Dairy Cooperative Association

National Labor Relations Board - Board Decisions

Oct 8, 1957

118 N.L.R.B. 1564 (N.L.R.B. 1957)

1564 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ville plant is inappropriate. Nor shall we direct an election in the.
historical unit, on the basis of the Petitioner's alternate contention, as
its showing of interest among the approximately 171 eligible em-
ployees at the Greenville plant is inadequate to support a request for
an election among the approximately 1,100 employees in the division-
wide unit.' We shall, therefore, dismiss the petition filed herein.
[The Board dismissed the petition.]
9In its brief filed after the hearing , the Petitioner requested "a reasonable extension
to obtain additional signatures should the Board determine that the only appropriate
unit is the thirty-four plant unit ." As it would appear from the foregoing that the
Petitioner currently has an inadequate showing among the Employer 's employees in the
historical unit, we find no warrant for delaying this representation proceeding in order
to permit the Petitioner to obtain an increased showing of interest . This request is
therefore denied.
Dairy Cooperative Association and Howard Borge, Petitioner
and Local 305, Dairy, Ice & Ice Cream Employees, Inter-
national Brotherhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America , AFL-CIO. Case No. 36-RD-97.
October 8, 1957
SUPPLEMENTAL DECISION, ORDER, AND DIRECTION
OF ELECTION
On February 1, 1957, the Board issued a Decision and Order 1 dis-
missing the petition in the above-entitled proceeding. The basis of the
dismissal was : (1) That there was nothing in the record to show that
a notice to amend or modify, as required to forestall renewal, was
given prior to the automatic renewal date of the Union's contract with
the Employer; and (2) that as there was nothing to indicate that the
so-called amendment to that contract was intended to be a contract
replacing the original agreement, the petition was barred by the con-
tract as automatically renewed. Thereafter, on July 29, 1957, the
Board, having considered a request by the Petitioner dated June '3,
1957, that the case be reopened and reviewed in the light of additional
evidence submitted to the Board by the Petitioner, and having found
good cause shown therein, directed that a hearing be held on the issues
raised by that additional information .2
1 Not reported in printed volumes of Board Decisions and Orders.
2 We reject the Union 's contention that . the Employer illegally assisted the Petitioner
in the preparation of the request to reopen this case . The only evidence in this regard
is to the effect that when the Petitioner , of his own volition , approached a company official
to. ask how to go about reopening the hearing, the official stated that he would look for
some evidence and supplied the Petitioner with a copy of the Union 's letter of Septem-
ber 5 , 1956, terminating the contract. The letter was the additional evidence supplied
to the Board. However , this is not the degree of assistance which the Board has found
exceeds the bounds of strict neutrality imposed by the statute . See, e. g., Consolidated
,lenders , Inc., 118 NLRB 545, and Bond Stores , Inc., 116 NLRB 1929 . Further, the
118 NLRB No. 212.
DAIRY COOPERATIVE ASSOCIATION 1565
Pursuant to that order,-a hearing was held on August 8, 1957,,before
E. G. Strumpf, hearing officer. The Board 3 has reviewed the hearing
officer's rulings made at the hearing and finds that no prejudicial error
was committed. The rulings are hereby affirmed. This decision,
wherein we find that the contact is not a bar, is based upon our con-
sidered appraisal of the evidence and upon the briefs of the parties.
The facts are not in dispute. The contract, which was the second
following the Union's certification in March 1954,4 was effective 1 year
from November 15, 1955, to November 15, 1956, and provided for auto-
matic renewals from year to year thereafter unless either party gave
at least 60 days notice of "desire to change the agreement." On
September 5, 1956, the Union notified the Company by a letter received
in due course, that the contract "is hereby terminated in accordance
with the regulations of the contract," and requested a meeting "for the
purpose of negotiating a new contract."
