants amounted to approximately 33,000 tons, valued at approximately $3,859,232; about 95 per cent of which were shipped by the said respond- ent from the plants mentioned to points outside the State of California. Warren Dried Fruit Co. is the firm name used by C. D. Stevens, its sole owner, who operates a dried fruit plant at San Jose. The principal products processed or packed at the said plant are prunes. During the last fiscal year prior to the hearing the products of the said plant amounted to approximately 4,000 tons, valued at about $275,000, approximately all of which were shipped by the said respondent from the plant mentioned to points outside the State of California. Winchester Dried Fruit Companiy is a California corporation oper- ating a dried fruit plant in San Jose and one in Campbell. The principal products processed or packed at the said plants are prunes, apricots, pears, and peaches. During the last fiscal year prior to the hearing the products of the said plants amounted to approximately 3,000 tons, valued at about $116,693.39, approximately all of which were shipped by the said respondent from the plants mentioned to points outside the State of California. Each of the respondents admitted causing and having, over a long period of time, caused large quantities and substantial proportions of the products processed and packed at its above-mentioned -plants to 1298 DECISIONS OF NATIONAL LABOR RELATIONS BOARD be sold and transported in interstate and foreign commerce from the said plants to, into, and through States and territories of the United States other than California, and to foreign countries. II. THE ORGANIZATIONS INVOLVED Warehousemen's Union, Local 1-6, International Longshoremen's and Warehousemen's Union, is a labor organization affiliated through its parent body, International Longshoremen and Warehousemen's Union, with the Congress of Industrial Organizations, herein called the C. I. 0., and admitting to its membership employees of the respondents. Dried Fruit and Nut Packers Union. No. 21084 of Santa Clara County, California, is a labor organization chartered as a Federal labor union by the American Federation of Labor, herein called the A. F. of L., and admitting to its membership employees of the respondents. California State Federation of Labor is a labor organization com- posed of California locals of National and International unions affili- ated with the A. F. of L., and of A. F. of L. Federal labor unions located in California. III. THE UNFAIR LABOR PRACTICES A. The background In about 1933 employees at Plant No. 11 of the respondent Growers Association were organized into a union which was granted a charter by the American Federation of Labor. Four employees were dis- charged, and the old National Labor Relations Board, finding that such discharge had been caused by their union activities, brought about their reinstatement. The labor organization involved eventually became defunct. Prior to August 1937 Earle T. Baker, an employee at Growers Association Plant No. 6, discussed with several other employees the idea of organizing the Growers Association plants under the old charter. He mentioned the idea to the general superintendent of all the plants of the Growers Association in the State,' and asked if the Association would post notices on the plant bulletin boards stating that it would not interfere with the organization of the employees or discriminate against any of them. The general superintendent took the matter up with Kluge, the assistant manager of the Growers Association, but got no answer from him. The general superintendent told Baker that he intended to discuss the question with the higher officials of this respondent, and possibly with representatives of other employers in 6 Edward Barker. ABINANTE & NOLA PACKING CO. 1299 the dried fruit industry, but Baker heard no more concerning the matter. In the latter part of July 1937 one Patrick Bocca was sent by an A. F. of L. union for the dried fruit industry, located in Oakland, California,' to organize the employees in the industry in the Santa Clara County area. He started organizing in the Santa Clara plant of the respondent Rosenberg, and succeeded in enrolling d number of members. A preliminary meeting was held, officers were elected., and application was made to the A. F. of L. in Washington for a charter. B. Interference, restraint, and coercion News of the organizational activities at the Rosenberg plant was published in a San Jose newspaper 8 on July 30, 1937, and came to the attention of the respondents, who discussed the matter with each other. This discussion took place at meetings of a body known as the "Field Practice Group," which had as members the respective managers of the various respondents, and which held frequent meetings for the purpose of discussing problems relating to the dried fruit industry.' The Field Practice Group thought it advisable, if a union was to be organized, that it be affiliated with the A. F. of L., rather than its rival, the C. I. 0.10 and "that all possible speed must be used in effecting this -organization because they feared that the C. I. 0. might come in here if they heard of it, attempting to organize, and create considerable trouble." They came to the conclusion, however, that Bocca's efforts were "the wrong way to approach this matter," feeling one of its members stated, that if a union was going to be organized they "would like to have it done in all of the plants," thus promoting "a more harmonious relationship between the employers and the employees." Accordingly, the Field Practice Group instructed Ed Richmond, president of Richmond-Chase, to interview Edward Vandeleur, secretary of the Federation, on behalf of the Group, concerning Vandeleur's sending an organizer to San Jose to carry on the organi- zational work. Richmond communicated with Vandeleur and reached an understanding with him, whereupon, on or at some time shortly before August 3, Vandeleur sent one Howard Reed, an organizer 7 Dried Fruit and Nut Packers Local 20,020. 8 The San Jose News. This paper was circulated in the general vicinity of San lose, the center of which is only 3 miles from Santa Clara. Y The findings in this section relating to the instigation of Union No. 21084 are based primarily upon the testimony of James E. McCauley, the first president of the organization, who derived his knowledge from James Blaurock, the district manager of the respondent Guggenhime and its representative at the meetings of the Field-Practice Group above mentioned. This testimony, as well as the testimony of McCauley and other witnesses on which are based the findings herein relating to the formation of Union No. 21084. the assistance rendered it by the various respondents , and the respondents ' interference in its affairs, is undenied and is corroborated by other facts. 10 The C . I. O. was then known as Committee for Industrial Organization. 1300 DECISIONS OF NATIONAL LABOR RELATIONS BOARD employed by the Federation, to take charge. Reed and Vandeleur immediately telegraphed to the office of the A. F. of L. in Washington requesting that the charter applied for by the Rosenberg employees, referred to above, be held in abeyance. The charter was not issued. Vandeleur stated a short time later that he had wanted the entire dried fruit industry organized and that he had "knocked over" the charter in question, "other arrangements" having been "in the making" at that time. On or about August 3, 1937, in the morning, the Field Practice Group met with Reed and one Thomas Randazzo, a San Jose attorney in whose offices Reed established his headquarters. The Field Practice Group and Reed agreed that the employees should all become members of the A. Y. of L. and that they should do so as quickly as possible, because they did not want the C. I. O. to come in and organize. They decided that the respondents would select a group of their respective employees to act as an organizing committee, and that the members of that committee would in turn choose fellow employees to assist them. On that same day the six respondents owning the larger dried fruit packing plants,11 all of which were located in the cities of San Jose and Santa Clara, selected their respective representatives for the organizing committee and sent them to Reed to obtain instructions.12 The committee so chosen consisted of James F. McCauley, of Guggenhime; Walter Baum of California Packing Plant No. 51; Olga Sibona 13 and J. N. Groves, of Rosenberg; John Rampone, of Richmond-Chase Plant No. 2; George Songer and Velma Gorden, of Growers Associa- tion Plant No. 11; and Robert Bonn, of Libby.14 The members of the committee met at Reed's office that afternoon and again the next morning.15 Each reported to Reed that he had been sent by his employer to obtain membership application blanks and receive in- structions how to proceed to organize the plants, and Reed and Randazzo indicated that they had expected the committee members. Reed told them that the Federation intended to organize the plants speedily lest the C. I. O. do so and thwart their action. Pointing out that the committee members had been selected by their respective employers, he assured them that they "would have the free run of the plants" for organizing and that they could do the organizing during working hours. He instructed them to appoint from among their fellow-employees any assistants needed, saying that arrange- 11 These respondents were known as "The Big Six." 12 The selection of these organizers , as well as the selection of organizers for the smaller plants , which took place later, is discussed below. 13 Sibona testified at the hearing under her married name, Sincich. 14 Several other employees , including Jack Olivera, of Rosenberg, also appeared at Reed's office at various times. Presumably they were appointed in the same manner as the original eight. 15 McCauley who had also reported to Reed on the morning of the first day, had organized his plant prior to the first afternoon meeting. ABINANTE & NOLA PACKING CO. 1301 ments had been made with the respondents to let the employees doing the organizational wort: have time oft for the purpose, and that no one would lose any time or pay while so engaged. He showed the committee members how to fill out the application blanks and cash receipts which he provided and told them that arrangements would be made to deduct initiation fees and first month's dues from the pay checks of employees without the necessary funds. Randazzo furnished forms for applicants to fill out authorizing such deductions. Reed submitted to the A. F. of L. a telegraphic application for a charter, and on August 4, 1937, the charter was issued to the eight organizers named above. The members of the committee returned to their respective plants and within a few days, as a result of exten- sive activities which are discussed below, organized a large majority of their fellow employees. In Union No. 21084's first election, held on August 11, McCauley was elected president and Earle Baker, of Growers Association Plant No. 6, was elected secretary-treasurer. Both quit their jobs on taking office. On about August 22 McCauley suggested to Vandeleur that since Union No. 21084 was about to enter into wage negotiations, it should organize the remaining plants. Vandeleur approved and instructed McCauley to consult Richmond who, he said, would make the necessary arrangements and put McCauley. in touch with people in the various plants who would make such organization possible. On about August 24 McCauley and Baker interviewed Richmond and informed him of Union No. 21084's purpose. Richmond told them to see certain officials of the respondents in question, generally the company heads or the superintendents, -and instructed them to consult him again if they encountered any difficulty. The two men proceeded as instructed and by October 1937 Union No. 21084 had approximately 2500 members, equivalent to about 98 per cent of the non-supervisory employees, in the respective dried fruit plants of the respondents located in Santa Clara and San Benito Counties. Shortly after their election the officers of Union No. 21084 entered into collective bargaining negotiations with a committee representing the various respondents which, through the committee, assured representatives of the said union that the respondents wanted Union No. 21084 perpetuated and would therefore adopt the policy of assisting it in the collection of clues and in enrolling new members, and "would shut their eyes to the methods" used by Union No. 21. 084 "as long as they could stay legally clear" in what was done. We shall now discuss the manner in which each of the respondents individually carried out the plan an([ course of action agreed upon by the Field Practice Group. 323429-42-83 1302 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Guggenhime. Upon his return to the plant from the Field Practice Group's meeting with Reed, James Blaurock, the district manager of Guggenlime, summoned from his work James F. McCauley, who was, the head mechanic and one of the best paid employees in the plant, and informed him of the events at the recent meetings of the Field Practice Group. Blaurock, who was the highest Guggenhime official in Santa Clara and San Benito Counties, having full charge of all operations in that area, asked McCauley to take charge of the or- ganization of the Guggenhime employees and, receiving McCauley's consent, directed him to report to Reed for instructions. McCauley's visits to Reed's office have already been discussed above. After receiving his instructions together with membership application and receipt blanks on his first visit to Reed's headquarters, McCauley reported to Blaurock what had occurred. Blaurock said, "That is good; now, it is up to you." As to Reed's suggestion that McCauley select assistants, Blaurock referred McCauley to Superintendent Morrella. Blaurock assured McCauley that the respondent would continue to pay him while he did the organizational work, and that the employees who assisted him would lose no" time" while doing so. Morrella called from their work four employees selected as assistants by McCauley, 16 who explained to them Blaurock and Reed's instruc- tions and told them that Blaurock had assured him that they would lose no "time" as a result of aiding in the campaign. At least three 17 of the four were supervisory employees.'8 That noon McCauley explained the organizational campaign to the plant employees, whom Morrella had assembled for that purpose at his request, and told them who his assistants were. He stated that Guggenhime was anxious to have everyone except engineers join Union No. 21084 and to have the organization completed promptly and that since it was too big a job to communicate with the employees at their homes, it would be necessary to organize during working hours. The meeting was attended throughout by Superintendent Morrella and the depart- 16 The four assistants were Puccinelli, Clarence Bogliolio, Fred Keller, and Mrs. Enfintino. 