EXHIBIT NO. 1628-Z INTER-OFFICE COMMUNICATION NATIONAL LABOR RELATIONS BOARD OCTOBER 26, 1939. To: Mr. Robert B. Watts, Associate General Counsel. I have your letter of October 20, 1939, concerning your conversations with H. S. Robinson relative to the above cases. Before discussing the considerations mentioned in the third paragraph of your communication it seems in order to offer certain comments upon the statements and representations evidently made by Robinson: He has no alternative but to concede that "violations occurred at the time of the initial relationship between the canneries and the A. F. L. representatives”, There is no question that such violations occurred and that we have the proof Moreover such breaches of the law as we attach in the present cases were accompanied in many instances with the grossest and most brutal form of labor baiting and strike breaking. But most important, the effect of these violations is not restricted to the period of “initial relationship". The formation and organizati a of these unions was accomplished through collusion between the employers and the State leadership of the A. F. L.; control of those unions by those who remain subservient to the employers is perpetuated by the same leadership through such patent devices as elections of officers and ratification of contracts in off season when the rank and file are on withdrawal because not working and thus deprived of vote. As collective bargaining agents these unions are a travesty and sham, and the workers well know it. We are not well enough informed to comment in detail upon Robinson's representations as to stabilization in the industry. To the extent that the master contract between the California Processors & Growers, Inc., and the California State Federation of Labor (and adopted by California Processors & Growers members) covers the industry there has been introduced a certain amount of uniformity of working conditions, as well as labor relations generally. Working conditions have been so little improved, however, as to make this uniformity an illusory improvement. Wages have been raised 21⁄2¢ for hourly workers since the unions were organized three years ago; over nine-tenths of the seasonal employees in a cannery (who constitute 97 per cent of the total force) are piece workers, and none of the contracts since these unions were organized make any provision for piece rates. These rates are as bad or worse than those prevailing before "unionization". The only limitation on hours during the canning season is a twelve-hour day, sixty-six hour week (at least 90 per cent of cannery employees are women). Adjustment of grievances provisions have continually required the aggrieved employee to take up complaints first individually with his superior. Robinson made certain remarks to the effect that termination of the contracts by the Board would permit certain canners to depress wage and hour levels and thus force such a tendency throughout the industry. He exaggerates intemperately. The one force which holds the various canners to contractual relations with the A. F. L. unions year after year is their membership in the California Processors & Growers, Inc. Robinson and St. Sure disclaim any power in that organization to compel canners to become or remain members. Thus the canners are now virtually free to accept or reject the conditions laid down in the contracts with the A. F. L. unions. In addition, under the present contract (Section 13) should any employer obtain more favorable terms with the union all employers parties to the agreement will automatically enjoy the same terms. With such present latitude for voluntary action by individual companies, Board action upon the general contract could have little or no effect upon the maintenance of wage and hour levels. Furthermore the California Processors & Growers mem bership has decreased from sixty-one in 1937 to thirty-nine at present: the reintions of its contracts to the wage and hour standards of the industry as a whole is no longer so important. In the Stockton local (Union No. 20676) officers were elected at a meeting attendet by twelve members and the contract ratified when less than 200 were eligible to vole The total membership of the union was over 3,600, This is typical of all the unlons Robinson seems to have represented to you that the present contracts are not closed shop. In this he is seriously in error. I quote the applicable provision: “SECTION 2. Recognition and Preference of Employment.—The Employer hereby agrees to recognize the Union as the sole agency representing its employees for the purpose of collective bargaining. The Employer shall be the judge of the qualifications of all of its employees, but in the selection of new employees, the Employer will give preference of employment to unemployed members of the local Union without prejudice, provided they have the necessary qualifications and are available for employment at the plant when new employees are to be hired. If such union members are not available for such employment, the Employer may hire any person not a member of the local Union, provided that such employees shall make application for membership in the local Union within ten (10) days after their employment." Moreover the contracts contain strict seniority provisions which operate on