As the result of the Union's request, a negotiating meeting was held
on November 9, 1956, at which the Employer's labor relations con-
sultant, Mr. Hay, agreed to all the Union's demands but stated he
would have to secure the approval of the Employer's assistant general
manager, Mr. Davidson, before the agreement would be final. On
November 10 or 11, Mr. Hay telephoned the Union and left a message
that Mr. Davidson had agreed to the changes but wanted to clear them
with the general manager, who would not be available until that
evening. There is no testimony as to any further conversations be-
tween the Employer and the Union concerning the general manager's
approval, but on November 20, 1956, Mr. Hay mailed to the Union a
letter summarizing the changes agreed upon and advising that he was
authorized to submit to the Union, for signature and transmittal to the
Company for its signature, the "amendment to the agreement." I
The Union received Mr. Hay's letter and the amendment on No-
vember 21, 1956, executed it on that date, and forwarded the document
to the Company for signature. About a week later, the Union received
testimony reveals no affirmative evidence to show that the Employer instigated the re-
quest to reopen. Southeast Ohio Egg Prodaaets, 116 NLRB 1070. We note, also, that the
Union's representative stated cn the record that the Union would have supplied the
Petitioner with a copy of the letter.
3 pursuant to the provisions of section 3 (b) of the National Labor Relations Act, the
Board has delegated its powers in connection with this case to a three-member panel
[Chairman Leedom and Members Murdock and .lenkius].
4 Case No. .1,6-RC-1011. The certification appears to have been issued following a
consent election.
cAll references in the letter and document are to amendment. rather than to 'a new
contract. The document is entitled "Amendment to the Solicitor-Salesman Agreement"
and provides that it is made December 1, 1956. It amends the 1955 contract in the
.following - material respects- (1) The contract is made effective from ,December 1, 1956,
to December 1, 1958; (2) salaries are to be increased )15 per month on December 1, 1956,
and on Deceniber 1, 1957; (3) the health andwelfare fund provision may be reopene(1,
at the Union's option, "after 12 months from the effective date of said contract," which
is again stated to be December 1, 1956 ; and (4) a pension plan is adopted effective
.7une 1, 1957. The wage increases were made effective Ion December 1 rather-than
November 15 solely for the Employer's bookkeeping purposes.
1566 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
a copy of the amendment signed by the Employer's general manager.
The execution date of November 21,1956, shown on the document, was
apparently inserted at the time it was executed by the Union's
representative.
While the above events were proceeding looking toward the early
completion of the planned amendment, the four employees in the
unit met and unanimously decided to withdraw from the Union.
According to the Petitioner, about a week before November 20. 1956,
the date on which the petition was filed and also the date on which
the "amendment" was forwarded to the Union for signature, the
employees informed the Company of their decision and were referred
to the Union. Thereafter, they visited the Union's representative
and advised him that they no longer wished the Union to represent
them. The union representative took the position that since a con-
tract had been negotiated granting all their demands, the employees
must remain in the Union. As indicated above, the petition was-
filed on November 20, 1956.
The union representative testified that the Union routinely sends
a letter of termination rather than of modification in order that
the Union may be in a position to consider the contract terminated
and take strike action if agreement is not reached, but that otherwise
no question of termination would arise. It is apparently the Union's
position that since peaceful agreement was reached in this instance,
the letter was in effect one of modification and did not terminate the
contract. However, the September 5 letter clearly forestalled the
automatic renewal of the 1955 contract. Furthermore, even if viewed
as a request to modify, a letter of modification would have had the
effect of forestalling renewal, since it falls under the provision for
such renewal, absent notice of "desire to change the agreement."
The Union, in addition, contends that it was understood that the
notice of termination was to be disregarded and that the 1955 con-
tract would be automatically renewed, or that, in the alternative, if'
it was terminated, full agreement was reached on a new contract,
before the petition was filed and before the expiration of the 1955
contract.
As indicated, the Union contends that the contract automatically
renewed itself because it was understood that the parties would dis-
regard the notice of termination. Although the revisions are referred
to throughout as "amendments" and are set forth in a document.
which purports to amend only certain sections of the 1955 contract,.
we find that the so-called amendment is a new contract which incor-
porates by reference the unchanged provisions of the prior contract
and was intended to replace that contract. Our conclusion in this
respect is supported particularly by the changes in the effective date
DAIRY COOPERATIVE ASSOCIATION 1567
and the duration clause . Thus, had the prior contract automatically
renewed itself, it would, by its terms, have been effective for 1 year
from November 15, rather than for 2 years from December 1. The
fact that the effective date of the revised wage provision may have
been postponed for a valid reason 6 is immaterial, since no explanation
is offered for the hiatus between the termination date of the 1955
contract and the effective date of the "amendment" as set forth in the
amended duration clause.