17 Puccinelli, Bogliolio, and Keller. r6 The respondents and the interveners contend that it is immaterial that supervisory employees partici- pated in organizational activity. The record shows that supervisory employees, particularly the minor ones, were active in both Union No. 21084 and Local 1-6, and that their participation in such activity was not necessarily on their employers' behalf and did not in itself necessarily indicate their employers ' approval of their activity or of the organizations involved. Indeed, at least one respondent-California Packing- objected to its departmental foreman joining Union No. 21084. However, even though, as asserted, the minor supervisory employees participated in organizational activities on behalf of both labor organizations, such supervisory employees' activity on behalf of Union No. 21084 upon the respondents' express directions and accompanied by other manifestations of their approval of the organization render the respondents chargeable with their acts. Moreover, apart from the minor supervisory status of these employees, the fact that their acts were taken at the respondents' express direction and request makes them the respondents' agents for the purpose and their acts are attributable to the respondents . See Int . Assn. Machinists v. N. L. R. B. (Serrick Corp.) 110 F. (2d) 29 (App. D. C.), cert. granted 311 U. S. 72, affirming 8 N. L. R. B. 621; N. L. R. B. v. Christian Board of Publication, 113 F. (2d) 678 (C. C. A- 8), enforcing 13 N. L. R. B. 534; Matter of The Western Union Telegraph Company, a Corporation and American Communications Associa- tion, 17 N . L. R. B., 34, enf'd as mod. , Western Union Telegraph Co. v. N., L. R. B., 113 F. (2d) 992 (C. C. A. 2). ABINANTE & NOLA PACKING CO. 1303 mental foremen. It terminated about 15 minutes past the end of the employees' lunch period. Morrella then told the four assistants to "go to work" and enroll members , and he approved McCauley's instructions to them to go through the plant and see all the employees. Circulating among the employees while they were at work, McCauley and his assistants signed up substantially all the employees that afternoon . 19 Morrella assigned an office employee to help McCauley collect initiation fees and dues, allowing him the use of the office and a typewriter, and the respondent kept the day's receipts overnight for McCauley in its safe. McCauley succeeded in organiz- ing the Guggenhime plant promptly whereupon he was instructed by Reed and Blaurock to visit plants of the other respondents and assist the organizers there, which he did. McCauley also conducted an active campaign in his own and other plants on behalf of several candidates , including himself, in Union No. 21084's first election. Superintendent Morrella, and hence the respondent Guggenhime, knew of his electioneering in the Guggen- hime plant. On about August 10, at McCauley's request, Guggen- hime, through Morrella, called its employees to a meeting at the plant for the purpose of promoting the candidacy for union office of Walter Baum, the person selected by the respondent California Packing to organize its Plant No. 51. The election was held on August 11, during working hours, at a public auditorium and Morrella delegated to two employees the task of conveying the Guggenhime voters to the polling place. He personally directed the procedure, checking off the names of employees as they went to vote and returned. The employees were paid their regular wages by Guggenhime for the time they spent voting. McCauley carried on his organizational and election activities in the various plants during working hours but was paid his full- salary by Guggenhime for the time spent. Subsequently Blaurock told McCauley that Reed had indicated that the union to be formed would reimburse Guggenhime for wages paid employees engaged in organ- izational activities, but it does not appear whether or not such reimbursement ever was made. Pursuant to arrangements made at Richmond's conference with McCauley and Baker on August 24, referred to above, Robert Taggart, the man in charge of Guggenhime's receiving plant at Hollister, shortly thereafter introduced McCauley to the only two employees then working there, telling them that McCauley had come to get their applications for membership in the A. F. of L. union, and that anything he said "would be all right." McCauley then told the employees, io The only exceptions were Greenbaum , the shipping clerk , and Knobel , the receiving clerk , both salaried employees, who refused to join Union No. 21084 until they first spoke to Blaurock . They saw Blaurock and joined the next moaning. 1304 DECISIONS OF NATIONAL LABOR RELATIONS BOARD among other things, that he had been appointed by Blaurock to organize the San Jose plant and that it was "perfectly all right to join the Union." The employees immediately joined and paid their initiation fees and clues. All this occurred during working hours and in Taggart's presence. In October 1937 one LaTorre, an employee of Guggenhime, was reluctant to join Union No. 21084 and actively discouraged other employees from paying dues. Having in mind the respondents' promise, referred to above, to assist Union No. 21084 in the collection of dues and in enrolling new members, McCauley reported the matter to Superintendent Morrella, who told LaTorre, during working hours, 11 , . . we don't want any trouble around here . . You better sign it," whereupon LaTorre forthwith signed an application. In 1938 Morrella permitted Baker to remove from the time-clock rack the cards of some eight or ten employees who were delinquent in their union dues, and when the men found their cards missing, he sent them to Baker, who, in Morrella's' presence, obtained from them their dues or a satisfactory promise to pay. California Packing. During the afternoon following Reed's meet- ing with the Field Practice Group, F. J. Prowse, the plant superin- tendent at California Packing Plant No. 51, called Walter Baum from his work in the plant and, informing him that all the dried fruit plants were going to be organized, said, ". . . we are going to or- ganize this plant." He told Baum that the union to be set up was to be one affiliated with the A. F. of L., "that they didn't want the C. I. O. to come into any of the dried fruit plants," and that if it did so, it would ruin the industry. Prowse asserted that he and the assistant superintendents all had agreed that Baum would be a good organizer, and he asked Baum to take over the organization of Plant No. 51.. l3aum assented, and i4 of an hour later, when a telephone call came to Prowse from Reed's headquarters for the organizer for that plant, Prowse had Baum quit work and go there. Baum later re- ported to Prowse with the application blanks obtained from Reed and requested that some. one be assigned to help him organize the women employees. Prowse directed Mrs. Pierce, a supervisory em- ployee, to stop her work and assist Baum. Later that day, of his own accord, Prowse ordered another employee, Al Thompson, to help Baum and on about August 6 Mrs. Melton, the head forewoman in charge of the women employees, instructed a fourth employee, Eva Papeschi, to help Mrs. Pierce, commenting at the same time, . . . We are all going to join the union . . . " Baum and his assistants were permitted to solicit members through- out the plant during working hours and on one occasion the respondent kept part of the day's receipts of initiation fees and dues overnight ABINANTE & NOLA PACKING CO. 1305 for Baum in its safe. Baum told the employees that Prowse had selected him to organize them and that they would have to join Union No. 21084, since those were the wishes of California Packing. After he had discussed the matter with about a dozen employees, most of the others signed quickly, many remarking that they thought it advisable to do so if they wanted their jobs. Superintendent Prowse, Forewoman Melton, and Roland Roderick, district manager of California Packing, requested and received reports from the organ- izers as to the progress of the campaign. Melton assisted in securing the application of one Helen Patterson.20 As a result of these activi- ties, within 2 days all the eligible employees;. numbering several hun- dred, except the department heads, had become members of Union No. 21084. Union No. 21084 was anxious to have the department heads as members and several did sign applications, but Baum, on instructions from California Packing, destroyed the applications. Superintendent Prowse suggested to Baum that he seek some office in Union No. 21084, and after Baum was nominated to run in the first election, California Packing rendered considerable aid to him, as well as to three other candidates on his "slate." It printed cards advocating their election,21 and permitted Baum and at least one other employee to electioneer in Plant No. 51. during working hours. Baum electioneered in plants of other respondents also during working hours. In addition, District Manager Roderick obtained from the president of the respondent Richmond-Chase a promise to aid Baum's candidacy among the latter's employees. Baum performed no work during the period from about August 5 to August 14, 1937, other than the various activities above referred to, but he, like the other organizers, was paid his regular wages by California Packing for the time he spent organizing and election- eering. California Packing instructed Baum, however, not to sign his time card and to tell inquirers that he was being paid by the A. F. of L. In late August 1937, pursuant to Richmond's instructions to McCauley and Baker at their August 24 conference referred to above, McCauley interviewed Roderick, district manager of California. Packing and its highest official in that area, .relative to the organiza- tion of Plants Nos. 55 and 88 of that respondent, located at Gilroy and Hollister respectively. As a result. of that interview, Roderick 20 Patterson, when first approached by Papeschi, belligerently said that Papeschi did not know enough about unions to sign her up and that she would consult her husband about joining. Papeschi reported this to Forewoman Melton, who instructed her to approach Patterson when Melton was nearby and promised that if Patterson got "sassy" again, she would be discharged. Melton stood 3 feet away from the place where Patterson was working on the conveyor belt when Papeschi, later that day, again asked Patterson to join. Patterson's demeanor changed completely and, while she still wanted to.speak to her husband first, she said she thought she might join the next day, which, in fact, she did. 21 The candidates so aided were Baum , McCauley, Miljarak , and Friedrichs. 1306 DECISIONS OF NATIONAL LABOR RELATIONS BOARD instructed Sullivan, the person in charge of Plant No. 55, to cooperate with McCauley in organizing the employees there and to have Ken- neth Spofford, one of the employees, act as plant steward. McCauley visited Plant No. 55 a few days later and Sullivan called Spofford to meet him. McCauley and Sullivan told Spofford that Roderick had sent McCauley there and arranged to have him meet Spofford and that California Packing wanted all the employees to join Union No. 21084. Spofford signed an application in Sullivan's presence and agreed to sign up the rest of the employees, which he did within 2 days. As a result of the above-mentioned interview, Roderick also instructed. the buyer at Plant No. 88, who was the person in highest authority there, to cooperate with McCauley in organizing the em- ployees and to have a certain employee, one Whalen, act as steward. McCauley visited Plant No. 88 the day he visited Plant No. 55 and Peters, the plant superintendent, on instructions of the buyer, called Whalen to meet him. Peters told Whalen, in the buyer's presence and with his apparent approval, that Roderick had given orders that Whalen act as steward and lend McCauley any cooperation needed to complete the organization. Whalen agreed to do so and he him- self forthwith signed an application. Superintendent Peters told one employee that day that if he was going to work in the plant, he would have to sign an application. Whalen signed up all the employees within a few days. Pending McCauley's return to the plant, Cali- fornia Packing permitted Whalen to keep the applications and the moneys collected in its safe. In early September 1937 McCauley paid another visit to District Manager Roderick, this time with reference to the organization of California Packing Plant No. 54 which, though located in San Jose, had not yet been organized. Roderick instructed Superintendent Lowe of Plant No. 54 to have one Wurtsbaugh, a part-time foreman, organize the employees and act as steward. Wurtsbaugh induced Roderick to release him from the assignment and Lowe got an em- ployee named Mills to substitute for him. Shortly thereafter Mc- Cauley Spoke to Lawrence, the superintendent of Plant No. 153, about Mills' organizing the employees there also, since the two plants were very near each other. Lawrence