Carpinteria Lemon Ass'n v. National Labor Relations Board

JAMES ALGER FEE, Circuit Judge

(dissenting).

The amendment of certification of election made by the Regional Director on November 21, 1954, naming the United Packinghouse Workers of America in place of United Fresh Fruit & Vegetable Workers, LIU, which was actually chosen and balloted for by the workers in the *559 plant on November 4, 1953, over a year earlier, is null and void. The clause in the consent election agreement gave no authority for this substitution without consent of the electors. The majority passes over this point in silence.

All of the negotiations and incidents related to the period when United Fresh Fruit & Vegetable Workers, LIU, was the certified agent. The employers objected to the entry on the scene of United Packinghouse Workers of America after their respective employees had protested against this substitution and after the national organization had can-celled the charter of United Fresh Fruit & Vegetable Workers, LIU, which was the certified bargaining unit after the election held more than a year previously. The device of conferring the same number 78 on the new unit cannot avail.

“The vote of the employees is the decisive factor in securing ‘that freedom of choice which is the essence of collective bargaining.’ * * * Here the men voted for the Blacksmiths and the result was duly certified. They did not vote for the Boilermakers. No second election was held after that certified February 2, 1953.” Dickey v. National Labor Relations Board, 6 Cir., 217 F.2d 652, 655 .

In the above cited case an amendment to certification was held void upon circumstances which afford no logical distinction. Here, if another election had been held, it is apparent United Packinghouse Workers of America local would not have been chosen as the bargaining agent.

The two unions are not identical. 1 The engagements of the previous local toward the workers employed by the various appellants and toward the employers are not binding on the present unit. M & M Wood Working Company v. National Labor Relations Board, 9 Cir., 101 F.2d 938 .

We adopt the statement of the brief of Santa Clara Lemon Association as to the changes which prove conclusively that these two locals are entirely different entities and that the employees of the various packinghouses might well desire to be represented by a different group.

“The following summary of the pertinent facts and the law clearly illustrates a change of union without the employees’consent: (1) Petitioner consented to a Board election with the Fruit & Vegetable Union on the ballot; (2) a majority of the employees voted for the Fruit & Vegetable Union on November 4, 1953; and it was duly certified by the Board on November 13, 1953; (3) Petitioner did not consent to an election having the Meatpackers’ International or the Meatpackers’ Local on the ballot; (4) the employees did not vote for the Meat-packers’ International or the Meat-packers’ Local; (5) no second election was held after the November 4, 1953 election; (6) the employees in Petitioner’s production unit had a basic statutory right to express their choice; (7) their choice was expressed in favor of the Fruit & Vegetable Union but not in favor *560 of the Meatpackers’ International or the Meatpackers’ Local; (8) the Meatpackers’ International amalgamated with the Fruit & Vegetable Union, and in the process absorbed the latter; (9) in the amalgamation the charter and seals of the Fruit & Vegetable Union were cancelled, its office titles were set aside, its officers were removed; (10) following the merger the Meatpackers’ International was in complete and exclusive control through Administrator Stephens and Deputy Administrator Simonson; (11) the Meat-packers’ International chartered, set up and operated through its new . Meatpackers’ Local, which it maintained in an administratorship status; (12) the administrator of the Meatpackers’ Local is Anthony T. Stephens, a vice-president of the Meatpackers’ International; (13) Mr. Stephens operates from his offices in Chicago, Illinois where the home offices of the Meatpackers’ International are located; (14) the deputy administrator of the Meat-packers’ Local is Gilbert Simonson, who is an international representative of the Meatpackers’ International; (15) Simonson’s appointment as deputy administrator was made by the executive board of the Meatpackers’ International, which is his employer; (16) Simonson works under the direction of Administrator Stephens; (17) Simonson’s offices and those of the Meatpackers’ Local are in Salinas, California; (18) the Meatpackers’ International has 150,000 members as compared with 18,000 members in the Fruit & Vegetable Union; (19) the Fruit & Vegetable Union had complete control of the union for which the employees voted on November 4, 1953 — they have no control of the amalgamated union, either International or Local; (20) the charges in the instant action were filed by the Fruit & Vegetable Union, and not by the Meatpackers’ Union (Local or International).

“The employees in the instant case voted to bargain collectively through the Fruit & Vegetable Union. They have never voted to bargain through a union whose official representation gives control to an organization other than the Fruit & Vegetable Union. In the instant case, and in the absence of a second election, every detail of administration and control was arbitrarily taken over by the 150,000-member Meatpackers’ International from the 18,000-member Fruit & Vegetable Union. The Fruit & Vegetable Union has disappeared as an entity. Deputy Administrator Simonson doesn’t even know what offices or officers were in the Fruit & Vegetable Union.

“The new Meatpackers’ Local controls neither administrative details, nor policy — such matters are under the exclusive control of the Meat-packers’ International acting through Administrator Stephens and Deputy Administrator Simon-son.”

The proposition that the workers in each of these voted for representation by United Packinghouse Workers Local is negated by the following factors: (1) The charter of the former local was direct from National CIO, whereas the present has an entirely different charter as a local of Meatpackers’ International. (2) The trusteeship of all the affairs of this local and of all its bargaining powers was apparently not possible under its former affiliation. (3) The assumption of dictatorial powers by the Administrator and the Deputy proves that the representation of the workers by the present unit is not legally or morally identical with the former local, which is now destroyed.

The sanction of the courts of such control of a local without consent thereto by local workers at a particular plant at *561 a Board supervised election is undemocratic and against the essential interests of the public at large.

The cause should be remanded for further consideration by the Board, which has machinery to work out a proper result.

. The opinion of the majority says, at page 3, that “the officers remained the same.” Vet in the most recent of the hearings there is testimony, by the deputy administrator of the Packinghouse Local, to the effect that “under the administratorship yon don’t have no officers of a union.” The record also shows that the President and Vice-President and Secretary-Treasurer of the Fruit & Vegetable Local, MU, at the time of the last hearing, no longer retained their former offices under the Packinghouse Local. The ex-President is now stationed in Phoenix, Arizona, as a business agent of the present union. The former Vice-President has a broader territorial scope, but is now only a business agent of the Packinghouse Local. Helen Parker, previously Secretary-Treasurer of the Fruit & Vegetable Local, LIU, is now a secretary at Salmas. It is further reported: “Q. Does Local No. 78 of the Packing House Workers at the present time have an Executive Board? A. In an administrator-ship, I don’t, well, you just don’t have an Executive Board.”