Food Haulers, Inc.

National Labor Relations Board - Board Decisions

Mar 19, 1962

136 N.L.R.B. 394 (N.L.R.B. 1962)

394 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that an election be held among the employees in the appropriate unit.
The motion of New Laxton to dismiss the petition is therefore hereby
denied.
ORDER
IT IS HEREBY ORDERED that the name "J & W Coal Company" be, and
the same hereby is, substituted in place and stead of the name "New
Laxton Coal Company" as the Employer in the proceeding herein, and
that an election be held among the employees in the appropriate unit .3
[Text of Fourth Direction of Election omitted from publication.]
MEMBER RODGERS, dissenting :
I would not issue this Fourth Direction of Election. I would dis-
miss the petition for the reasons set forth in the Second Supplemental
Decision in this case--reasons which are not applicable to J & W Coal
Company.
8 The appropriate unit was described as follows in our Supplemental ' Decision, Order
and Direction of Election , 130 NLRB 910, 911: "All employees at the Employer's Clinch-
more, Tennessee , coal mine, excluding office clerical employees , engineering and technical
employees , professional employees , guards, foremen, and all supervisors as defined in the
Act."
Food Haulers , Inc. and District 50, United Mine Workers of
America, Petitioner
Food Haulers , Inc. and John J. Uanis, Petitioner .and Local
Union 863, affiliated with International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of America.
Cases Nos. 22-RC-1078 and 22-RD-85. March 19, 1962
DECISION AND ORDER
Upon petitions duly filed and consolidated, a hearing was held
before Richard W. Coleman, hearing officer. The hearing officer's
rulings made at the hearing are free from prejudicial error and are
hereby affirmed.
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 organizations named below claim to represent certain
employees of the Employer.'
3. No question affecting commerce exists concerning the representa-
tion of employees of the Employer within the meaning of Section
9 (c) (1) and Section 2 (6) and (7) of the Act for the following reasons :
1 The Petitioner in Case No. 22-RD-85 asserts that the Union is no longer the recog-
nized bargaining representative of the employees in the unit as defined in Section 9(a) of
the Act.
•136 NLRB No. 36.
FOOD HAULERS, INC. 395
The employer and the Intervenor contend that their 5-year contract,
executed on December 5, 1960, is a bar to the petitions herein, which
were filed on December 15, and December 27, 1960, respectively. As
the petitions were filed more than 150 days before the end of the first
2 years of the contract term, clearly the contract is a bar under our
rules unless there is some defect making it invalid for contract bar
purposes. Deluxe Metal Furniture Company, 121 NLRB 995.
The contract asserted as a bar contains the following provision :
It shall not be the duty of any employee nor shall any employee at
any time be required to cross a picket line and resusal [sic] of
any employee at any time to cross a picket line shall not consti-
tute insubordination nor cause for discharge or disciplinary
action.
Our dissenting colleagues contend that the above clause is unlawful
under Section 8 (e) of the Act 2 and that, therefore, the contract is not
a bar under the holding in Pilgrim Furniture Company, Inc., 128
NLRB 910 (Member Fanning, dissenting). The Board has recon-
sidered the Pilgrim Furniture decision and a majority now believes
that it should no longer be followed.
The contract-bar rules are not prescribed by statute. They are a
creation of the Board and have been changed from time to time.'