was agreeable and he promised McCauley to see to it that his employees joined Union No. 21084. Mills got applications from all the employees in both plants. In the early part of 1938, prior to the signing of the 1938 agreement, hereinafter discussed, one Ciriglano, an employee at Plant No. 51, refused to pay his union dues. The matter was reported to Super- intendent Prowse, who induced Ciriglano to pay what he owed. Rosenbergi. On the day when the organizing committee of Union No. 21084 was being selected Louise Castro, the forewoman in charge ABINANTE & NOLA PACKING CO. 1307 of all women employees at the Rosenberg plant in Santa Clara, called Olga Sibona from her work and asked her if she "believe[d] in a union." Receiving an affirmative reply, she told Sibona that the dried fruit plants were going to be organized and asked her to go to Reed's office and get instructions how to proceed, which Sibona did. J. N. Greves, another Rosenberg employee, was also sent by this respondent to Reed's office that day to receive instructions relative to the organiza- tional campaign. After receiving from Reed instructions and materials for organizing her fellow employees, Sibona returned to the Rosenberg plant and asked Forewoman Castro to assign some women to assist her. Castro selected Frieda Greves, Alice Nichols, and Mrs. Borba and with their assistance Sibona proceeded, during working hours,-to solicit member- ship applications among the women employees. Sibona stated to the employees that the respondent Rosenberg "approved of the union." Within approximately a week all the women employees, numbering about 100, signed applications. At the same time, also during working hours, Jack Olivera, whom Rosenberg had sent to Reed's office for similar instructions and materials solicited members among the men employees, close to 100 of whom joined during August 1937. Ap- proximately 10 women employees signed authorizations for the deduc- tion of their initiation fees and first month's dues from their next pay checks, and upon presentation of the authorizations, Rosenberg paid Sibona the amounts in question. Rosenberg paid Olivera and Sibona their regular wages for the time they spent organizing the employees. In late August 1937, pursuant to Richmond's instructions to Mc- Cauley and Baker at their August 24 conference already mentioned, McCauley interviewed Lietz, district manager of Rosenberg and its highest official in San Benito and Santa Clara Counties, relative to the organization of Rosenberg's receiving plant in Hollister. As a result of that interview Lietz instructed Sheriffs, who was Rosenberg's Hollister buyer and in complete charge of the Hollister plant, to introduce McCauley to the employees there, and he said that anything McCauley told the employees "would be all right." McCauley visited the Hollister plant within a few days and was introduced to the employees by Sheriffs, who told them that Lietz had said they were to give McCauley their applications. The employees, who numbered at the time only three, stopped their work and, in Sheriffs' presence, signed applications for membership in Union No. 21084. Thereafter McCauley was permitted to come to the plant during working hours from time to time and collect from the steward ap- pointed by him the dues paid by the employees. In June 1938 the foreman of Rosenberg's Santa Clara plant persuaded the assistant 1308 DECISIONS OF NATIONAL LABOR RELATIONS BOARD receiving clerk, who had discontinued paying union dues, to maintain himself in good standing in the union. Libby. Robert Bonn, the organizer whom Libby requested to go to Reed's office for instructions as to the organization of its employees, returned to that respondent's plant with the application blanks obtained from Reed and, during working hours, proceeded to solicit members. Bonn was the head maintenance mechanic in the plant. Although for a period of 3 or 4 days he slid none of his usual work, Libby paid him his regular wages. Cupples, the assistant superin- tendent, directed the head laboratory woman to allow Gertrude Silva, a laboratory employee, to help Bonn sign up the women *employees. Forewoman Jordan then sent the women employees one by one into the laboratory, where Bonn asked them to sign applications, which Silva helped fill out. This occurred during working hours, and Silva was paid her regular wages for the time so spent. While Bonn was organizing the employees, Assistant Superintendent Cupples went about the plant asking various employees if they had joined Union No. 21084 and advising them to do so for the sake of their future em- ployment. Over 80 employees joined the organization within 2 or 3 days. Seventy-five of the applicants did not pay their initiation fees and first month's clues, amounting to $3.00, at the time they signed their applications. On the clay prior to the following pay clay- these appli- cants were sent by their foremen to the superintendent's office, where Superintendent Fisher handed each the sum of $3.00 in cash, which each forthwith turned over to Bonn, who was present in the office with Fisher. The $3.00 was then deducted from the employees' wages. In about June 1938 a number of Libby employees joined a union affiliated with the C. I. 0.22 Breton, vice president of Libby, went to the office of Union No. 21084 to discuss the matter with Baker, its secretary-treasurer. Breton told Baker that the problem was Union No. 21084's not Libby's; that the employees had the right under the Act to join any organization they chose to join and that Libby could not discharge them for doing so. Subsequently, how- ever, Libby permitted two officials of the A. F. of L. Central Labor Council to install themselves in the buyer's office and interview the suspected leaders of the defecting group. Moreover, Baker told Superintendent Fisher or Assistant Superintendent Cupples that Union No. 21084 wished to. post signs in the plant relating to the defection, and he requested that Fisher and Cupples get out of sight so that the signs could be posted. Subsequently Baker and Mc- Cauley posted signs in the plant directed against the C. I. 0.23 We 22 Thirty-four of the 39 men then employed at the plant joined. 23 One of the signs read, "Join the C. I. 0. and see our jails;" another, placed on a rubbish can, said, "Throw your C. I. 0. rubbish in here." ABINANTE & NOLA PACKING CO. 1309 find that Fisher and Cupples absented themselves from the room pursuant to Baker's request in order to permit the posting of, the signs. The employees in question reaffirmed their allegiance to Union No. 21084. In the latter part of October 1938 Superintendent Fisher told an employee he had heard rumors that some of the men were joining the C. I. 0., and added, ". . . we have been treating you boys here pretty well in the plant, don't you think? . . . Well, if the C. I. O. ever gets in here it will be an awful big mistake, because . . . the higherups will not stand for the C. I. O. coming into this plant." Growers Association. On the day of Reed's meeting with the Field Practice Group George Songer and Velma Gordon, supervisory employees at Growers Association Plant No. 11, appeared at Reed's office pursuant to their employer's request that they go there for instructions as to the organization of this respondent's four dried fruit packing plants in San Jose. Thereafter they quit their regular work at Plant No. 11, Gordon for a few days find Songer for about 2 weeks, and, during working hours, organized the employees of the four said plants. At Plant No. 6, on about August 6, Superintendent Atkinson presented Songer to the foreman, forewomen, and strawbosses and, pursuant to instructions from Kluge, assistant general manager of the Growers Association, ordered them to give Songer all possible assistance. Foreman Zimmerman assigned one Careaga to assist Songer and Forewoman Telefsen assigned one Audrey Jones to organize the women employees.21 Careaga and Jones solicited mem- bers during working hours, Careaga most unwillingly, since he favored the C. I. O. The women empolyees applied promptly, but almost all the men refused to sign until Earle Baker, after about 3 clays, gave them his assurance that the organization was bona fide. At Plant No. 10, on about August 6, Superintendent Combs called Ellis Holmes from his work to meet Songer, who requested Holmes to sign up the employees. Holmes asked several employees to join Union No. 21084 but none did so at his solicitation. Songer and Gordon, however, obtained applications from a number of the em- ployees. At Plant No. 11, early in August, Gordon set up headquarters in the office of Gilardin, the head forewoman, who personally or through the "relief girls" ordered all the women employees to leave their work and go to see Gordon. Many of the employees found Fore- woman Gilardin in the office with Gordon when they arrived there. Gilardin advised one employee that she might as well join imme- diately, "because you will have to sooner or later." and later she i4 In spite of Atkinson 's orders, Earle Baker, then grading foreman at Plant No . 6, refused Songer 's request for a man to assist in the organization of the plant. 1310 DECISIONS OF NATIONAL LABOR RELATIONS BOARD assisted Union No. 21084 by delivering union membership books to employees who had paid their dues. Songer informed employees at Plant No. 11 that the Growers Association was "back of" Union No. 21084 and had instructed him to organize the plant, and that the more quickly the employees signed up, the more pleased the Asso- ciation would be; and Gordon, who was an assistant forewoman, warned an employee that the employee "would have to join or else." At Plant No. 17 Songer and Gordon were assisted in soliciting members by Joseph Rose. A short time after this Cavallero, general manager of the Growers Association, stated to Alice Davis, an employe at Plant No. 17, that he thought the A. F. of L. was the "best organi- zation," and that lie did not want the C. I. O. in the plant, since that would result in its being closed by strikes. In September 1937, when two employees at Plant No. 17 refused to joint Union No. 21084, they were reported to Superintendent Domenici, who offered to "take care of" the matter. The two employees joined the following day. We find that Domenici urged these employees to join Union No. 21084. A large number of the applicants in each of the four plants authorized the deduction from their wages of their initiation fees and first month's dues and on August 9, the following pay day, such deduction was made and the amount deducted paid over to Union No. 21084.25 On August 11 the employees at Plant No. 11 were given an hour off, with pay, to vote in Union No. 21084's first election, and at Plant No. 6 Foreman Brainard made arrangements to transport to the polling place, during working hours, an. employee who failed to vote. Velma Gordon electioneered for McCauley among employees at Plant No. 11 whose work she was then supervising. Although Songer and Gordon did none of their regular work while they organized the various plants, they were paid their regular wages by the Growers Association. When Songer asked permission to go back to his regular work, Superintendent Parks ordered him first to finish the job of organizing to which he had been assigned by the Association. On about August 26, 1937, McCauley and Baker requested Kluge, assistant general manager of the Growers Association, to introduce them to persons who would facilitate the organization of Plants Nos. 1, 2, 3, and 9 of the Association which were as yet unorganized. This was pursuant to the instructions which Richmond had given them at the conference of about August 24 already mentioned. Kluge re- ferred Baker and McCauley to Schraeder, superintendent of Plant No. 1, to Moore, superintendent of Plant No. 2, and to Thomas Tag- gart, the man in general charge of Plants Nos. 2, 3, and 9, and Kluge 25 The Growers Association handed each employee the deducted sum in the form of a separate check which he was required forthwith to endorse and hand over to a representative of Union No. 21084 or-the Growers Association. ABINANTE & NOLA PACKING CO. 1311 himself communicated with those individuals and informed them of the situation. Early in September, at Plant No. 1, located in Campbell, Baker told Superintendent Schraeder. that he wanted an employee assigned to act as organizer. Schraeder introduced Baker to one Sanders, an employee with power to hire and discharge employees, and told Sanders that he was proposing him to Baker as plant organizer. Sanders accepted the assignment and signed up all the employees.26 Later he acted as plant steward and, pending visits to the plant of the union representatives, would keep the dues collected by him in the plant safe. In early September or thereabouts McCauley visited Plant No. 2 of the Growers Association at Morgan Hill and spoke to Moore, the man in charge. Moore called Phelps, whom Kluge had suggested as plant organizer, told him the purpose of McCauley's visit, and stated that Kluge had agreed that all employees of the Growers Association in the outlying plants were to be members of Union No. 21084. Phelps then introduced McCauley to several employees working about the plant. He told them that McCauley had been sent by Kluge and that the employees had to join Union No. 21084 since that was the Asso- ciation's desire. Several employees signed applications that day and the rest were signed up later by Phelps. At about the same time McCauley visited Plant No. 3 at Gilroy and told Ahlman, the man in charge there, that Kluge had sent him there to sign up the employees. Ahlman stated that "that was per- fectly all right," and that he knew that Kluge had spoken to Taggart, his superior, about the matter. He then introduced McCauley to an employee named Cullen who, though averse to joining Union No. 21084, finally signed an application and agreed to become shop stew- ard when McCauley, in Ahlman's presence, stated that the Growers Association wanted all its employees to be members. Cullen signed up all the employees at the plant except three, who at first refused to join but did so later when McCauley, at Ahlman's suggestion, in- formed them Ahlman had sent him to get their applications. Late in August or in September, on Taggart's instructions, Ben Uhman, superintendent of Plant No. 9 at Hollister, introduced an employee named Blacklock to McCauley, who asked Blacklock to act as organizer in the plant. Blacklock was at first reluctant even to meet McCauley, saying ". . . I don't want to get mixed up in any union . . . " However, he undertook the assignment when McCauley, in Uhman's presence, told him that Kluge had "inferred" that Blacklock would be the man for McCauley. to see at Plant No. 9, and said that Kluge approved of the employees joining Union No. 2 Subsequently Sanders signed up employees under him on behalf of Local 1-6. See footnote 18: supra. 