Hygrade Food Products Corp.

National Labor Relations Board - Board Decisions

Mar 28, 1949

82 N.L.R.B. 428 (N.L.R.B. 1949)

In the Matter of HYGRADE FOOD PRODUCTS CORPORATION, EMPLOYER and
ROBERT F. ARMSTRONG , PETITIONER and LOCAL 26, UNTrED OFFICB
AND PROFESSIONAL WORKERS OF AMERICA, CIO, UNION
Case No. 7-RD-33.-Decided March 28,1949
DECISION
AND
DIRECTION OF ELECTION
Upon a petition for decertification duly filed, a hearing was held
before a hearing officer of the National Labor Relations Board. 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 National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-man panel.*
Upon the entire record in this case, the Board finds :
1. The Employer is engaged in commerce within the meaning of the
National Labor Relations Act.
2. The Petitioner asserts that the Union is no longer the bargaining
representative of the employees of the Employer as defined in Section
9 (a) of the Act.
3. Sometime in 1947 the Employer recognized the Union as the
bargaining representative of the employees in the unit described below.
On September 12, 1947, the Union and Employer executed a contract
to be effective from July 22, 1947, to October 1, 1948, and continuing in
effect indefinitely thereafter terminable at will by either party on 30
days' notice. At the hearing, Employer stated that it regards the
contract as still existing. The Union did not appear.'
The contract provides for a union shop and for maintenance of
membership in the Union as a condition of employment. The Union
has not been certified by the Board, under Section 9 (e) (1) of the Act,
as being authorized to execute such a union-security provision. We
•Houston, Reynolds, and Murdock.
1 The Union was served with notice of hearing. The hearing contains no explanation
for the failure to appear. We do not construe the failure to appear, standing alone, an
a disclaimer of the Union's interest in the representation of the employees involved herein.
See Matter of Gabriel Steel Company, 80 N. L. R. B. 1361, and cases cited therein.
82 N. L. R. B., No. 45.
428
EYGRADE FOOD PRODUCTS CORPOR4 1ON 429
have previously held that the "mere existence of such a provision
acts as a restraint upon those desiring to refrain from union activities
within the meaning of Section 7 of the Act ..." 2 The invalid
union-security provision operates to remove the contract bar which
might have been contended. Moreover, the contract is presently termi-
nable at will, and the Board has frequently held that such an agree-
ment cannot operate as a bar to a question of representation."
Accordingly, we find that a question affecting commerce exists con-
cerning the representation of certain employees of the Employer with-
in the meaning of Section 9 (c) (1) and Section 2 (6) and (7) of the
Act.
4. The following employees of the Employer constitute a unit ap-
propriate for purposes of collective bargaining within the meaning
of Section 9 (b) of the Act:
All office and clerical employees at the Detroit, Michigan, plant of
the Employer at 2811 Michigan Avenue, which includes the main
office, Sullivan Wholesale, Dudman Market, and the Eastern Market
Branch, excluding the traffic manager, credit manager, paymaster,
cashier, stenographer for plant manager, stenographer for district
comptroller, stenographer for office manager and trainees for other
branches, assistant office managers, general ledger bookkeeper, ac-
counts payable bookkeeper, Genivieve B. Lux (Breen), Charles Kent,
any persons connected with an executive office of the Employer, and
all other supervisors as defined in the Act.
DIRECTION OF ELECTION
As part of the investigation to ascertain representatives for the
purposes 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-Series 5, as amended, among
the employees in the unit found appropriate in paragraph numbered
4, above, who were employed during the pay-roll period immediately
preceding the date of this Direction of Election, including employees
who did not work during said pay-roll period because they were ill or
on vacation or temporarily laid off, but excluding those employees
Matter of C . Hager ct Sons Hinge Manufacturing Company , 80 N. L. R. B. 163. See
also, Matter of General Electric Company , 80 N. L. R. B. 169.
s Matter of American Lawn Mower Company, 79 N. L. R. B. 367 ; Matter of Rankin
Equipment Co , 79 N. L. R. B. 1439; Matter o f Wisconsin Telephone Company, 75
N. L. R. B. 993.
430 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
who have since quit or been discharged for cause and have not been
rehired or reinstated prior to the date of the election, and also exclud-
ing employees on strike who are not entitled to reinstatement, to
determine whether or not they desire to be represented, for purposes
of collective bargaining, by Local 26, United Office and Professional
Workers of America, CIO.4
Inasmuch as the Union is not in compliance with Section 9 (f), (g), and (h), we
shall certify it if it wins the election , provided that at that time it is in compliance.
Absent such compliance , the Board will only certify the arithmetical results of the
election.