Their purpose is to strike a balance between the competing statutory
objectives of stability in labor relations, and employee freedom of
choice in selecting a bargaining representative.4 In the Hager Hinge
case I the Board said that it would not hold as a bar a contract contain-
ing an unlawful union-security clause because the "existence of such
a provision acts as a restraint upon those desiring to refrain from
2 Section 8(e) reads as follows:
(e) It shall be an unfair labor practice for any labor organization and any em-
ployer to enter into any contract or agreement , express or implied, whereby such
employer ceases or refrains or agrees to cease or refrain from handling, using , selling,
transporting , or otherwise dealing in any of the products of any other employer, or
to cease doing business with any other person, and any contract or agreement entered
into heretofore or hereafter containing such an agreement shall be to such extent
unenforcible and void: Provided , That nothing in this subsection (e) shall apply to
an agreement between a labor organization and an employer in the construction in-
dustry relating to the contracting or subcontracting of work to be done at the site
of the construction , alteration , painting, or repair of a building , structure , or other
work: Provided further, That for the purposes of this subsection ( e) and section
S(b)(4)(B ) the terms "any employer ", "any person engaged in commerce or an in-
dustry affecting commerce ", and "any person " when used in relation to the terms
"any other producer , processor , or manufacturer", "any other employer", or "any
other person" shall not include persons in the relation of a jobber , manufacturer,
contractor , or subcontractor working on the goods or premises of the jobber or manu-
facturer or performing parts of an integrated process or production in the apparel
and clothing industry: Provided further, That nothing in this Act shall prohibit the
enforcement of any agreement which is within the foregoing exception.
s Local 1545, United Brotherhood of Carpenters and Joiners of America , AFL-CIO
v. Merle D. Vincent , Jr. (Pilgrim Furniture ), 286 F 2d 127 (C.A. 2).
4 Boyd Leedom v. International Brotherhood of Electrical Workers ( General Cable Corp.),
278 F . 2d 237, 241-244 (C .A.DC.) ; General Motors Corporation , 102 NLRB 1140.
5 C. Hager 1 Sons Hinge Manufacturing Company, 80 NLRB 163.
396 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
union activities within the meaning of Section 7 of the Act. . . ." In
other words, such a clause interferes with one of the objectives sought
to be balanced by the bar rules. As Member Fanning in his dissent in
Pilgrim cogently pointed out, the majority in Pilgrim Furniture ap-
plied the existing contract-bar concept to an entirely different kind
of situation. A "hot cargo" clause, although unlawful, does not in
any sense act as a restraint upon an employee's choice of a bargaining
rep'resentative8
Moreover, the remedy applied against the alleged illegal "hot cargo"
clause in a representation proceeding under the majority doctrine in
Pilgrim is much more drastic than is permitted by the statute in unfair
labor practice proceedings. Thus, Section 8(e) provides that any
contract or agreement containing an unlawful "hot cargo" provision
"shall be to such extent unenforcible and void." In an unfair labor
practice proceeding, if the Board found after litigation that a dis-
puted clause violated Section 8 (e), it would not and could not set aside
the entire contract but only the unlawful clause' Yet under the
holding of the majority in Pilgrim, in a representation proceeding
where the issue of legality of an alleged "hot cargo" clause is collateral
at best, the entire contract would in effect be set aside on a finding
that the contract contained a "hot cargo" provision. We can perceive
no rational basis for a sanction so much more drastic in a representa-
tion than in an unfair labor practice proceeding, even assuming
that the Board has the power so to do. In fact, such a drastic remedy
seems to be inconsistent, as pointed out above, with the stated purport
of Section 8 (e).8
6 The Board has consistently refused to permit litigation of unfair labor practice issues
in representation proceedings The exception was made in the case of unlawful union-
security clauses, as pointed out above, because such clauses-unlike the clause here in
issue-impinge directly upon an employees ' free choice of a bargaining representative,
which a representation proceeding is designed to ascertain. Paragon Products Corporation,
134 NLRB 662, dealt with the scope of this exception, and it is in this context that
the language quoted by the dissent is to be read . Neither Paragon nor our decision herein
constitutes an endorsement of unfair labor practices , real or alleged On the other hand,
both decisions are calculated to preserve the balance between stability and freedom of
choice which the contract-bar policy is designed to achieve and, at the same time, to
preserve as far as possible the difference in the functions designed to be served by repre-
sentation proceedings and by unfair labor practice proceedings . This difference , we assume,
our dissenting colleagues acknowledge.
