West-Gate Sun Harbor Co.

National Labor Relations Board - Board Decisions

Mar 15, 1951

93 N.L.R.B. 830 (N.L.R.B. 1951)

830 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WEST-GATE SUN HARBOR COMPANY and UNITED FISH CANNERY
WORKERS UNION, LOCAL 64, FooD, TOBACCO, AGRICULTURAL & ALLIED
WORKERS OF AMERICA, PETITIONER . Case No . 21-RC-1501. March
15,1951
Supplemental Decision and Certification of Representatives
On October 31, 1950, pursuant to a Decision and Direction of Elec-
tion,l an election by secret ballot was conducted at the Employer's
San Diego, California, plant under the direction and supervision of
the Regional Director for the Twenty-first Region, among-the em-
ployees in the unit found appropriate therein. Upon completion of
the election, a tally of ballots was issued and duly served upon the
parties.
The tally shows that 596 ballots were cast, of which 89 were for the
Petitioner, 506 were for the Cannery Workers' and Fishermen's Union,
Seafarers International Union, AFL, herein called the Intervenor, 1
was challenged, and 6 were void.
On November 6, 1950, the Petitioner 2 filed timely objections to con-
duct of the election and conduct affecting the results of the election.
It asserted that certain activity of the Employer and the Intervenor,
more fully set forth below, prevented a free choice by the employees
in the balloting, and requested that the election be set aside. In accord-
ance with the Board's Rules and Regulations, the Regional Director'
conducted an investigation.
On November 20, 1950, he issued and duly served upon the parties
his report on objections, in which he found that the objections raised
no substantial and material issues and recommended that all be over-
ruled. On December 7, 1950, the Petitioner filed timely exceptions
to the Regional Director's report, renewing the contentions set forth
in its objections.
Upon the entire record in the case, including the Petitioner's objec-
tions, the Regional Director's report on objections, the Petitioner's
exceptions and affidavits in support thereof, and the Employer's brief,
the Board finds :
Objection No. 1
The Petitioner asserts that the election was conducted by the
Regional Director, despite the Petitioner's request for a postpone-
I Case No 21-RC-1501 ( unpublished).
2 Sometime after the hearing, the Petitioner's name was changed to United Fish
Cannery Workers Union , Local 64, Food , Tobacco and Agriculture Division , Distributive,
Processing and Office Workers Union
93 NLRB No. 133.
WEST-GATE SUN HARBOR COMPANY 831
ment, during the pendency of unfair labor practice charges filed by the
Petitioner against the Employer and the Intervenor.3 The Peti-
tioner's exceptions disclose that the Employer and three other com-
panies similarly engaged in the processing and packing of fish and
related products in the San Diego, California, area, through George
Cheney, their labor relations representative, had executed separate
collective bargaining agreements with the Intervenor for a period of
several years. The most recent contract covering the Employer's
production and maintenance employees expired some time before the
election in this case.
On August 14, 1950, the instant petition was filed. On or about
September 18, 1950, after the contract had expired, the Intervenor
began a strike at the Employer's plant and those of the other em-
ployers represented by Cheney. On October 4, 1950, the Employer
filed an unfair labor practice charge against the Intervenor, alleging
that the strike was called for the purpose of forcing the Employer
to sign an agreement with the Intervenor, notwithstanding an existing
question concerning representation.4 The Regional Director dis-
missed that charge on October 30, 1950.
On the same date-only 1 day before the election-the Petitioner
filed a charge against the Employer, alleging a violation of Section
8 (a) (1) and (5) of the Act, and a charge against the Intervenor,
alleging a violation of Section 8 (b) (1) and (2), and also requested
that the election be postponed. The Regional Director later dis-
missed both charges and recently, on appeal, the General Counsel
upheld the dismissals.
In the Columbia Pictures case' the Board said:
.. . the Board does not, as a general practice, direct an election
during the pendency of an unfair labor practice charge affecting
the unit involved in the representation proceeding, absent the
filing of waivers by the charging party. This practice is, how-
ever, a matter which lies within the discretion of the Board, as
part of its function of determining whether an election will
effectuate the policies of the Act, and is not required either by
the Act or by the Board's Rules and Regulations. Accordingly,
an exception may be made to the general practice when, in
certain situations, the Board is of the opinion that the direction
of an immediate election will effectuate the policies of the Act.
On the basis of all of the facts in this case, particularly the strike
which had lasted 6 weeks and was continuing at the time of the
"The charges were incorporated by reference in the Petitioner 's objections
Case No 21-CB-293
Columbia Pictures Corporation , 81 NLRB 1313, 1314-1315
832 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
election and the Petitioner 's "eleventh hour" filing of its charges, we
believe that effectuation of the policies of the Act required the holding
of an immediate election and justified an exception to the Board's
usual practice requiring that a waiver be filed before the election.