the basis of seniority lists agreed to in advance by the employer and the A. F. L. union and from which, in order, employees are hired. These lists are important in this connection since they are based on seniority accumulated only since the date when the first collusive closed shop contract was consummated between Robinson's canners and the A. F. L. organizations. My conversations with representatives of both the canners and the A. F. L. unions leave no question that the parties regard and administer the contract as closed shop. The former claim to require such a provision in order to maintain "uniformity" of labor relations and working conditions in the industry. The latter, through Vandeleur, have readily admitted to me that they need such a provision in order to survive because without the closed shop their membership would rapidly desert them. I therefore conclude that Robinson's structure of collusion between the California Processors & Growers and the State leadership of the A. F. L. is an extremely doddering one resting mainly on coercion through closed shop provisions and surviving through a myriad of devices (such as election of officers and contract ratification as discussed above) which short-circuit the voice of the membership. These considerations are important, I submit, because Robinson, in the name of "realism", has endeavored to convince us that in attacking the present set-up we are destroying “stabilized", "successful” collective bargaining and that therefore we bear the onus of demolishing that which by law we are bound to further. Such is not the case; the present arrangements between the California Processors & Growers and the California State Federation of Labor frustrate the aims and desires of the workers fully as much as in 1937 and have gained for the workers benefits of doubtful if any value. The present situation can truthfully be argued neither as a justification for the means whereby it was achieved nor as redemption for earlier transgressions. Robinson has given me and, I suppose, you as well-glowing pictures of what the employers, through the California Processors & Growers, hope to accomplish in "stabilized", "intelligent" collective bargaining on a "long term basis". In this connection keep in mind one caveat. Robinson was on the steering committee of the campaign on behalf of Proposition No. 1, the California anti-labor referendum measure, the general outlines of which you know, and was a heavy contributor thereto. Judged by his actions Robinson's conception of collective bargaining is at total variance with the purpose and policy of the Act and the Board. The suggestion contained in your third paragraph is an excellent one, and I would be extremely happy to do everything possible for the realization of such an arrangement. Since the contracts are closed shop, however, it would seem necessary to eliminate that feature. In addition the contracts have other provisions which give the present A. F. L. unions an advantage over any competing union. In the main these are the preference of employment, seniority and grievance machinery clauses. Adjustments of these could probably be worked out by elimination of preference of employment clauses, drafting of seniority provisions that recognized periods of employment antedating the collusive dealing in 1937 and provision for similar grievance machinery for each union (or equal) representation of each in the existing machinery). Preservation of uniformity as to wages, hours and other conditions of work could be secured through an agreement that present provisions on these matters continue during the period when there would be no collective bargaining agreement between the employers and any union. If such an arrangement were to give the charging or any other union a fair opportunity to organize the workers it would seem necessary to keep it in effect for the greater part ? an entire canning season (March through October). It should be added here that all of these matters were discussed at get length here with Robinson and St. Sure shortly after the Board ordered rehearing in the case. We took the initiative in opening conversations wit St. Sure during mid-June. He was inclined to go along with such an arrangment and for the purpose of furthering our efforts had me meet with the Board of Directors of the California Processors & Growers and Robinson :: July. At this meeting the entire case was reviewed and the necessity of further hearing explained. The suggestion of consent order was made at 4 willingness manifested to make any reasonable adjustments required by E legitimate business necessities of the canners. Many of such were discussed and concrete proposals thereon made by me. Robinson made a lengthy state ment along the lines sketched in your letter concluding with the declaration. that under such conditions further proceedings were legalistic harassment of the industry and unjustifiable in reason or equity and that therefore the Caufornia Processors & Growers would not in any way stipulate for a consert order. Mention was made of shortening the rehearing by stipulating to te admission of evidence adduced at the former hearing. Robinson flatly rejected this proposal for similar reasons. Thereafter sporadic attempts were made to resume the discussions but without success. I mention these