1312 DECISIONS OF NATIONAL LABOR RELATIONS BOARD .21084 since "it would keep the C. 1. O. out." McCauley stated to several employees, also in Uhman's presence, that they had to join Union No. 21084 if they wanted to work in the dried fruit industry in that area . He got applications from Blacklock and two or three other employees; the rest were signed up by Blacklock. - Taggart made inquiry about Blacklock's progress and, when informed that the fe- male employees were not signing, said to Blacklock, "We got to have those women signed." The solicitation of members at Plants Nos . 2, 3, and 9, referred to above, took place during working hours. In the late summer or early fall of 1938 one Miladin refused to pay his union dues. Baker obtained authority from some one in the main office of the Growers Association to have Miladin removed from his job, and he asked Superintendent Parks to do so. Parks told him "to go ahead and do it" if he had the right to , and Baker ordered. Miladin off the job. Miladin then paid his dues. Richmond-Chase. On the clay of Reed's meeting with the Field Practice Group Myers, plant superintendent at Richmond-Chase Plant No. 2, called John Rampone, an assistant foreman to , his office to tell him that Reed wanted to see him, and asked Rampone to get in touch with Reed. In compliance with Myers' request, Rampone went to Reed's office to receive instructions as to organizing the em- ployees. After receiving his instructions from Reed he reported to Superintendent Myers and received • Myers' consent to sign up the employees. At Rampone's request the forewoman of the plant as- signed Pauline Carper to assist Rampone and the two proceeded, during working hours, to solicit members in the plant. Within 4 days Rampone signed up about 125 men. At their August 24 conference Richmond invited McCauley and Baker to communicate with one Pete, the superintendent of Rich- mond-Chase Plant No. 1, at Edenvale, who would put them in touch with the crew there. He also invited them to organize Plant No. 5 at Gilroy when it was opened. McCauley visited Plant No. 1 within the next 2 days and was presented to the employees by the superintend- ent, who announced that all the Richmond-Chase employees in the San Jose plant had joined Union No. 21084 and that. it was "perfectly agreeable to Mr. Richmond." In the superintendent's presence all the men signed applications . All this occurred during working hours. Richmond-Chase Plant No. 5, which commenced operations in the middle of September , was in the charge of Rampone , who had organ- ized Richmond-Chase Plant No. 2. Rampone advised the employees at Plant No. 5 that McCauley would come there to take their applica- tions, that all the employees at Plants Nos. 1 and 2 had joined Union No. 21084, and that Plant No. 5 should " follow along." WheiiMc- Cauley arrived , Rampone accompanied him through the plant and ABINANTE & NOLA PACKING Co. 1313 introduced him to the employees, all of whom promptly signed appli- cations. Rampone collected their dues on the first pay day following and turned the money over to McCauley. The record does not dis- close any organizational activity at Richmond-Chase Plant No. 9, a very small plant located at Mountain View. Superintendent Myers in the winter of 1937 and in about May or June 1938 used his good offices to persuade employees to pay their dues, although he expressly informed the union representatives that he could take no "official action." Myers also permitted McCauley to electioneer in the plant during working hours. Abinante. In early November 1937 a number of employees of Abi- nante at Cupertino joined Union No. 21084 on solicitation by Earle Baker and subsequently others joined on solicitation by Walter Baum. The record, however, does not show that this respondent rendered any direct. assistance to Union No. 21084 in this connection. On the con- trary no employee of Abinante was shown in the record to have acted as plant organizer or steward, and although this respondent, begin- ning September 2, 1937, participated with the other packers in collec- tive bargaining negotiations with Union No. 21084, it refused to sign the agreement reached until compelled to by picketing. Dick. Richmond instructed McCauley and Baker to speak to James Lively, superintendent of the Dick plant, located in San Jose, with respect to the organization of the employees of this respondent. Thereafter, starting about August 26, 1937, a number of the employees joined Union No. 21084, several being signed up by one Roy McCay, who was generally in charge of the entire plant and, next to the super- intendent, was the "highest ranking officer." 27 Aside from the fore- going, the record does not show that Dick gave Union No. 21084 any direct assistance in organizing its employees. Hamlin. When Baker visited the Hamlin plant in San Jose to organize the employees there," Homer Hamlin, the owner, referred Baker to his brother, Howard Hamlin, the plant superintendent. Baker asked Howard Hamlin to assign a man to organize the plant. The first man Howard Hamlin suggested refused the task, but they found an employee, one Vialetus Ely, who accepted it. Baker himself signed up one employee in Howard Hamlin's presence. Mayfair. In about September 1937 McCauley called at the plant in San Jose of Martino Packing Company, which later became known as Mayfair Packing Company,29 and spoke to Joesph Perrucci, one 27 Subsequently McCay signed up employees under him on behalf of Local 1-6. 25 At this time Hamlin operated only one plant. 29 George Martino, who was one of the partners at that time, was not a member of Mayfair at the time of the bearing. However, the data on commerce prepared by the respondent and submitted in evidence by the Board show that Mayfair was "formed . . as the Martino Packing Company" and that its name had been changed on April 1, 1939, to Mayfair Packing Company . The respondents have not raised any ques- tion as to the responsibility of Mayfair for acts committed when the firm name was Martino Packing Com- pany. 1314 DECISIONS OI' NATIONAL LABOR RELATIONS BOARD of the partners, with reference to the organization of the employees. Perrucci introduced McCauley to Frank Ruscigino, who agreed to sign up the employees and act as steward. Ruscigino, who -had ap- proximately ten employees under his supervision, did sign up a number of the employees. One or 2 months later McCauley informed Per- rucci that some employees were not paying their dues. Perrucci as- sured McCauley that in the future Ruscigino "would wield the big stick and see that they paid their dues," and he said to Ruscigino, "You big stiff; you know how to collect these dues; now go to it." In January 1939 this respondent instructed all its employees, a number of whom were delinquent in their union dues payments, "to pay up their dues if they expected to work," and on another occasion Per- rucci ordered one Karvonnes to pay her dues on pain of being laid off 30 J. S. Roberts. In September 1937 Roberts instructed Blaven, his plant foreman, to permit McCauley to speak with the employees with reference to organizing them. Blaven introduced McCauley to the employees and told them that McCauley had come, with Roberts' consent, to get them to join Union No. 21084. A number of the employees were signed up by Melvin Lavin whom McCauley, at Blaven's suggestion, appointed as plant steward and organizer. Warren. Richmond suggested to McCauley and Baker that they communicate with Hardtke, superintendent of Warren, with reference to the organization of that respondent's employees. For a time, however, neither appeared at the plant, which was located in San Jose, and Hardtke inquired of Superintendent Morrella of -Guggenhime, McCauley's former employer, where McCauley was and why he had not come over to organize the Warren Plant. McCauley was in- formed of the inquiry and in the early part of September he visited the plant. At a lunch hour meeting which was arranged by Hardtke and which eventually lasted until 15 minutes or half an hour past the end of the employees' usual lunch time, Hardtke introduced McCauley to the employees, stating: Fellows, here is the organizer for the Dried Fruit Workers Union, and I asked him to come over here today and talk to you people about joining this union. The rest of these plants are all organ- ized so Mr. McCauley is over here to sign you folks up in the union. After the meeting Superintendent Hardtke suggested to McCauley that Vernon Smiley be plant steward and organizer and, promising McCauley to lend Smiley "every possible assistance," lie expressed confidence that all the employees would join Union No. 21084. '0 Karvonnes' removal from Mayfair's pay roll was requested by Union No . 21084 on January 14, 1939, but it does not appear whether or not the said request was the occasion of Perrucci 's order. ABINANTE & NOLA PACKING CO. 1315 McCauley and Smiley got a number of applications that day and Smiley got others subsequently. Between McCauley's visits to the plant, Hardtke kept the moneys and applications obtained by Smiley in the respondent 's safe. Winchester. In about August 1937 Baker visited the Winchester plant in San Jose and asked Mitchell, the superintendent, to assign a worker to take care of signing up the employees. The two men agreed upon one Peter DeBello for the job and Mitchell summoned, him. from his work and instructed him to cooperate with Baker. DeBello accepted the assignment and signed up a number of employees. The respondent permitted him to keep applications and union funds locked up in its filing cabinet pending the periodic visits of Baker and McCauley. On several occasions, moreover, Superintendent Mitchell himself collected dues and dues books from employees and turned them over directly to Baker. The record does not disclose any organizational activity at the Campbell plant of this respondent. The evidence shows that the organization of Union No. 21084 was the fulfillment and result of a common and mutual plan and course of action conceived at meetings of the Field Practice Group, of which all the respondents were members, and entered into by all of them except Abinante.3i Counsel for the interveners state that the Federa- tion approached officials of the respondents to secure their cooperation in organizing the employees, but if this statement is intended to apply to happenings prior .to the organization of Union No . 21084, it is unsupported by evidence. On the contrary, it is clear that Union. No. 21084 was organized and formed at the instigation and suggestion of the respondents and each of them, with the exception of Abin.ante. The only evidence on the subject in the record is that the respondents, dissatisfied with the kind of organization being set up by Bocca at the Rosenberg plant, approached Vandeleur and reached an understanding with him pursuant to which Vandeleur sent Reed to take charge of organizing the respondents' employees. Prior to that time no A. F. of L. affiliate had taken a single step to organize any of the respondents' employees since the abortive campaign of 1934. Moreover, having induced Vandeleur to send them an organizer, the respondents partici- pated in organizing Union No. 21084 by cooperating in the laying of its plans of campaign , by helping to establish it as a labor organization and by helping to provide the original impetus necessary to give the organization a foothold among their employees. The uncontradicted evidence shows that the respondents California Packing, the Growers Association, Guggenhime, Libby, Richmond-Chase, and Rosenberg selected the charter members and original organizing committee of Union No. 21084, and that all the respondents, with the exception of 3' The exclusion of Abinante from the scope of this finding will be discussed below. 