We therefore find that the Regional Director properly refused to
postpone the election . Accordingly , this objection is overruled.
. Objection No. 2
The Petitioner also contends that the results of the October 31
election were directly affected by ( a) the Intervenor 's announcement
on October 29 of the conclusion of an agreement between it and the
four employers represented by Cheney, conditioned upon the selection
of the Intervenor as bargaining representative ; (b) a threat made
on the same occasion by Lester W. Balinger , Intervenor 's secretary-
treasurer , that the employees of the Employer would be out of work
for 6 months if the Intervenor were not chosen at the election; and
( c) the attendant newspaper , radio, and other publicity given thereto.
The Regional Director 's investigation shows that the Intervenor
held a general membership meeting on October 29 for the purpose
of considering Cheney's most recent proposals made in a negotiating
meeting on or about October 27. At the October 27 meeting, as well
as before that time, Cheney, although negotiating for two of the
employers whose employees were on strike, had stated that he could
not enter into an agreement with the Intervenor in behalf of the
Employer or San Diego Packing Company because of pending repre-
sentation cases involving these companies . The Regional Director
found that, at the October 29 membership meeting, Balinger stated
that the Employer and San Diego Packing Company, involved in the
then forthcoming representation elections , would not then sign con-
tracts with the Intervenor. The Petitioner has produced no evidence
to the contrary . In these circumstances, we find no merit in the
Petitioner 's contention that the Intervenor announced the conclusion
of an agreement conditioned upon the selection of the Intervenor as
bargaining representative.
The Regional Director also found that at the same union meeting,
while urging the employees present to vote for the Intervenor,
,Balinger further stated that, in the event the Intervenor won the elec-
tions, the Employer and San Diego Packing Company would probably
sign contracts embodying the same conditions as those proposed in
behalf of the other two struck companies . He stated, in substance,
that the employees of the Employer and San Diego Packing would re-
main on strike for a period of only several days if they designated
the Intervenor as their bargaining representative at the elections,
WEST-GATE SUN HARBOR COMPANY 833
whereas they might be walking the streets for 5 or 6 months if the
Petitioner were chosen.6 The Regional Director found that there
appeared to have been no threat by Balinger of any action by the
Intervenor if the Petitioner won the election. The Petitioner, in its
exceptions, asserts that the Employer took no action questioning
Balinger's prediction of a prolonged strike, or emphasizing its neu-
trality, or otherwise reassuring its employees. We find no merit in
this exception, because we believe that Balinger's statement was in
the nature of legitimate election campaign propaganda by a union
representative.' Absent violence, coercion, or other gross miscon-
duct,8 the Board does not undertake to censor or police union cam-
paigns, or to consider the truth or falsity of official union utterances.9
The Petitioner alleges in its exceptions that, by October 31, the date
of the election, the attendant newspaper publicity and radio broadcasts
resulted in a general community belief that "the employers had sur-
rendered to the Intervenor and that it was simply a matter of the
worker's rubber stamping the deal by voting properly at the elections."
In support of its objection and exception, the Petitioner submitted
clippings of newspaper articles that appeared in the "San Diego.
Evening Tribune" and "The San Diego Union" during the period
October 30-November 2, 1950. None of these articles contain any
statements indicating that the Employer and the Intervenor had con-
cluded an agreement. In the light of the surrounding circum-
stances-the 6-week old strike, the continuing picket lines, and the
apparent general community interest therein-we do not believe that
the publications herein concerned were in fact coercive, or, taken as a.
whole, that they unduly influenced, or prevented the free choice of a
bargaining representative.' 0 Accordingly, we find no merit in the
Petitioner's second objection.
Objections Nos. 3-9
The Petitioner's objections numbered 3-9, inclusive, allege, in sub-
stance, that the election was conducted in the immediate presence of
the Intervenor's pickets and demonstrators; the employees who voted
were required to pass through the picket line and demonstration area,
in order to reach the polling place; the number of pickets was doubled-
6 The Regional Director' s investigation reveals that Bolinger "had in mind that the
[Petitioner] had been making promises to the employees which they could not hope to fulfill,
without a long strike"
i See Western Electric Company , Inc, 87 NLRB 183
8 Cf Stern Brothers , 87 NLRB 16, G H Hess, Incorporated , 82 NLRB 463.
0 Red Wing Potteries , Inc, 88 NLRB 1234 ; Philadelphia Lager Beer Brewers' Association,
79 NLRB 351; Kroder-Reubel Company, Inc , 72 NLRB 240, General d rmature & Manufac-
turing Company, 71 NLRB 413, Maywood Hosiery Mills, Inc, 64 NLRB 146.
