Wilson & Co., Inc. And United Cannery Agricultural Packing And Allied Workers Of America, Local 216, Affiliated With The Committee For Industrial Organization, 297 (1940)

In the Matter of WILSON & Co., INC. and UNITED CANNERY AGRICULTURAL PACKING AND ALLIED WORKERS OF AMERICA, LOCAL 216,

AFFILIATED WITH THE COMMITTEE FOR INDUSTRIAL ORGANIZATION Case No. C-863.-Decided August 7, 1940 Jurisdiction: produce packing industry.

Unfair Labor Practices In General: responsibility of employer for acts of supervisory employees.

Company-Dominated Union: employer's participation through its agents in formation of and in solicitation of members for-contribution of support to: furnishing meeting place to-discrimination against members of rival outside union.

Discrimination: refusal to reinstate laid-off employees for union membership and activities.

Remedial Orders: reinstatement and back pay awarded; company-dominated union disestablished.

Mr. Thurlow Smoot, and Mr. Lee Loevinger, for the Board.

Mr. James D. Cooney, and Mr. Marshal Wiedel, of Chicago, Ill., for the respondent.

Mr. Thomas H. Quinn, of Faribault, Minn., for the Club.

Mr. Ralph Helstein, for the Minnesota State Industrial Council,

Committee for Industrial Organization.

Mr. Harry A. Sellery, Jr., and Mr. Henry J. Fox, of counsel to the Board.

DECISION AND ORDER STATEMENT OF THE CASE Upon charges and amended charges duly filed by United Cannery,

Agricultural, Packing and Allied Workers of America, Local 216, herein called Local 216, affiliated with the Committee for Industrial Organization, the National Labor Relations Board, herein called the Board, by the Acting Regional Director for the Eighteenth Region (Minneapolis, Minnesota), issued its complaint, dated May 4, 1938, against Wilson & Co., Inc., Faribault, Minnesota, herein called the respondent, alleging that the respondent had engaged in and was engaging in unfair labor practices affecting commerce, within the meaning of Section 8 (1), (2), and (3) and Section 2 (6) and (7) of the National Labor Relations Act, 49 Stat. 449, herein called the Act.

Copies of the complaint, accompanied by notice of hearing, were duly served upon the respondent and Local 216.

In respect to the unfair labor practices, the complaint, as amended during the hearing, alleged in substance: (1) that the respondent dominated and interfered with the formation and administration of, and contributed financial and other support to, a labor organization known as the Employes' Club, herein called the Club; (2) that the respondent discriminatorily refused to reinstate Marie Chavie, Alfred Christensen, LaVerne Hensel, Effie Summers, and Cordelia Thibodeau because of their union membership and activity; and (3) that the respondent by the foregoing and by other acts, interfered with, restrained, and coerced its employees in the exer'cise of the rights guaranteed in Section 7 of the Act.

The respondent filed an answer, dated May 12, 1938, which, as amended during the hearing, denied that the respondent's business affects commerce, within the meaning of the Act, and that the respondent had engaged in the alleged unfair labor practices. The answer affirmatively alleged that Local 216 is a successor to an organization formerly known as Independent Union of All Workers, herein called the Independent, and that the Independent was a lawless and subversive organization.

Pursuant to notice, a hearing was held at Faribault, Minnesota, from May 23 through June 3, 1938, before J. J. Fitzpatrick, the Trial Examiner duly designated by the Board. The Board and the respondent were represented by counsel and participated in the hearing.

At the opening of the hearing the Club, appearing by counsel, moved to intervene in the proceeding. The motion also sought leave for intervention individually by 32 named persons alleged to be members of the Club. The Trial Examiner sustained the Board's objection to the intervention of such persons. He granted the motion to intervene, as to the Club, but limited its participation in the proceeding to the allegation of the complaint that it is company dominated.

Thereafter the Club was represented by counsel and participated in the hearing in accordance with the Trial Examiner's ruling regarding the terms of intervention. Full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing on the issues was afforded all parties.