7 American Food Company, 134 NLRB 481
8 We do not read the affirmance of Pilgrim in Local 1545 , United Brotherhood of Car-
penters and Joiners of America, AFL-CIO v Merle D Vincent, Jr., supra, as requiring a
different result than that reached above The court in the cited case recognized that
contract-bar rules are a matter for the sound discretion of the Board which the Board
may apply or waive in the interest of stability and fairness in collective-bargaining rela-
tions The court did not approve the Pilgrim bar rule as such. All it held was that the
adoption of the rule was not a violation of a "clear statutory command" within the mean-
ing of Boyd S Leedom v. William Hyne, 249 F 2d 490 (C.A.D C ), affd. 358 U S 184, so
as to permit a suit to enjoin the enforcement of the Board' s decision and direction of
election . Judge Moore dissented and would have held Leedom v. Kyne applicable upon
the ground that the majority in Pilgrim had "entirely misconstrued the import of a clear
statutory provision in exercising its admittedly broad discretion ." ( 286 F . 2d 127, 134.)
FOOD HAULERS, INC. 397
Accordingly, without deciding whether the clause set out above is
violative of Section 8(e), we overrule the contract bar rule promul-
gated in the Pilgrim case, and find the existing contract a bar to the
petitions in the present case .9 We shall therefore dismiss the petitions.
[The Board dismissed the petitions.]
MEMBERS RODGERS and LEEDoM dissenting :
For the reasons set forth in the principal opinion in Pilgrim'Fur'ni-
ture Company, Inc., 128 NLRB 910, and on the basis of the affirmance
of the case by the United States Court of Appeals in Local 1545,
United Brotherhood of Carpenters a{nd Joiners of America, AFL-
CIO v. Merle D. Vincent, Jr., 286 F. 2d 127 (C.A. 2), we would ad-
here to the holding of that case."
The majority's decision to overrule Pilgrim reflects, in our opinion,
a departure from the well-settled practice of this Board to refuse to
consider as a bar to an election, a contract which directly contra-
venes the provisions of the Act.
In their recent opinion in the Paragon case , our colleagues stated : It
Basic to the whole of contract-bar policy is the proposition that
the delay of- the right to select representatives can be justified
only where stability is deemed paramount. Thus, the Board has
excepted from the contract-bar rule certain types of contracts
which in its considered judgment did not foster industrial sta-
bility such as . . . contracts which themselves were in conflict
with the policies of the Act, e.g. a contract containing an illegal
union-security clause. It has been the Board's view that any
stability derived from such contracts must be subordinated to
employees' freedom of choice because it does not establish the
type of industrial peace the Act was designed to foster.
We are in complete agreement with the above statement, but we
find the result and reasoning in the instant case inconsistent with it.
Thus, according to the majority, contracts containing unlawful union-
security clauses will not "establish the type of industrial peace the
Act was designed to foster," and will not bar elections; but contracts
containing unlawful "hot cargo" clauses will hereafter be found to
establish the aforementioned type of industrial peace, and will be
held to bar the employees' statutory right to an election.
0 Cf. Paragon Products Corporation , supra.
10 Member Leedom, who dissented in the Pilgrim case on the ground that the contract
therein was executed prior to the effective date of Section 8(e), later joined the majority
of the Palgrini case in American Feed Company , 129 NLRB 321. The contract in the latter
case was executed subsequent to the effective date of Section 8(e).
11 Paragon Products Corporation , 134 NLRB 662, in which we dissented from the
majority 's revision of the then applicable rule with respect to the type of union-security
clauses which will remove a contract as a bar.
398 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The majority would justify this inconsistent application of the
Board's contract-bar rules on two grounds : First, that a contract with
an unlawful "hot cargo" clause envisages "an entirely different kind
of situation" from that involving a contract with an unlawful union-
security clause; and second, that the "remedy" under Pilgrim is
"much more drastic than is permitted by the statute in an unfair
labor practice proceeding."