1316 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Abinante and Dick, through some of the highest officials in their various plants and central offices , aided in selecting the plant organ- izers, and requested or directed such organizers to help solicit members in the plants. By the foregoing acts the respondents and each of them, except Abinante and, with respect to the plant organizers, Dick, interfered with, influenced and assisted the formation, organiza- tion and administration of Union No. 21084. Moreover, by thereby manifesting to their employees their desire that the employees become members of Union No. 21084, the respondents and each of them, except Abinante, urged and persuaded their employees to join and assist that organization. The record also shows, as hereinabove set forth, and we find, that after the establishment of Union No. 21084 the individual respondents, except Abinante and Dick, by various means urged and persuaded their employees to join and assist Union No. 21084, contributed financial and/or other support to it, and in other ways assisted, inter- fered with, and influenced its organization and administration, and that the respondent Libby urged and influenced its employees to refrain from becoming or remaining members of a labor organization of their own free choosing. The respondents Abinante and Dick were not shown in the record to have contributed support to Union No. 2].084 directly or to have engaged in any other act of direct assistance to or interference with it. They were both members of the Field Practice Group, however, and therefore would be presumed to have authorized all acts of that Group with respect to their labor relatioins, including the instigation and suggestion of Union No. 21084, and in all other respects to have entered into the common and mutual plan and course of action agreed to by the members of the Field Practice Group. In the case of Abinante that presumption is effectively rebutted by the fact that none of its employees acted as plant organizers and that, of all the respondents, it alone refused to sign an agreement with Union No. 21084 until compelled to do so by picketing. For this reason we excluded Abinante from the scope of our finding above that the various respond- ents entered into the plan and course of action referred to. We do not so exclude Dick because the record contains no evidence which rebuts the said presumption with respect to this respondent, but tends to show, if anything, the contrary, since the supervisory employee next in rank to the superintendent participated in organizational activities in the Dick plant. The respondents and the interveners contend that the respondents' conduct hereinabove described did not constitute unfair labor prac- tices but rather represented lawful cooperation with Union No. 21084, especially since neither the C. I. 0. nor any other labor organization ABINANTE & NOLA PACKING CO. 1317 was then in the field. We are not persuaded by this contention. It is immaterial that no other labor organization was then seeking to organize the respondents' employees, since the uncontradicted evi- dence shows that the respondents' action in establishing and assisting Union No. 21084 was motivated largely by the possibility of an attempt by a C. I. O. union in the future to organize the employees in the industry and by their desire to forestall such an attempt. More- over, irrespective of such motivation, it is plain, and we find, that the acts of the respondents here under consideration were coercive in character, and that the respondents thereby were applying their economic power to compel their employees to join and assist the labor organization selected by the respondents. We find that by the acts respectively ascribed to them hereinabove the respondents and each of them, with the exception of Abinante, interfered with, restrained, and coerced their respective employees in the exercise of the rights guaranteed in Section 7 of the Act. C. The alleged refusal to bargain collectively (1) Bargaining history prior to April 20, 1939 On September 2, 1937, Union No. 21084 and the packers met in their first collective bargaining conference, participating in which were the Executive Board of said union and officials or owners of each of the respondents except Abinante, Hamlin, J. S. Roberts, and War- ren. Union No. 21084 demanded a wage increase and a closed-shop contract. The final agreement, reached after four "rather strenuous" conferences of several hours each,32 embodied a compromise as to the wage rates 33 but omitted any provision for a closed shop. The agree- ment also provided for arbitration of grievances arising out of viola- tions thereof. A draft of the final agreement was prepared and was approved by a majority of the members of Union No.. 21084, voting by secret ballot, and on or about September 20, 1937, individual con- tracts with Union No. 21084, all substantially identical, were executed by all the respondents except Abinante, which signed one in Feb- ruary 1938. In late April or early May 1938, at the request of Union No. 21084 and after considerable preparation by said union, Union No. 21084 and the packers started negotiations relative to a new agreement. The negotiations eventually consumed some 100 hours and, pending their completion, the parties agreed to two extensions, totaling 30 days, of 32 The conferences were held on September 2, 8, 13, and 15 or 10, 1937. 33 The agreement was for a minimum hourly rate of 42Y2 cents for women and 52 4 cents for men. The corresponding rates demanded by Union No. 21084 were 45 cents and 55 cents, and those which Vandeleur, unsuccessfully , had urged that Union No. 21084 demand were 50 cents and 65 cents. The agreement also provided for an increase of 2.4 cents per hour for all employees whose wages were not increased by the said minima. 323429-42-84 1318 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the 1937 agreement. The packers, represented by substantially the same individuals as in 1937,34 refused the request of Union No. 21084 and of A. F. of L. dried fruit unions from Fresno and Alameda Counties that negotiations be carried on jointly for the three areas, and Vande- leur, in spite of opposition by the officials of the unions present, immediately withdrew the unions' request. The packers again refused the demand of Union No. 21084 for a closed-shop agreement, but each agreed to grant preference in the hiring of new employees to unem- ployed members of Union No. 21084 who were former employees of such packer.35 Wage rates remained the same,36 but the employees obtained more favorable conditions as to hours of work.37 On about June 14, 1938, the 13 respondents executed substantially identical individual contracts with Union No. 21084-embodying the terms agreed upon.38 On about March 15, 1939, negotiations for a third agreement were commenced, again at the request of Union No. 21084, which, prior to the commencement of the. negotiations, submitted to the respondents a proposed new agreement embodying substantially increased wage rates and a more elaborate seniority system. During these negotiations the respondents proposed that Union No. 21084 agree to a waiver of certain provisions of the Fair Labor Standards Act of 1938,39 a proposal which Union No. 21084 was at first inclined to accept 40 but eventually rejected. The 1939 negotiations were interrupted by events hereinafter described,41 and contractual rela- tions between the respondents and Union No. 21084 terminated on April 15, 1939. (2) The events occurring on April 20, 1939, and thereafter In April 1939 a group of members of Union No. 21084 decided to affiliate with the C. I. O. A regular monthly meeting of Union No. 21084 was scheduled for April 20, 1939, the usual notice of which was given on April 17. On the morning of April 20 Baker, the secretary- treasurer, had Union No. 21084's records and furniture removed to 3"The only change noted in the record was that Dwight Grady, of Rosenberg, took the place of Walter Rothschild of the same firm. An attorney representing Union No. 21084 took part in some of the conferences. 36 "New employees" were, in effect, defined in each agreement as all employees other than persons who were employed by the particular packer at the time of the signing of the agreement. The parties also agreed "that it is advisable that all employees covered by this agreement be members of the Union." 36 McCauley, a witness for the Board, claimed he was not convinced that the respondents were unable to pay the increased rates demanded by Union No. 21084, but admitted that the industry was in a "rather sick" condition. 37 The 1937 agreement provided for a 10-hour work day for male workers during 7 months of the year and a shorter work day during the remainder of the year, whereas the 1938 agreement provided for a 10-hour work day only during 90 to 132 days of the year, depending upon various circumstances. 38 The 1938 agreement was also approved by the members of Union No. 21084 voting by secret ballot. 39 62 Stat. 1060. +4 Since the employees were paid by the hour, a reduction in their normal work week during a substantial part of the year from 60 to 48 hours would have represented an important reduction in individual earnings. 41 See subdivision (2), infra. ABINANTE & NOLA PACKING CO. 1319 new quarters. At the meeting that night, after considerable dis- cussion, a motion was passed by a vote of 321 to 128 providing that Union No. 21084 "dissolve this organization and reconvene under the banner of the Congress of Industrial Organizations." 42 In view of the provisions of the constitution of the A. F. of L., the passing of the motion had no effect upon the status of Union No. 21084 as a labor Organization.43 The president and several other representatives of Local 1-6, who had been waiting outside the hall, came in and ad- dressed the meeting and solicited the membership of those present. Between 200 and 300 persons signed membership application cards that night, and Local 1-6 continued its organizational campaign from then up to the last day of the hearing in this proceeding. Many minor supervisory employees joined Local 1-6, and a number of the persons soliciting signatures on its behalf did so among employees in plants where they were employed in supervisory capacities.44 At one plant- Guggenhime-an employee named Rizzo solicited signatures at the plant during working hours.45 On April 25, 1939, at a meeting attended by about 40 persons and presided over by Charles Daly, president of the Federation, Union No. 21084 was reorganized, and new officers were elected, none of whom had been officers of Union No. 21084 previously.46 The new officers obtained an order in a State court for the possession of the books and equipment of their union, pursuant to which, early in May, the former officers returned the articles in question. The new officers also visited additional members of Union No. 21084 and sought to induce them to remain loyal to the organization. In the middle of May they started an organizational campaign among the respondents' employees, both members and non-members of Union No. 21084. With a few exceptions the campaign was conducted outside working hours. A considerable number of the persons who signed designations of Union No. 21084 after April 20, 1939, were among those who had previously signed designations of Local 1-6, and subsequently many again signed designations of the latter organization. However, on June 15, June 30, and August 4, 1939,41 Local 1-6 held designations 42 There were 13 blank ballots and 3 members present did not vote. On April 20 Union No. 21084 had about 650 members, active and in good standing and hence entitled to attend the meeting , approximately 1800 members being on withdrawal cards because of unemployment due to the slowness of the season. How- ever, the attendance at the April 20 meeting was well above the average , for during the peak season, when more members were in an active status, the long work day discouraged attendance. 43 The A. F . of L. constitution provided that no Federal Labor Union, such as Union No . 21084 was, should disband "so long as seven members . . . desire to retain the charter . ' (Art. XIII, Sec. 17.) 44 See footnore 18, supra. + 3 This was without the knowledge of the plant superintendent and contrary to his orders. +3 The officers elected were: President , James J . Roonan ; Vice-President , Walter Knoth ; Secretary- Treasurer, Frank Barale ; Recording Secretary, Morgan Florey. 47 June 15 and June 30 were two of the dates on which the respondents refused Local 1-6's request for col- lective bargaining . August 4 was the last day on which testimony was taken at the hearing. 1320 DECISIONS OF NATIONAL LABOR RELATIONS BOARD signed by a majority of the employees in the unit hereinafter found appropriate, 48 even omitting all those who had also signed designa- tions of Union No. 21084 since April 20. On April 21 or 22, 1939, and again on April 27 Local 1-6 wrote to each of the respondents informing it that Union No. 21084 had voted to "change its name and affiliation," requesting that the pending collective bargaining negotiations be continued with Local 1-6, and asking each respondent to fix the time and place for a conference. All the respondents except Abinante 49 referred the letters to W. W. Jacka, their joint representative, and informed Local 1-6 of such action by letters dated between May 3 and 8.50 On May 4, 1939, Meyer Lewis, a representative of the A: F. of L., wrote to each respondent informing it that Union No. 21084, representing such respondent's employees, was prepared to resume negotiations for a collective con- tract and requesting it to fix a time and place for a conference. The respondents replied the next day through Jacka that they were ready at any time to resume negotiations. On May 6 Local 1-6 sent Jacka a telegram informing him, as the representative of "the several dried fruit packers in Santa Clara and San Benito Counties," that Local 1-6 and not Union No. 21084 represented a majority of their employees, and demanding a meeting with the packers to negotiate a contract. On May 8 Local 1-6 filed a separate charge against each respondent, alleging, among other things, that such respondent had refused to bargain collectively with Local 1-6 as the exclusive representative of the employees at each of its plants, although Local 1-6 had been duly designated as bargaining representative by a majority of such employees. On May 11, 1939, Local 1-6 filed a separate petition with the Regional Director with respect to each respondent assert- ing that a question had arisen concerning the representation of such respondent's employees and requesting an investigation and certifica- tion of representatives.51 On May 12, 1939, a committee representing Local 1-6 called on Jacka at his office and requested an immediate conference for collec- tive bargaining. They stated that they had with them about 1600 "pledge" cards to prove their claim to represent a majority of the workers in the dried. fruit and nut packing industry in the area and- 18 See Section VIII, infra. 49 The letters to Abinante were returned to Local 1-6 undelivered. 60 Five of the respondents had also replied on April 28 or 29 in substantially identical letters, stating, respectively, that they would negotiate with representatives designated by their employees upon proof of such designation. 