matters merely as reflections upon Robinson's sincer ́ty. He may have changed his attitude since then, but the actions of his couns at the hearing give no evidence of it. The basis of settlement raised in your letter was discussed with the locat Jeadership of the charging union. They are not acerse to such a disposition of the matter. In addition to the suggestion set forth above they mention the necessity of a comprehensive cease and desist and affirmative order laying definite requirements upon supervisory personnel to keep their influence away from this organization of the employees and of the entry of any court decree prior to the period during which ail unions are to have equal organizatio: al opportunities. The local union people feel, however, that this entire matter should be taken up directly with the international officers. In this connection the president of the international fears a raid from the I. L. W. U. in this industry and is therefore touchy almost to the point of unreasonableness in these cases. This is passed along to you for whatever use you may need to make of it. I have commented at such length upon Robinson's statements to you because I felt that he was endeavoring with you, as with me, to charge the Board with striking at conditions in the canneries which were desirable and in conformity with the Act. It is considered important that you and the Board know that such is not the case and that the Board in proceeding further does not, in our opinion, shoulder such a responsibility. On the other hand we do not wish to create by implication the impression that we feel the cases should be tried at all events. There are very definite weaknesses now which lead us to believe that an order setting the present contracts aside would not be enforced. As I informed Mr. Fahy during our discussion this Summer, there is no substantial evidence of active interference by the employers since the original organization of the A. F. L. unions involved. Our proof comes down to this: That in 1937 there was clearcut interference and assistance by the canners in the formation and organization of the A. F. L. unions here involved; that after these unions were set up the canners executed closed-shop contracts with them, obviously in culmination of the former assistance and interference; that at the beginning of the 1938 season the canners executed with the same A. F. L. unions contracts which were in effect closed-shop because they provided for hiring from a seniority list made up on the basis of length of service during the 1937 season when closed-shop contracts were in effect; that at the beginning of the 1939 season contracts embodying closed-shop provisions were executed with the same A. F. L. unions. We have but scattered and insignificant evidence of interference with or assistance to these unions since the organizitional campaign and closed-shop contract of 1937. In light of this factor, the two contracts since 1937 and the lengthy passage of time, our chances of obtaining enforcement of an order setting the 1939 contract aside may seem to you rather slim. If such a long and costly hearing as this cannot result in an enforcible order setting aside the present contracts, you may find little purpose in holding it. The threat of holding the hearing may be a good club to effect such a settlement as is discussed above and should be used to the full for that purpose. Probably we should endeavor to obtain any advantageous settlement since its immediacy and the chances of getting nothing ultimately point out the advisability of pursuing the settlement course to the last extreme. Sincerely, EXHIBIT NO. 1628-AA J. T. MCT. 11/25/39. To: Mr. Watts From: John McTernan Subject: Settlement, Bercut Richards C883 et al. Pardon the long hand. It is Saturday afternoon & stenographers just won't stay every Saturday during football season. Enclosed is a draft of stipulation which represents the best I can get from the respondents & the A. F. L. The way they have bounced me between them I am lucky to have my shirt. I would appreciate your looking it over & letting me know whether its is worth while to go through with it-or better to end matters now & go on with the trial. The phraseology of the Order is sounded as if the Order were to apply to all respondents. Better draftsmanship will be attained by a separate stipulation for each case & the final draft, if any, will be so worded. The enclosure has many faults: 1) Nowhere in the Order is any labor organization mentioned by name. Padway would not consent to the reference to a CIO union. 2) The contracts, with their preference of employment & closed shop, are left standing & the unions given a clean bill of health as to future contracts. 3) There is no back pay for the discrimination cases. Both respondents & the A. F. L. threaten to buck over the settlement on this issue. 