10 Maywood Hosiery Mills, Inc, supra . Cf. Phelps Dodge Corporation , 62 NLRB 1287
Aircooled Motor Corporation , 63 NLRB 1043
943732-51-54
834 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
during the election hours, during which time the area adjacent to
the Employer's plant was crowded with demonstrators favoring the
Intervenor ; the pickets and demonstrators were boisterous ; and the
Board agents conducting the election permitted the scene, particularly
an area from 75 to 100 feet surrounding the polling place, to resemble
an "A. F. L. carnival and mass demonstration," all of which conduct
directly interfered with the free choice of a bargaining representative.
The Regional Director reported that the election was conducted
in an open area outside the fence surrounding the south side of the
Employer's plant. The site for the polling place was selected by the
Board agent with the approval of all the parties concerned, in order
that the voters would not be required to pass through, or near, the In-
tervenor's picket line that extended along the front, or east, side of the
plant. Consequently, no voters were required to approach nearer than
20 feet to the pickets, all of whom remained at least 200 feet from the
polling place. All the demonstrators from the Intervenor's affiliates
were requested to and did, in fact, remain on the front side of the plant,
over 200 feet from the polling place. The Regional Director further
found that, under the existing strike conditions, the number of pickets
was immaterial; no demonstrators were within close proximity of the
polling place ; the pickets and demonstrators were not boisterous ; the
voters were not required to pass through the picket line; the atmos-
phere of the polling place and its immediate vicinity was quiet ; and
that no electioneering was carried on close enough to interfere with
the voters.
The Petitioner asserts in its exceptions, contrary to the Regional
Director's findings, that (a) an agreement was reached by the parties
providing for the withdrawal of the Intervenor's picket line from the
plant on the date of the election, and (b) the voters were required to
pass through the picket line. On the basis of the investigation, the re-
port, and the exceptions, we find it unnecessary to resolve these issues.
We conclude, as did the Regional Director, that the acts objected to
did not interfere with the employees' freedom of choice. 'Although the
Employer's plant was picketed by the Intervenor during the time of
the election, it is apparent that the plant also had been picketed by the
same union for a 6-week period before the election. Moreover, the
election was conducted in a quiet manner on a site removed from the
front of the plant and located at least 200 feet away from the picket
line. As the existence of an economic strike is not sufficient, per se,
to prevent the holding of an election," we believe that, absent violence
or any other gross misconduct, the presence of the usual activity ac-
1' Western Auto Supply Company, a Division of Gamble-Skogmo, Inc., 91 NLRB No. 24;
J S Potter Company, Inc, 88 NLRB 199.
WEST-GATE SUN HARBOR COMPANY 835
companying strikes away from the restricted polling area, such as the
picketing objected to here, likewise should not, per se, invalidate an
election otherwise conducted in accordance with the Board's Rules
and Regulations. We therefore overrule these objections.12
Objection No. 10
After its request for a postponement of the election was denied, the
Petitioner further requested that the ballots be impounded. The Pe-
titioner objects and excepts to the Regional Director's denial of this
alternative request for impounding the ballots. We find that the Re-
gional Director did not abuse his discretion in refusing the Petitioner's
request. Clearly, the Petitioner was not prejudiced thereby because,
as shown above, the Regional Director's subsequent refusal to issue a
complaint based upon the allegations in the charges (which also con-
stituted the basis for Petitioner's request) was sustained on appeal to
the General Counsel. Moreover, Petitioner had the right, of which it
has availed itself, to file objections to the election thereby obtaining
Board review of the Regional Director's action.
As we have found that the objections and exceptions raise no sub-
stantial or material issues, they are therefore hereby overruled.
As the challenged ballot cannot affect the results of the election, and
as the tally shows that the Intervenor has secured a majority of the
valid votes cast, we shall certify the Intervenor as the collective bar-
gaining representative of the employees in the unit heretofore found
appropriate.
Certification of Representatives
IT IS HEREBY CERTIrIED that Cannery Workers' and Fisherman's
Union, Seafarers International Union, AFL, has been designated and
selected by a majority of all production and maintenance employees
employed at the Employer's San Diego, California, plant, excluding all
clerical employees, guards, and all supervisors as defined in the Act,
as their representative for the purposes of collective bargaining and
that, pursuant to Section 9 (a) of the Act, the said organization is
the exclusive representative of all such employees for the purposes of
collective bargaining with respect to rates of pay, wages, hours of em-
ployment, and other conditions of employment.
MEMBERS MURDOCK and STYLES took no part in the consideration of
the above Supplemental Decision and Certification of Representatives.
11 See Southern Wood Preserving Company, 89 NLRB 1243 Cf. G. H. Hess, Incorporated,
supra