51 The record in this proceeding shows the filing of the original charge and the original petition only with respect to the respondent Abinante. However, the Board's files show that on the said respective dates similar charges and petitions were filed with respect to all the respondents. The original charges and petitions, except these with respect to Abinante, were withdrawn on June 20 and 26, 1939, respectively. ABINANTE & NOLA PACKING CO. 1321 offered the cards to Jacka for his examination.52 As an alternative method of proof they also suggested that the cards and the respond- ents' pay rolls be submitted to the Board's Regional Office, which could then determine the question concerning representation. Jacka replied that the problem was one for the Board and Local 1-6 to solve, and he stated that a representative of the Regional Office had informed him that the Board could hold an election-to establish the collective bargaining agency of the employees. Pointing out that the respondents were then gathering certain information requested by the Regional Office-apparently in connection with the proceedings al- ready instituted, referred to above he said that if the Board desired the pay rolls, a request for them should come from the Board. He admitted that the packers were negotiating at the time with Union No. 21084 although it had produced no evidence of designation by a majority of the employees; but he stated that the packers had dealt with that organization in the past and would continue to do so until "some constituted legal authority" instructed them not to or informed them that Union No. 21084 did not represent the employees. On June 12 Local 1-6 wrote to Jacka that it was prepared to submit documentary proof that it represented a majority of the employees in the industry-wide unit 53 and demanded a collective bargaining conference.54 On June 15 Jacka was again visited at his office by a committee representing Local 1-6. He read the committee a letter informing Local 1-6, in reply to its letter of June 1.2, that the respond- ents were engaged in collective bargaining negotiations with Union No. 21084 and therefore refused to bargain with Local 1-6.55 The committee then asked Jacka if, in view of the fact that Local 1-6 was prepared to prove that 1900 employees in the industry had desig- nated it as their collective bargaining representative, the packers would continue to negotiate with Union No. 21084. Jacka's reply was that the packers would continue the negotiations and "perhaps go so far as to sign a contract with the A. F. of L., unless they were informed by the National Labor Relations Board to stop such negoti- ations." He called attention to the petitions for certification filed with the Regional Office by Local 1-6, and asserted that a repre- sentative of the Board had said that without a doubt the whole matter would have to be settled by an election because of the duplication of signatures on the designations of the two factions. The committee 52 The representatives of Local 1-6 stated that of course" they could not leave the cards with Jacka. The respondents , however, made no claim either at the time of the interview or at any other time that they were not offered sufficient opportunity to inspect the cards. 53 Counsel for the Board and for the respondents had previously entered into a stipulation referred to in Section VIII , infra , which provided that the appropriate unit in these proceedings was industry-wide. As described in the letter the unit included Santa Clara Valley Dried Fruit Products, Inc., a company which closed down prior to the hearing. as Local 1-6 also sent similar letters that day to the respondents . All the respondents, with the possible exception of Roberts and Libby, replied that they had referred the matter to Jacka. ' The letter also stated that Jacka did not represent Santa Clara Valley Dried Fruit Products, Inc. See footnote 53, supra. 1322 DECISIONS OF NATIONAL LABOR RELATIONS BOARD admitted that there were duplications and that some persons had attended meetings of both organizations, but they claimed that those persons "were now definitely C. I. 0." and that the question could be settled by an examination of the pledge cards. Jacka replied that the whole matter was in the hands of the Board, which would decide the procedure to be followed. The respondents admit that Local 1-6 demanded that the respond- ent bargain with it collectively and that the respondents refused to do so. Moreover counsel for the respondent and for the Board stipu- lated that for purposes of these proceedings Local 1-6's demands for collective bargaining and the respondents' refusals may be deemed to have been made on June 30, 1939.56 (3) Conclusions with respect to the refusal to bargain The respondents contend that they did not refuse to bargain collec- tively within the meaning of the Act, that the question concerning representation was in doubt because of the conflicting claims of the two labor organizations that each was the exclusive representative of the employees, and that the course taken by the respondents in their dilemma was the only safe one. The validity of this contention is dependent in part upon whether or not Union No. 21084's membership at the time in question repre- sented the employees' choice unaffected by the respondents' unfair labor practices which we have found. We are of the opinion that Union No. 21084's membership immediately prior and subsequent to the shift from Union No. 21084 to Local 1-6 between April 20 and June 1939 was not in any material degree attributable to the continu- ing effects of the respondents' unfair labor practices. On the contrary, the mass shift does much to negative the inference that the employees were not freely exercising their right of choice of bargaining represent- atives during the said period. We find that the membership of Union No. 21084 immediately prior to and after April 20, 1939, must be considered a voluntary one in determining the validity of the respondents' contention. The respondents were confronted with the fact that a substantial number of employees were shifting their allegiance back and forth between the two labor organizations. We think that in the circum- stances of this case they did not act unreasonably in rejecting the suggestion that the question concerning representation be determined on the basis of the designations alone and-in insisting that they would 5e They stipulated, further, that if Local 1-6 had at any other time between May 12 and June 30, 1939, made such demands on the respondents , the latter, and each of them, would have refused to bargain with Local 1-6 as the exclusive representative of the employees in the appropriate unit. . ABINANTE & NOLA PACKING CO. 1323 not bargain with Local 1-6 unless and until the Board certified that organization . A similar observation applies to the respondents' con- tinuance of negotiations with Union No. 21084, the organization with which it had bargained as the exclusive representative of their em- ployees for over 1% years , and which on April ' 20 had as members approximately 98 per cent of the employees in the_ industry, number- ing over 2500.11 In view of the foregoing , we shall dismiss the allegations of the complaint that the respondents refused to bargain.collectively within the meaning of the Act. D. The alleged discrimination James F. McCauley . In August 1938 McCauley resigned as presi dent of Union No. 21084. He applied to Superintendent Morrella of Guggenhime for his old jQb to which , under the contract then in effect with Union No. 21084 , he was entitled. In accordance with the respondent 's previous instructions, Morrella sent McCauley to see Blaurock, the district manager of Guggenhime, to whom, on about August 28 , McCauley accordingly presented his application. McCauley testified that Blaurock , whom he knew `quite well," told him that he could not be reemployed and. said: Well, because of the things that you have said and done while an officer of the union , we do not feel that we can employ you in this plant. Firstly, we feel you would be very unhappy here; conditions would not be as they used to be when we had a very congenial relationship , and Mr. Lacher 58 does not feel you should be employed in this plant because of disparaging remarks that you made pertaining to Mr. Lacher personally, and actions that you took while a member of the union as an officer. . . . Of course , if you want to force this issue the contract provides for it; if you want to make an issue of it, why, that is your right. Blaurock, on the other hand, testified that he told McCauley: All right, ' Mac. You can have a job, but I am rather sur- prised that you would want to come to work for this Company after what you have said and done . . . You have made cer- tain disparaging remarks against the officers of the Company, against our superintendent , Mr. Morrella and myself. Further- more, you are very much in disfavor with the employees of this 57 As we have heretofore noted, such negotiations as were held did not eventuate in any new contract. Further, on May 12 and June 15 Kacka made it plain to Local 1-6 that the respondents would discontinue recognition of Union No. 21084, the last exclusive representative with which the respondents had been in contractual relations, when and if the Board certified another representative pursuant to the petitions of Local 1-6 on file. 58 Lacher was vice president of Guggenhime. 1324 DECISIONS OF NATIONAL. LABOR RELATIONS BOARD Company, and under those circumstances I don't think you would be very happy working for this Company again. In any event, McCauley told Blaurock he would seek work else- where, and within a few days he obtained a supposedly permanent position of the same nature and paying the same salary as his previous position with Guggenhime. However, his new employer 53 soon went out of business and in March or early April 1939 McCauley again visited the Guggenhime plant and spoke to Lacher, whom he had- known for many years. McCauley testified that he asked Lacher to explain to him "thor.- oughly" why he could not be employed at the plant, and that Lacher replied that it was because of the above-mentioned "disparaging remarks" and of actions which McCauley had taken while an officer of Union No. 21084. McCauley further testified that Lacher promised to discuss with Blaurock the possibility of reemploying him and to notify him if it was decided to do so, but that he heard nothing further. Lacher's testimony as to the conversation was that McCauley said, "I presume if I want to come back to work here it will be all right," and that Lacher replied: Certainly Mac. There is no reason why you shouldn't, ex- cept . . . that I don't think you would want to come back here after making certain remarks that I understood you have made . . . I understand you called me a.son-of-a-bitch in an open meeting. According to Lacher, McCauley then "flushed very red" and said: ". Well . . . I am really not interested in the job exactly . . ." McCauley, though denying that he had made the remark Lacher accused him of making, admitted having used insulting language 80 at a union meeting in referring to Lather's failure to observe certain wage provisions of the union agreement. Counsel for the Board contended, however, that the respondent refused to reemploy him because, as president of Union No. 21084, he had insisted upon acting in the interests of the employees and had taken various steps to compel Guggenhime to observe the union agreement, including the provisions as to wage rates above mentioned. The Trial Ex- aminer, finding that McCauley had not made the remark attributed to him by Lacher, and accepting McCauley's version and explana- tion of the events as fitting in with the surrounding facts, concluded that Guggenhime refused to reinstate McCauley because of his efforts to free Union No. 21084 from the interference, influence, and control of the respondents. The question of what McCauley's remark was 59 Santa Clara Valley Dried Fruit Products, Inc. 6O "a cheap kike trick." ABINANTE & NOLA PACKING CO. , 1325 is relatively unimportant, since it is clear that during the course of a union meeting he did use language personally insulting to Lacher. McCauley's own testimony is that Blaurock pointed out that the contract provided for his reemployment and he had the right, if lie so chose, "to make an issue of it"-that is, that he could have. his job if he insisted upon the carrying out of the contract. We think that McCauley became embarrassed on realizing that the respondent's officers, whom be had known many years, harbored ill feeling because of what he had said, and that he therefore preferred to find employment elsewhere. McCauley's second visit to the plant would have had no point if he had been refused employment the first time. According to his own version of the conversation with Blaurock, Blaurock's statement of his and the other officers' feelings was amply explicit. We think that in such a situation McCauley would not have returned to the plant, whether for a more thorough explanation, as lie testified, or even to renew his request for em- ployment, were it not for the fact that Blaurock had told him that if he insisted, he could have his job. We find that the respondent did not refuse to reinstate McCauley, and shall therefore dismiss the complaint as to him. Raymond Gullo. Gullo, a seasonal employee of the respondent Hamlin, was first employed by that respondent in October 1936 and last worked for it during the week ending July 9, 1938.61 He was employed primarily as a nailer, but when nailing was not being done, he did general work, including work on the grader. He joined Union No. 21084 in October 1937. In about the middle of June 1938 work at Hamlin became slack and, with the permission of Superintendent Howard Hamlin, Gullo left San Jose for a short period to work elsewhere. The superintendent told him to return later, since an order was expected; and before the order had come in, Gullo did report for work. Although the evidence is conflicting, the record shows that Gullo received some employment after his return. Within a short time, however, Baker, the secretary- treasurer of Union No. 21084, ordered the shop steward at Hamlin to have Gullo taken off his job because of non-payment of dues, and Gullo was replaced by a new employee, one Sidney Longhead, who was not a union member.62 Gullo protested to Superintendent Hamlin when he saw Longhead doing work on the grader ordinarily assigned to Gullo. The superintendent said nothing as to why Gullo had been replaced, and promised to give him some nailing to do later. He refused, however, to put Gullo to work on the grader. Gullo then complained at the union office, where Baker told him that he Cl Gullo's employment record showed that he worked for Hamlin 89 hours in October 1936, 384 hours from December 1936 through March 1937, 198 hours in October and November 1937, 17 hours in January 1938, 17 hours in March 1938, and 374;2 hours from April through July 9, 1938. 