4) The Order itself contains language (¶ 4) excepting the contracts from the provisions of the Order. If such a theory is to be adopted the language should be left in the stipulation & kept out of the Order proper. Respondents insisted upon this, however. The general effect of this arrangement of course is to accept & give our blessing to the existing arrangements between the respondents & the AFL. Of course there is some question as to whether there is enough in our case to obtain any greater relief-such as setting the contracts aside. The charging union is up in arms over this form of settlement & will have nothing to do with it. They have not been in the negotiations so far but have been apprised of my "progress." I would appreciate hearing from you before Tuesday at 10 a. m. when we have our final meeting & when the last draft is to be agreed to. To: Mr. Nathan Witt, Secretary. From: Alice M. Rosseter, Regional Director, 20th Region. Subject: Bercut-Richards Packing Company, et al., Cases Nos. C-883 through C-898. There are enclosed herewith copies of stipulations providing a basis for settlement in the following cases: Bercut-Richards Packing Co., C-883 Mor-Pak Preserving Corporation, C-886 Richmond-Chase Company, C-888 Stockton Food Products Inc., C-889 F. M. Ball and Company, C-890 California Conserving Company, Inc., C-892 California Packing Corporation, C-893 Elmhurst Packers, Inc., C-894 Filice and Perrelli Canning Company, Incorporated, C-895 H. J. Heinz Corporation, C-896 Hunt Brothers Packing Company, C-897 Santa Cruz Fruit Packing Co., C-898 In connection therewith we offer the following specific comments: 1 (1) The Order to be entered pursuant to the Stipulation does not affect the contracts presently in effect between the respondents and the various A. F. L unions involved in the proceeding. Neither does the Order provide any period during which collective bargaining relationships, whether contractual or otherwise, are to be held in abeyance. To the extent that the closed-shop contracts had been in effect since the time of the allegedly collusive organization of the unions party thereto, and thus serve as a "culmination and perpetuation of the unfair labor practices involved in the formation and organization of said unions"," the Order has no remedial effect in terms of reestablishing the status quo wherein the free choice of representatives may be exercised by the employees. The inclusion of such a provision was demanded by the A. F. L. representatives as a condition of settlement; the respondents joined the A. F. L. representatives in this stand, purportedly on the threat that if the respondents joined in a stipulation providing for the cancellation or suspension of the contract the A. F. L. union would both enjoin such procedure as well as sue for damages. On the assumption that our effectiveness is measured solely by our ability to restore the status quo, the provisions of Paragraph 4 of the Order render it meaningless. There may be other considerations in connection with this point, however, which are discussed below under general comments. (2) Particular attention is called to the language of Section IV of the Stipulation and the preamble to the Order. This language was insisted upon by respondents as an essential condition to joining the stipulation. The basis of respondents' demand was, first, that this settlement amounted to no more than a plea of nolo contendere, and since in that sense it was a dismissal of the preceedings they had a right to insist upon the full measure of protection against raising the matter in the future as well as possible construction of the Order as an admission, finding or adjudication of guilt. The second basis of their conten tion was language found in the case of Swift vs. United States 276 U. S. 311, whereby Mr. Justice Brandeis held that the jurisdiction of an agency entering a consent order and decree rested upon the consent of the parties, and that provi sions in the decree negativing admission or finding of guilt did not destroy the power to enter the order or decree. Because of the insistence of respondents the provisions referred to were accepted by us as without such acceptance there would have been no stipulation. In view of language in the Swift decision, supra, indicating that while provision in a consent decree negativing admission or finding of guilt was not subject to collateral attack, a direct attack (such as might be provided through enforcement proceedings in the Circuit Court under Section 10) on such a basis might be successful, we deemed it necessary to obtain the language found in Section II of the Stipulation. Aside from the fact that the language in Section IV and in the preamble to the Order raises technical problems as to the Board's power to enter such an order and get it enforced by appropriate decree, this language also establishes a precedent for departure from the usual form of stipulation in such cases. While we should like to see the language in the preamble to the Order deleted and the language in Section IV serviously revised (see our suggestions below), we feel that we are unable to obtain such a concession from the respondents. Perhaps a demand from the Board itself on these points would carry sufficient weight to obtain such a change. Also important in this regard is the indication from the insistence upon such language and the tenor of the language itself of respondents' attitude toward both these proceedings and the general matter of compliance with the Act. They 1 H. J. Heinz Corporation does not have a contract with any of the A F. L. unions here involved, and the language in Paragraph 4 referring to the contract has been deleted from this Stipulation. The language in quotations is a paraphrase of the allegations of the complaints |