• As to our colleagues' first ground, we do not believe that there is
any difference in kind between an unlawful "hot cargo" clause and an
unlawful union-security clause-merely a difference in form. The im-
portant factor which is common to both is that both clauses violate
the Act and are "themselves . . . in conflict with the policies of the
Act." Congress did not draw any distinction between the gravity of
one unfair labor practice provision and another; a violation of Sec-
tion 8(e) is thus no less onerous, and no less an infringement on the
public rights the Act is designed to protect, than a violation of Sec-
tion 8(a) (3). Thus, all contract clauses which are unlawful under
the unfair labor practice provisions of the Act, should be treated as
such for contract-bar purposes.
As to our colleagues' second ground, we fail to see how they can
describe the "remedy" under Pilgrim as "drastic." In Local 1545,
Carpenters etc., supra, the court was faced with the same argument
made by our colleagues here, namely, that the Board in holding con-
tract containing an unlawful "hot cargo" clause was not a bar to an
election, had exceeded the statutory direction that "any contract .. .
containing such an agreement shall be to such extent unenforcible and
void." As stated by the court, at p. 1827:
The argument places too heavy a strain on the quoted words-
their purpose seems to have been simply to make clear that the
presence of a hot-cargo clause in an agreement should not in-
validate other provisions such as those relating to wages and
hours . . . it can hardly be contended that Congress meant to re-
quire the Board to give contract-bar protection to an agreement
the making of which was an unfair labor practice.
Moreover, our colleagues are apparently applying a loose definition
to the term "remedy," for the Board does not "remedy" unlawful
contracts in representation proceedings. The Board, in such proceed-
ings, merely determines whether a contract qualifies for contract-bar
protection-and in determining that a contract is no bar, the Board
does not set the contract aside, either in whole or in part. Although
such remedial action may be taken in an unfair labor practice pro-
ceeding, in representation matters the contractual rights and duties of
ORKIN EXTERMINATING CO. OF SOUTH FLORIDA, INC. 399
the parties are completely unaffected by the Board' s contract-bar
resolution.
Accordingly, and assuming, as does the majority, that the clause
herein violates Section 8(e), we would hold that the contract involved
does not constitute a bar, and we would direct an election herein.
Orkin Exterminating Company of South Florida, Inc. and Jessie
S. Glawson and Teamsters, Chauffeurs and Helpers, Local
Union No. 79, International Brotherhood of Teamsters , Chauf-
feurs, Warehousemen and Helpers of America . Cases Nos.
12-CA-2067-1 and 12-CA-.2107. March 20, 1962
DECISION AND ORDER
On January 10, 1962, Trial Examiner James V. Constantine issued
his Intermediate 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 Intermediate
Report attached hereto. Thereafter, the Respondent filed exceptions
to the Intermediate Report and a brief in support thereof.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
these cases to a three-member panel [Chairman McCulloch and Mem-
bers Leedom and Brown].
The Board has reviewed the rulings made by the Trial Examiner at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Intermedi-
ate Report, the exceptions, the brief, and the entire record in these
cases , and hereby adopts the Trial Examiner's findings,' conclusions,
and recommendations.
For the following reasons, we agree with the Trial Examiner that
the Respondent, by calling individual employees to the office of its
general manager, Kolkana, on June 20, 1961, and interrogating them
about union activities, violated Section 8(a) (1) of the Act: These
inquiries were not shown to be for the purpose of determining the ex-
tent of the Union's representation for any legitimate objective; were
not in all instances accompanied by assurances to the employees that
there would be no reprisals; included an inquiry as to "who was in
1 The Respondent appears to be one of many Orkin corporations located throughout the
United States. As the Board has already asserted jurisdiction over the Orkin corporations
in Orkin Exterminating Company, Inc ., 115 NLRB 622 , we find, for the reasons there stated
and in agreement with the Respondent 's admission, that Respondent 's operations meet the
Board 's jurisdictional standards.
136 NLRB No. 40.