62 Longhead joined Union No. 21084 late in July 1938. 1326 . DECISIONS OF NATIONAL LABOR RELATIONS BOARD was 3 months behind in his dues and that the union had therefore ordered him taken off the job. Baker said: "We can't put you on a job right now. I'll see what I can do for you." The agreement in effect between the respondent and Union No. 21084 at the time here in question provided that in rehiring employees the respondent would, so far as possible and practical , give preference to those who had worked for the respondent the previous year; that in hiring new employees, defined as those not employed by the respondent at the time of the signing of the agreement, the respondent would give preference to unemployed members of Union No. 21084 who were former employees of the respondent; and that in making lay-offs, reductions in personnel, and promotions, the respondent would maintain a general policy of recognizing length and seniority of service, "with due consideration for ability, merit and competence to do the work required." When Gullo went to the union office, he also complained that the respondent had failed to pay for overtime work as required by the union agreement. McCauley, then president of Union No. 21084, visited the plant the next morning, to adjust this complaint and in the afternoon Gullo went there and collected the wages owing to him, including .a separate check for overtime. Homer Hamlin, the owner, said to him, when handing over the checks "Here is your overtime check. I don't want no stool pigeons in my building . . . and furthermore I don't like anybody to tell me how to run my plant and what to do." Gullo answered, ". . . Mr. Hamlin, . . . if it is going to cost my job, I am not going to take my check," to which Hamlin replied, "It belongs to you. Take it." Gullo understood that he had been discharged, but he continued to come to the plant in the hope of obtaining employment. Howard Hamlin told Gullo that he should have spoken to him, Howard, before complaining to the union, but nevertheless he promised to get Gullo restored to Homer Hamlin's good graces. After Gullo had waited around the plant in vain for a few days , Homer Hamlin, early in July , caused him to be ordered from the premises. Gullo left and did not thereafter return. Be straightened out his dues account within about 2 weeks, and Baker and McCauley thereafter attempted to secure his reinstatement, but they were unsuccessful. Gullo and counsel for the Board contended that Gullo's complaint about the overtime, and the action taken thereon by the Union, constituted the "concerted activities" because of which the respondent discharged Gullo and refused him reinstatement , as alleged in the complaint. It is clear, however, that Gullo was replaced by Longhead before making the complaint, and the union agreement contained no ABINANTE & NOLA PACKING CO. 1327 requirement that Longhead be discharged to make room for Gullo. The record discloses no violation of any provision of the agreement with respect to the hiring and rehiring of employees. There is no evidence that after Gullo's complaint to the union the respondent hired or rehired any person who was not a member of Union No. 21084, or who had not worked for the respondent during the previous year. One Tony Cancilla, a hand nailer having less seniority than Gullo, may have been recalled to work,63 but he was a member of Union No. 21084, and, so far as the record shows, he may have worked for the respondent the previous year.64 Gullo expressly stated that he did not consider himself discriminated against by Cancilla's employment. We find that the record fails to sustain the allegations of the complaint that Gullo was discharged and refused reinstatement because of his concerted activities and shall therefore dismiss the com- plaint as to him.65 IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE We find that the activities of each of the respondents set forth in Section III, B, above, occurring in connection with the operations of such respondent 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 REMEDY Since we have found that the respondents, with the exception of Abinante, engaged in unfair labor practices by interfering with, restraining, and coercing their respective employees in various ways in the exercise of rights guaranteed in Section 7 of the Act, we shall order them to cease and desist from such practices and, in order to remove and avoid the consequences of the said unfair labor practices and thus effectuate the purposes and policies of the Act, to take cer- tain affirmative action, more particularly described below. We found above, in considering the respondents' conduct with respect to collective bargaining, that immediately prior to and after April 20, 1939, the membership of Union No. 21084 was not attribut- able in any material degree to the continuing effects of the respond- ents' said unfair labor practices. However, in view of the fact that an election between the competing labor organizations is hereinafter 63 Cancilla was working for the respondent after Gullo's employment had terminated, but Gullo was unclear as to whether or not he was working prior to Gullo's complaint to Union No. 21084. 04 The union agreement contained no provision recognizing length or seniority of service as a factor to be taken into consideration in the hiring or recalling of employees. 63 We express no opinion as to the propriety of the respondent 's action in discharging and refusing to re- instate Gullo at the request of Union No . 21084 because of his delinquency in the payment of his dues. 1328 DECISIONS OF NATIONAL LABOR RELATIONS BOARD directed and of the fact that the respondents have never formally disavowed their past interference with their employees' rights, we deem it advisable to require the respondents to take the affirmative action hereinafter provided. Accordingly, we shall order the respond- ents, other than Abina.nte, (1) to withhold recognition of Union No. 21084 as the exclusive representative of their employees unless and until Union No. 21084 is certified by the Board as such exclusive representative or, after final action on Local 1-6's petition for inves- tigation and certification of representatives, Union No. 21084 is duly designated by a majority of the employees as their representatives; (2) to withhold recognition of Union No. 21084 as the representative of any of their emp? )yees unless similar recognition is granted to Local 1-6 or unless and until Union No. 21084 is entitled to recognition as exclusive representative in accordance with the conditions outlined in clause (1) of this sentence; and (3) to post appropriate notices to their employees in the form hereinafter directed. VI. THE QUESTION CONCERNING REPRESENTATION As hereinabove found, on May 12, 1939, and on several occasions thereafter Local 1-6 informed the respondents that it had been designated by a majority of their employees as their representative for collective bargaining, offered, the respondents signed designations in support of its claim,- and demanded that the respondents bargain with it as the employees' exclusive representative. The respondents, because of the conflicting claim of Union No. 21084 and their previous bargaining relations with that organization, and because it was known that a substantial number of employees had since April 20, 1.939, signed designations of both organizations, refused the demands of Local 1-6 and stated, in effect, that they would not bargain with Local 1-6 until it was certified by the Board as the exclusive bargain- ing representative of the employees. We find that a question has arisen concerning the representation of employees of the respondents. VII. THE EFFECT - OF THE QUESTION CONCERNING REPRESENTATION UPON COMMERCE We find as to each of the respondents in these proceedings that the question concerning representation which has arisen, occurring in connection with its operations described in Section I above, has a close, intimate, and substantial relation to trade, traffic, and com- merce among the several States, and tends to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. ABINANTE & NOLA PACKING CO. VIII. THE APPROPRIATE UNIT 1329 Local 1-6 and Union No. 21084 seek a unit consisting of all the employees of all the respondents, employed in the respondents' dried- fruit packing plants in Santa Clara and San Benito Counties, except officers, executives, clerical and other office employees, and all persons having power of hire or discharge.t6 The respondents do not object to the proposed unit. The parties and counsel for the Board stipulated, and we find, that the respondents constitute substantially the entire dried-fruit industry in Santa Clara and San Benito Counties; that all the respondents had, as a matter of practice and agreement, acted in concert and as a unit in establishing uniform wages, hours, and working conditions for the said dried-fruit industry and in all matters pertain- ing to labor conditions in their respective plants located in the said region; that continuously since about August 1937 the respondents had. for purposes of collective bargaining, dealt with all the employees employed by all the respondents at the respondents'-dried-fruit plants located in the said region, as a group or unit on an industry-wide basis, and that they had so dealt with said employees through a "Negotiating Committee" delegated with the necessary authority and power to bargain collectively with said employees concerning wages, hours, and working conditions; and that all the respondents desired to con- tinue to negotiate and deal through said "Negotiating Committee" with all such employees as a group or unit on-an industry-wide basis for the purpose of collective bargaining. The parties further stipulated that teamsters, truck drivers, and engineers be excluded from the unit, and that the box makers at the Rosenberg and Growers' Association plants be deemed for all purposes employees of those two respondents, respectively, although they were employed at the plants pursuant to arrangements with independent contractors who selected them and paid them their wages. In accord- ance with the stipulations, teamsters, truck drivers, and engineers will be excluded from the unit, and all box makers, including the box makers mentioned, will be deemed employees of the respondents in whose plants they are engaged and will be included in the unit. Local 1-6 and Union No. 21084 contended that all employees not having the power of hire or discharge should be included in the unit. The respondents made no contention as to this issue. All persons having the power to hire or discharge employees shall be excluded from the units' 66 In the amended petition the appropriate unit is described as consisting of all the production and main- tenance employees employed by all the respondents at their plants located in San Benito and Santa Clara Counties in the State of California , excluding all executives, and clerical and supervisory employees. 67 Matter of Southern Chemical Company and Textile Workers Organizing Committee , 3 N. L. R . B. 869. 879. 1330. DECISIONS OF NATIONAL LABOR RELATIONS BOARD We find that all employees of all the respondents employed at.their respective dried-fruit plants in Santa Clara and San Benito Counties, in the State of California, including all box makers engaged in the' said plants, but excluding officers, executives, clerical and other office employees, engineers, truck drivers, teamsters, superintendents, assistant superintendents, and all persons having authority to hire or discharge employees, constitute a unit appropriate for the purposes of collective bargaining with respect to rates of pay, wages, hours of employment, and other conditions of employment, and that said unit will insure to employees of the respondents the full benefit of their right to self-organization and to collective bargaining and otherwise effectuate the policies of the Act. IX. THE DETERMINATION OF REPRESENTATIVES The record establishes that a substantial number of the respondent's employees have designated both Union No. 21084 and Local 1-6 as their bargaining agent and that there are duplications among the designations.68 Under these circumstances we find that the question concerning representation which has arisen can best be resolved by an election by secret ballot.89 Since, however, the respondents, with the exception of Abinante, by engaging in various unfair labor prac- tices interfered with the exercise by their employees of the rights guaranteed them by the Act, we shall not now set the date for the election. We shall hold the election upon receipt of information from the Regional Director that the circumstances permit a free choice of representatives unaffected by the respondents' unlawful acts. The parties stipulated that those eligible to vote in any election directed by the Board in these proceedings, should be "those em- ployees . . . who have worked during the period January 1, 1938, to and including June 30, 1939," at least 18 working days (8 hours being deemed to be a working day) "whether for one or more of the respondents herein or in one or more of their said plants,70 excepting those who have subsequently to their said employment voluntarily (as distinguished from either a lay-off or discharge) severed their con- nection with the dried-fruit industry in the respondents' said plants or have been discharged for lawful cause . . ." We shall give effect 89 See Section III, C, supra. 