After its motion to intervene had been granted, the Club then moved for leave to file an answer to the complaint which alleged in substance:

(1) that the Club is an unincorporated labor organization, the members of which are all production employees at the plant; (2) that the Club is not company dominated; (3) that the Club was formed in order that its members would not be required to join and be represented for collective bargaining purposes by Local 216; (4) that Local 216 is the 299 successor to a branch of the Independent, that the objectives of the Independent are violence and strikes, and that Frank Ellis, a leader of the Independent, sought to force himself upon the working people of Faribault, including the respondent's employees, as their collective bargaining representative; (5) that the respondent's production employees constitute a unit appropriate for the purposes of collective bargaining, and that the Club represents 98 per cent of such employees;

and (6) that a question has arisen concerning the representation of the respondent's employees and that such question affects commerce, within the meaning of the Act. The answer concluded, inter alia, with a petition that the Board certify the Club as the collective bargaining representative of the respondent's production employees at the plant. The Trial Examiner denied the Club's application for leave to file the answer, on the ground that it raised issues of representation and other issues not involved in this proceeding. He gave the Club leave, however, to file an answer within the issues of the case.

The Club did not thereafter offer to file such an answer.

During the hearing the respondent and the Club both applied for the issuance of subpoenas. As to certain witnesses and records covered by the respondent's applications for subpoenas, counsel for the Board agreed to produce such witnesses and records. The Trial Examiner therefore did not rule upon those portions of the respondent's applications and he denied the remaining portions of the respondent's applications and the Club's application on the ground that the evidence thereby sought to be adduced was irrelevant to the issues of the case.

During the hearing the Trial Examiner granted the Board's motions to dismiss the complaint as to Thibodeau and to conform the pleadings to the proof. At the close of the Board's case and again at the close of the hearing the respondent moved that the complaint be dismissed in its entirety. The Club moved that the allegations of the complaint that the Club is company dominated be dismissed. The Trial Examiner denied these motions. During the hearing the Trial Examiner made several rulings on other motions and on objections to the admission of evidence. The Board has reviewed all the rulings of the Trial Examiner during the hearing, including those mentioned above, and finds that no prejudicial errors were committed. The rulings are hereby affirmed.

On August 4, 1938, the Trial Examiner filed his Intermediate Report, copies of which were duly served upon the parties. On September 6, 1938, the respondent and the Club filed exceptions to the Intermediate Report. The respondent also requested permission to file a brief and to argue orally before the Board. On April 26, 1939, all parties were granted permission to file briefs with the Board and subsequently the parties were duly notified that the oral argument before the Board was scheduled for June 6, 1939. None of the parties availed itself of the opportunity to file a brief and none appeared before the Board on June 6, 1939, to present oral argument.

On July 6, 1939, acting pursuant to Article II, Section 38, of National Labor Relations Board Rules and Regulations-Series 1, as amended, the Board issued an order, copies of which were duly served upon the parties, vacating and setting aside the Intermediate Report, reopening the record, and authorizing the Regional Director to issue an amended complaint and notice of further hearing. Upon a second amended charge duly filed by Local 216, the Regional Director issued an amendment to complaint dated September 6, 1939, alleging that the respondent was continuing to engage in unfair labor practices, within the meaning of Section 8 (3) of the Act, by discriminatorily refusing to reemploy Chavie, Christensen, Hensel, and Summers because of their union membership and activity. Copies of the amendment to complaint, accompanied by notice of further hearing, were duly served upon the respondent, Local 216, and the Club. Thereafter, the respondent filed with the Regional Director a motion to dismiss the amendment to complaint and at the same time an answer denying the allegations of the amendment to complaint.

Pursuant to notice, a further hearing was held at Faribault, Minnesota, on December 21, 1939, before J. J. Fitzpatrick, the Trial Examiner duly designated by the Board. The Board and the respondent were represented by counsel and participated in the further hearing.

Full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing on the issues was afforded all parties.1 At the opening of the hearing, the Trial Examiner denied the respondent's motion to dismiss the amendment to complaint.

During the hearing the Trial Examiner made several rulings on other motions and on objections to the admission of evidence. The Board has reviewed the rulings of the Trial Examiner at the further hearing and finds that no prejudicial errors were committed. The rulings are hereby affirmed.

On January 6, 1940, the Trial Examiner filed his Intermediate Report on both the hearing and the further hearing, copies of which were duly served upon the parties. He found...