In addition, the testimony as to the alleged understanding is limited
to what the Union understood. However, even if there were such
a mutual agreement as to automatic renewal, it was never reduced to
writing and, under the parol evidence rule, would be inadmissible to
alter the effective date set forth in the revised duration clause of the
subsequently executed document.' Furthermore, the oral agreement,
if it existed, would be ineffective for purposes of the Board's contract-
bar rules, either as an agreement to withdraw the termination notice 8
or as an extension agreement.°
The fact that the Employer and the Union continued to operate
under the terms of the 1955 contract between November 15 and De-
cember 1 does not affect our conclusion herein. This is customary
practice during periods of negotiations for new collective-bargaining
contracts, and absent a contrary agreement in writing, such continu-
ation constitutes merely an interim agreement of indefinite duration
which cannot bar a timely petition.10
The Union further contends, as noted above, that if the contract was
terminated by notice, full agreement on a new contract was reached
before the filing of the petition and before the expiration of the 1955
contract. Under these circumstances, even if full agreement were
reached on the new contract before the filing of the petition, it was an
oral agreement which, under well-settled principles, does not bar this
petition."
On the basis of the foregoing, we find, contrary to the Union's
contention, that when, on November 20, 1956, the petition herein was
filed, the parties had failed to renew their old contract which had
expired at the end of its term on November 15; and that, as a result,
$ Royal Dalton, Ltd., 112 NLRB 760.
7 W. L. Meade, Inc., 113 NLRB 1040.
8 Peters Sausage Company, 95 NLRB 740.
9 Powhatan Brass and Iron Works, 85 NLRB 950.
10 New Jersey Porcelain Company, 110 NLRB 790.
11 Continental Bus Systems , Inc., 84 NLRB 670. American Smelting and Refining
Company, Silver Bell Operation , 118 NLRB 915, which the Union cites, is clearly dis-
tinguishable . Even if there were an agreed document which had not yet been signed
by the parties in the instant case , the Employer's continuation of the unchanged terms
of the prior contract does not satisfy the requirement . that, lacking a signed agreement,
substantive provisions must have been placed in effect. Oswego Falls Corp., 110 NLRB
621. It does not appear in the present case that sufficient provisions were in effect at
the time of the filing of the petition to establish a new contract.
1568 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
no valid agreement had been executed which could effectively constitute
a bar to this proceeding."
Accordingly, we find that a question affecting commerce exists con-
cerning the representation of employees of the Employer within the
meaning of Section 9 (c) (1) and Section 2 (6) and (7) of the Act.
In agreement with the stipulation of the parties, we find that a unit
of all outside salesmen employed by the Employer at its fluid milk op-
erations at Portland, Oregon, excluding all other employees, guards,
office clerical employees, professional employees, and supervisors as
defined in the Act, constitutes an appropriate unit for the purposes of
collective bargaining within the meaning of Section 9 (b) of the Act.
[The Board vacated the Decision and Order issued on February 1,
1957, dismissing the petition.]
[Text of Direction of Election omitted from pub] ication.]
°JIt. Clemens Metal Products Company, 110 NLRB 931.
R. M. Ramsey and Claude Ramsey, d/b/a Ramsey Winch' Mfg.
Co. and Lodge 790 , International Association of Machinists,
AFL-CIO. Case No. 16-CA-915. October 11, 1957
DECISION AND ORDER
On January 31, 1957, Trial Examiner Wheatley issued his Inter-
mediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the copy of the Inter-
mediate Report attached hereto. The Trial Examiner also found
that the Respondent had not engaged in certain other unfair labor
-practices alleged in the complaint. Thereafter, the General Counsel
filed exceptions to the Intermediate Report,' together with a sup-
porting brief.
Pursuant to the provisions of Section 3 (b) of the National Labor
Relations Act, as amended, the Board has delegated its powers in
connection with this case to a three-member panel. [Members
Rodgers, Bean, and Jenkins].
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error vas committed.
.1 These exceptions were directed to the Trial Examiner's recommendation that the
.complaint's allegation. of a Section 8 (a) (3) violation be dismissed. No exceptions were
filed by the Respondent to the 8 (a) (1) findings of the Trial Examiner.
118 NLRB No. 220.