Acme-Evans Co., Inc.

National Labor Relations Board - Board Decisions

Aug 22, 1950

90 N.L.R.B. 2107 (N.L.R.B. 1950)

In the Matter of ACME-EVANS COMPANY, INC., EMPLOYER and AMERI-
CAN FEDERATION OF GRAIN MILLERS, A. F. OF L., PETITIONER
Case No. 35-RC-341.-Decided August L2, 1950
DECISION AND DIRECTION OF ELECTION
Upon a petition duly filed under Section 9 (c) of the National Labor
Relations Act, a hearing was held before Harold V. Carey, hearing
officer. The hearing officer's rulings made at the hearing are free
from prejudicial error and are hereby affirmed.
Pursuant to the provisions of Section 3 (b) of the Act, the Board
has delegated its powers in connection with this case to a three-member
panel [Members Reynolds, Murdock, and Styles].
Upon the entire record in this case, the Board finds :
1. The Employer is engaged in commerce within the meaning of
the Act.
2. The labor organization involved claims to represent certain em-
ployees of the Employer.
3. On September 16, 1944, United Cannery, Agricultural, Pack-
ing & Allied Workers of America, Local No. 84, CIO, hereinafter
referred to as Cannery Workers Local 84, was certified by the Board
as bargaining representative of the Employer's production and main-
tenance employees. The Employer and Cannery Workers Local 84
executed a contract on November 26, 1944.1 .
On December 26, 1944, Cannery Workers Local 84 informed the
Employer that it had changed its name to Food, Tobacco, Agricultural
and Allied Workers of America, Local No. 84, CIO, hereinafter re-
ferred to as F. T. A. Local 84. The Employer continued to recognize
and bargain with F. T. A. Local 84 as successor to Cannery Workers
Local 84. Subsequent contracts were entered into between the Em-
ployer and F. T. A. Local 84 in 1945 and 1946 which contained sub-
stantially the same terms as the November 1944 contract. On May
12, 1947, the F. T. A. International and F. T. A. Local 84 entered into
a contract with the Employer which provided that it was to be effec-
' Article XV of that contract provided that during the period of the agreement, as
extended from time to time, it should be binding upon , and inure to the benefit of,
the successors and assigns of the parties.
90 NLRB No. 293.
2107
2108 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tive from April 1, 1947, to and including March 31,1948, and was auto-
matically to continue in effect annually from and after April 1 of each
year thereafter, until the next March 31, unless either party gave writ-
ten notice of termination at least 60 days prior to the then current
annual term of the contract.2 No notice was ever given under the
automatic renewal provision.
Sometime in February 1950 F. T. A. Local 84 was informed that
the F. T. A. International was being expelled from the CIO. On'
February 26, 1950, F. T. A. Local 84 held a meeting at which time
substantially all of the membership unanimously voted to dissolve
F. T. A. Local 84 and to affiliate with American Federation of Grain
Millers, A. F. of L., the Petitioner herein. That meeting was attended
by approximately 110 of the 130 members of F. T. A. Local-84. All
the absent members subsequently consented to the affiliation with the
Petitioner by executing membership cards. On February 27, 1950,
the officers of F. T. A. Local 84 executed an assignment of all assets
to Local No. 184 of the Petitioner, including all rights under the 1947
contract. F. T. A. Local 84 became Local No. 184 of the Petitioner.
On this day the original petition in this case was filed.
On March 1, 1950, the Employer and Local No. 184 of the Petitioner
executed an agreement to the effect that the Employer recognized Local
No. 184 as bargaining representative for its employees, that the parties
ratified and confirmed the 1947 contract, and agreed that it should
continue in effect until March 31, 1951, and as automatically renewed
from time to time thereafter in accordance with its terms. On May
1611950, the Petitioner filed its amended petition.3
The Employer asserts various reasons why the petition in this
case should be dismissed. We "shall consider each of them in detail.
The Employer's first contention is that, although the May 12, 1947,
contract contains a maintenance-of-membership provision and the
Petitioner has not been certified by the Board under Section 9 (e) (1)
of the Act as being authorized to execute such a union-security provi-
sion, the contract constitutes a bar to this proceeding because it was
executed before the enactment of the Labor Management Relations
Act of 1947 and is protected by Section 102 of the Act .4 It is clear
2 Article XVII of this contract is identical to Article XV of the November 1944
contract with regard to successorship.
a Although the F. T. A. International and the CIO were notified of the hearing, none
of their representatives made an appearance.
4 Relevant portions of this section provide : "No provisions of this title shall be deemed
to make an unfair labor practice any act which was performed prior to the date of the
enactment of this Act which did not constitute an unfair labor practice prior thereto, and
the provisions of section 8 (a) (3) and section 8 (b) (2) of the National Labor Relations
Act as amended by this title shall not make an unfair labor practice the performance of
any obligation under a collective bargaining agreement entered into prior to the date of
the enactment of this Act, . . . If the performance of such obligation would not have
ACMEkEVANS COMPANY, INC. 2109
that'the May 12, 1947, contract is a year-to-year contract'', and that, in
accordance with it's renewal provisions and the absence of notice given
thereunder, it has automatically renewed itself each year until the
present time. However, the Employer urges that the exception in Sec-
tion 102 relating to contracts which have been extended or renewed is
applicable only if the parties have, since August 22, 1947, taken af-
firmative action to extend or renew their agreement and, as no such
action has been taken by the parties herein, the protection given this
antecedent contract by Section 102 has not been terminated. We are
unable to find anything in the legislative history or the language of
Section 102 which supports this position. In our opinion any agree-
ment which was renewed or extended after the date of the enactment