6 See Matter of The Cudahy Packing Company and United Packinghouse Workers of America, Local No. 61, of the Packinghouse Workers Organizing Committee, Affiliated with the Congress of Industrial Organizations, 13 N. L. R. B. 526, 531; .Matter'of Armour & Company and United Packinghouse Workers, Local Industrial Union No. 13 of Packinghouse Workers Organizing Committee, Affiliated with the C. 0. I., 13 N. L. R. B. 567. 572; Matter of Alpena Garment Company Inc., and International Ladies Garment Workers Union, 13 N. L. R. B. 720, 725-6. rn Counsel for the Board and the respondents stipulated, and we find, that the dried-fruit industry is a highly seasonal industry in Santa Clara and San Benito Counties, and that the industry has definite peaks of employment and activity. Counsel for Union No. 21084 was absent from the session at which this stipu- lation was entered into. ABINANTE & NOLA PACKING CO. 1331 to this stipulation except that, because of the lapse of time since it was made, we shall, when fixing the time of the election, determine another appropriate period during which the employees will be re- quired to have worked 18 days in order to be eligible. Upon the basis of the above findings of fact and upon the entire record in the case, the Board makes the following: CONCLUSIONS OF LAW 1. Warehousemen's Union, Local 1-6, International Longshore- men's and Warehousemen's Union; Dried Fruit and Nut Packers Union No. 21084 of Santa Clara County, California; and California State Federation of Labor, are labor organizations, within the mean- ing of Section 2 (5) of the Act. 2. By interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, each respondent, except Abinante, has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (1) of the Act. 3. The aforesaid unfair labor practices are unfair labor practices affecting commerce, within the meaning of Section 2 (6) and (7) of the Act. 4. The respondent Abinante has not engaged in unfair labor prac- tices within the meaning of Section 8 (1) of the Act; and none of the respondents have engaged in unfair labor practices within the meaning of Section 8 (5) of the Act. 5. A question -affecting commerce has arisen concerning the rep- resentation of employees of the respondents within the meaning of Section 9 (c) of the Act. 6. All employees of all the respondents employed at the respondents' respective dried-fruit plants in Santa Clara and San Benito Counties, in the State of California, including all box makers engaged in the said plants, but excluding officers, executives, clerical and other office employees, engineers, truck drivers, teamsters, superintendents, as- sistant superintendents, and all persons having authority to hire or discharge employees, constitute a unit appropriate for the purposes of collective bargaining, within the meaning of Section 9 (b) of the Act. ORDER Upon the basis of the above findings of fact and conclusions of law, and pursuant to Section 10 (c) of the National Labor Relations Act, the National Labor Relations Board hereby orders that: 1. The respondents, California Packing Corporation; California Prune and Apricot Growers Association; Guggenhime & Company ; Hamlin and Company; Libby, McNeill & Libby; Joseph P. Perrucci 1332 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and F. L. DiNapoli, copartners doing business under the firm name Mayfair Packing Company; Richmond-Chase Company; J. S. Roberts; Rosenberg Bros. & Co.; C. D. Stevens, doing business under the firm name Warren Dried Fruit Co.; and Winchester Dried Fruit Company; and their respective officers, agents, successors, and assigns, shall each cease and desist from contributing financial or other sup- port to Dried Fruit and Nut Packers Union No. 21084 of Santa Clara County, California, or any other labor organization of its employees. 2. The said respondents and the respondent C. L. Dick & Company, and their respective officers, agents, successors, and assigns shall each cease and desist from: (a) Interfering with or assisting the formation, organization, or administration of Union No. 21084 or any other labor organization of its employees ; (b) Urging or persuading its employees to join or assist Union No. 21084 or any other labor organization of its employees; (c) In any other manner interfering with, restraining, or coercing its employees in their right to self-organization, to form, join, or assist labor organizations, 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, as guaranteed in Section 7 of the Act. 3. The respondents named in paragraphs (1) and (2) of this Order, and their respective officers, agents, successors, and assigns, shall each take the following affirmative action, which the Board finds will effectuate the policies of the Act: (a) Withhold recognition from Dried Fruit and Nut Packers Union No. 21084 of Santa Clara County, California, and any other labor organization, as the exclusive collective bargaining representa- tive of any of its employees, unless and until such labor organization is certified as such representative, or unless and until, after final action by the Board upon the petition of Local 1-6 for investigation and certification of representatives, such organization is duly designated by a majority of the employees in an appropriate unit to be their representative for purposes of collective bargaining; (b) Withhold recognition from said Union No. 21084 as the repre- sentative of any of its employees unless similar recognition is granted to Local 1-6, or unless and until Union No. 21084 is entitled to recog- nition as exclusive representative in accordance with the conditions outlined in paragraph 3 (a), hereinabove, of this Order; (c) Post immediately in conspicuous places at its plant or plants, and maintain for a period of at least sixty (60) consecutive days from the date of posting, notices to its employees, stating: (1) that such respondent will not engage in the conduct from which it is ordered to ABINANTE & NOLA PACKING CO. 1333 cease and desist in paragraphs 1 and/or 2 of this Order, and (2) that such respondent will take the affirmative. action. set forth in para- graphs 3 (a) and (b) of this Order; (d) Notify the Regional Director for the Twentieth Region in writing within fifteen (15) days from the date of this-Order what steps such respondent has taken to comply therewith. AND IT IS FURTHER ORDERED that the complaint, as amended, be, and it hereby is, dismissed, in so far as it alleges (a) that the respond- ents, by refusing to bargain collectively with Local 1-6, have engaged in and are engaging in unfair labor practices within the meaning of Section 8 (1) and (5) of the Act; (b) that the respondent Abinante, in any respect, engaged in or is engaging in any unfair labor practices; and (c) that. the respondent Guggenhime, by refusing or failing to reinstate James F. McCauley to his regular position, and that the respondent Hamlin, by discharging and thereafter refusing and failing to reinstate Raymond Gullo, have respectively engaged in and are respectively engaging in unfair labor practices within the meaning of Section 8 (1) of thelAct. DIRECTION OF ELECTION By virtue of and pursuant to the power vested in the National Labor Relations Board by Section 9 (c) of the National Labor' Relations' Act, 49 Stat. 449, and pursuant to Article III, Section 8, of National Labor Relations Board Rules and Regulations-Series 2, as amended, it is hereby DIRECTED that, as part of the investigation ordered by'the Board' to 'ascertain representatives for collective bargaining with the respondents S. R. Abinante and Frank S. Nola, copartners doing busi= ness under the firni,name Abinante & Nola Packing Co.;' California Packing Corporation; California Prune and Apricot Growers' Associa- tion; C. L. Dick & Company; Guggenhime & Company; Hamlin and Company; Libby; McNeill' & Libby; Joseph P. Perrucci and F. L. DiNapoli, copartners doing business under the firm name Mayfair Packing Company; Richmond-Chase Company; J. S. Roberts; Rosen- berg Bros. & Co.; C. D. Stevens, doing business under the firm name Warren Dried Fruit Co.; 'and Winchester Dried Fruit Company, an election by secret ballot be conducted under the direction and super vision of the Regional Director for the Twentieth Region, acting' in this matter as agent for the National Labor Relations Board and sub- ject to Article III, Section 9, of said Rules and Regulations, at such' time as the Board in the future shall direct, among all the employees of the said respondents in,their respective dried-fruit plants in Santa Clara and San Benito Counties, in the State of California, including. all boxmakers engaged in the said plants, but excluding officers, execu-' 323429-42-85 1334 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tives, clerical and other office employees , engineers , truck drivers, teamsters , superintendents, assistant superintendents , and all persons having authority to hire or discharge employees, to determine whether they desire to be represented by Warehousemen's Union, Local 1-6, International Longshoremen 's and Warehousemen 's Union, or by Dried Fruit and Nut Packers Union No. 21084 of Santa Clara County, California , for purposes of collective bargaining , or by neither. EDWIN S. SMITH , dissenting in part: I think that the respondents ' refusal to bargain with Local 1-6 was an unfair labor practice. In my opinion it is clear from the record that , when the respondents admittedly refused to bargain with Local 1-6 on June 15 and 30, 1939, Local 1-6 was the exclusive representative of all the employees. The record shows that Local 1-6 offered the respondents designations signed by a majority of the employees 'to prove its status as exclusive representative, but that the respondents refused to examine the designations , and continued to negotiate with Union No. 21084 as the employees ' exclusive representative . The question arises whether or not the fact that some employees signed designations of both organizations after the mass shift commencing April 20, 1939, cast a doubt upon Local 1-6's status which an examination of the designa- tions could not have dispelled , and thus justified the refusal to bargain in the absence of certification of Local 1-6 by the Board. Obviously, the designations of Union No . 21084 could not have caused such doubt if they were signed as a result of the respondents' unfair labor practices and did not represent the employees ' free choice. I dis- agree with the finding of the majority of the Board that the member- ship of Union No. 21084 immediately prior and subsequent to April 20 must be' considered a voluntary one. After the respondents in 1937 instigated the formation of Union No . 21084 and urged and persuaded their employees to join that organization , the employees were at no time informed that they were free to relinquish their membership. On the contrary, when , occasion arose, all six of the larger respondents, and at least one of the others , persuaded and even compelled em- ployees to maintain their good standing in Union No. 21084, and the record shows several instances of such persuasion or compulsion-after April 20, 1939. Moreover, the agreement in effect from June 14, 1938, to April 15, 1939, provided that each respondent , in hiring new employees, defined as all persons not employed by such respondent at the time of the signing of the agreement , would give preference to unemployed members of Union No. 21084 who were former employees of such respondent . Since these facts were known to the respondents, it is clear that the duplications of signatures could not have ABINANTE & NOLA PACKING CO. 1335 caused doubt in their minds as to the employees' desires concerning representation. Further, leaving out of consideration the respondents' past unfair labor practices, thus providing a basis for the assumption that they might reasonably have had doubt as to Local 1-6's status, that organization's claim of exclusive representation, accompanied by a tender of application cards signed by a majority of the employees in the unit, must necessarily have made the respondents at least as doubtful of the claim of Union No. 21084. No adequate reason has been offered why Union No. 21084 was entitled to more favored treatment under these circumstances than Local 1-6, and in my' opinion the respondents' continued dealing with Union No. 2'1084 shows beyond question that their course of conduct was motivated not by doubts concerning representation, but by their manifest preference for the A. F. of L. over the C. I. 0. I also dissent from the Board's finding with respect to McCauley's reinstatement. Blaurock admitted that when McCauley applied for his job he reproached McCauley for things he had done, and McCauley's uncontradicted testimony is that the "things he had . . , done," referred to by Blaurock, consisted of action he had taken as president of Union No. 21084 to compel Guggenhime to carry out the 1937 contract. Moreover, I do not interpret McCauley's testi- mony to mean that Blaurock told him he could have his job if he insisted upon the carrying out of the contract,71 especially since he testified clearly that Blaurock told him he could not be reemployed. McCauley was on the stand for several days, and in no important respect, except this, was any of his testimony contradicted. His testimony is impressive in its careful regard for accuracy, and I agree with the Trial Examiner's judgment that his version of the interviews with Blaurock and Lacher was correct. 71 I think, furthermore, that such a statement, if made , would not have been an offer of reemployment.