of the Act, irrespective of whether the parties took positive or nega-
tive action causing such renewal or extension, loses the protection of
Section 102. Although the absence of Board authorization for a
union-security provision in a contract executed prior to the enact-
ment of the Labor Management Relations Act of 1947 would not pre-
vent such contract from. operating as a bar during the original term
of the contract, any renewal of the contract whether automatic or by
affirmative action of the parties after the effective date of the Labor
Management Relations Act of 1947 is subject to the requirement of
Board authorization of union-security agreements.s Because the 1947
contract as renewed in 1948 contains an unauthorized union-security
provision, we find that it cannot serve as a bar to a present determina-
tion of representatives.7
The Employer's second contention is that the petition, should be
dismissed because there is no question concerning representation. It
urges as inapplicable for two reasons the Board's decision in the
General Box case,8 where we held that an uncertified union's assertion
of majority standing, its expressed desire for certification; and its
formal petition, raised a question concerning representation, notwith-
standing the employer's long and continued recognition of the union.
constituted an unfair labor practice under section 8 (3) of the National Labor Relations
Act prior to the effective date of this title, unless such agreement was renewed or extended
subsequent thereto." ( Emphasis supplied.)
6 We find without merit the Employer 's apparent contention that this is a contract for
indefinite duration.
e The Leland Electric Company, 89 NLRB 497; Salant & Salant, Incorporated, 87
NLRB 215; Joseph A. Goddard Company, 83 NLRB 605.
T The Employer relies on the case of Meier & Co . v. N. L. R. B ., 21 L. R. R. M. 2093
(C. A. 7) as support for its contention that the 1947 contract continues in full force and
effect until such time as one of the parties takes the affirmative action required by the
contract and until such action is taken the parties are fully protected in relying upon the
union-security provisions contained therein. However , without passing upon the obliga-
tions of the parties under the contract itself, we do not construe that decision as fore-
closing the Board from making appropriate exceptions to its contract bar doctrine. P. R.
Mallory & Co., Inc ., 89 NLRB 595.
8 82 NLRB 678.
2110 DECISIONS. OF NATIONAL LABOR RELATIONS BOARD
The Employer's first reason is that in General Box the petition was
not filed, as it was here, during the term of a valid agreement. We
find no merit in this asserted basis for dismissing the petition as we
have held that a union's petition seeking Board certification will be
processed, despite the fact that the union has a present contract with
the particular employer involved.9 The Employer's second reason is
that, unlike the situation in General Box, the Petitioner herein is the
legal successor to Cannery Workers Local 84 and F. T. A. Local 84,
and is in possession of all the rights which those labor organizations
had, including the certification issued by the Board in 1944. The
Employer therefore in effect maintains that the Petitioner has no
need of a certification at this time in order to secure the benefits ac-
corded to a certified union under the Act. However, assuming
arguendo that the Petitioner is legally entitled to the rights of a suc-
cessor under the certification as contended for by the Employer, the
Board's original certification, as previously indicated, is approxi-
mately 6 years-old and was issued in the name of a labor organization
other than the Petitioner. Moreover, during this period changes have
occurred not only in the name of the bargaining representatives, but
also in the Act itself. Under these circumstances, we see nothing in
the Act or in Board policy which precludes the Petitioner from seeking
a certification in its own name.
The Employer's final contention is that even if the Board should
determine that this is a proper case for an election, any certification
issued should be conditioned on the Petitioner's assumption of the
existing collective bargaining agreement. For the reasons stated in
the Boston Machine Works case,10 we do not here pass upon the prop-
erty rights or the collective bargaining duties of the parties with
reference to the current contract.
In view of the foregoing, we find that a question affecting commerce
exists concerning the representation of employees of the Employer
within the meaning of Section 9 (c) (1) and Section 2 (6) and (7) of
.the Act.
4. We find that all production and maintenance employees at the
various mills and elevators of the Employer at Indianapolis, Indiana,
excluding office and clerical employees, truck drivers, watchmen and
all other guards, professional employees, and supervisors as defined
in the Act, constitute a unit appropriate for the purposes of collective
bargaining within the meaning of Section 9 (b) of the Act.
9 California Association of Employers, et al.,, 89 NLRB No. 216 ; Reuben Gordon Shoe Co.,
Inc., 89 NLRB 301.
10 89 NLRB 59.
ACME;-EVANS COMPANY, INC. 2111
DIRECTION OF ELECTION
As part of the investigation to ascertain representatives for .the pur-
poses of collective bargaining with the Employer, an election by secret
ballot shall be conducted as early as possible, but not later than 30
days from the date of this Direction, under the direction and super-
vision of the Regional Director for the Region in ' which this case
was heard, and subject to Sections 203.61 and 203.62 of National Labor
Relations Board Rules and Regulations, among the employees in the
unit found. appropriate in paragraph numbered 4, above, who were
employed during the payroll period immediately preceding the, date
of this Direction of Election, including employees who did not work
during said payroll period because they were ill or on vacation or
temporarily laid off, but excluding those employees who have since
quit or been discharged for cause and have not been rehired or rein-
stated prior to the date of the election, and also excluding employees
on strike who are not entitled to reinstatement, to determine whether
or not they desire to be represented, for purposes of collective bar-
gaining, by American Federation of Grain Millers, A. F. of L.