Kraft Food Co.

National Labor Relations Board - Board Decisions

Mar 2, 1948

76 N.L.R.B. 492 (N.L.R.B. 1948)

In the Matter of KRAFT FOODS COMPANY, EMPLOYER and RALPH J.
KRUEGER, ET AL., EMPLOYEES, PETITIONERS and FOOD DRIVERS, SALES-
MEN, DAIRY AND ICE CREAM WORKERS, INTERNATIONAL TEAMSTERS
UNION, LOCAL No. 463, A. F. L., UNION
Case No. 4-RD-2.-Decided March 2, 1914
Mr. N. S. Parker , of New York City, for the Employer.
Mr. Ralph J. Krueger , of Philadelphia , Pa., for the Petitioners.
Mr. Edward Davis, of Philadelphia , Pa., for the Union.
DECISION
AND
DIRECTION OF ELECTION
Upon an amended petition for decertification duly filed, hearing in
this case was held at Philadelphia, Pennsylvania, on October 24, 1947,
before Helen F. Humphrey, 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 the case, the Board makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE EMPLOYER
Kraft Foods Company, a Delaware corporation, is engaged in the
sale and distribution of food products at its Philadelphia branch,
which is the only facility involved in this proceeding.
During the year 1946, the Employer received at its Philadelphia
branch food products valued in excess of $4,500,000, approximately
all of which was shipped from points outside the State. During the
same period, the Employer at its Philadelphia branch sold products
valued in excess of $4,000,000, approximately 30 to 35 percent of which
was shipped outside the State.
' Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, the
National Labor Relations Board has delegated its powers in connection with this case to a
three-man panel consisting of the undersigned Board Members [ Houston, Reynolds, and
Gray].
76 N. L. R. B., No. 77.
492
KRAFT FOODS COMPANY 493
The Employer admits, and we find, that it is engaged in commerce
within the meaning of the Act.
II. THE PARTIES INVOLVED.
The Petitioners, employees of the Employer,2 assert that the Union
is no longer the representative of the Employer's employees as defined
in Section 9 (a) of the Act.
The Union, a labor organization affiliated with the American Fed-
eration of Labor, claiming to represent employees of the Employer, is
currently recognized by the Employer as the exclusive representative
of the employees involved in this proceeding.
III. THE QUESTION CONCERNING REPRESENTATION
The Union contends (1) that the instant petition is barred by an
existing agreement between the Employer and the Union, (2) that vari-
ous provisions of the amended Act involved in this proceeding are un-
constitutional, (3) that the petition is defective in form, and (4) that
the Board, in any event, has no authority to entertain the petition in
view of the fact that the majority of the employees in the unit in-
volved herein are still members of the Union in good standing. We
shall consider these contentions in more detail below.
(1) The "Contract-Bar" Issue
In 1942 the Employer first recognized the Union as the exclusive
bargaining agent of its salesmen, the employees herein involved, and
a series of contracts were subsequently executed covering these em-
ployees.3 After the expiration of one of these contracts in the summer
of 1947, negotiations were begun for a new contract. Oral agreement
on the terms was reached on August 19, 1947. On September 12, 1947,
the original petition in this case was filed 4 On September 17, 1947,
the oral agreement of the Employer and the Union was reduced to
writing, made retroactive to August 15, 1947, and signed.
The Union contends that under the foregoing circumstances, the
Board is barred from proceeding to a determination of representatives.
As stated in an earlier case,5 when dealing with the question of "con-
tract-bar" in decertification cases, we will apply the same rules of deci-
2 The original petition in this case , filed September 12, 1947, was executed by 17 em-
ployees of the Employer , including Ralph J. Krueger The amended petition, filed on Octo-
ber 1, 1947, was signed by Krueger purporting to act for all 17 employees:,
S From 1942 to 1946 the salesmen , drivers , warehousemen , etc., were all covered by a
single contract in 1946 a separate contract was executed for the salesmen
4 The amended petition was filed October 1, 1947.
Matter of Snow & Nealley Company, 76 N L. R. B. 390.
494 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Sion as are applied in certification cases. In the latter cases we have
consistently held that where, as in the instant proceeding, the petition
was filed while an oral agreement was in effect but before such agree-
ment was reduced to writing and signed, neither the oral agreement nor
the subsequent written contract will bar a determination of representa-'
tives.s This is true notwithstanding the written contract, as in the
instant case, is made effective retroactively as of a date prior to the
filing of the petition.7
We find, therefore, that the instant proceeding is not barred by
any of the foregoing contracts between the Employer and the Union.
(2) The Constitutional Issue
At the hearing the Union moved' to dismiss the amended petition
on the ground that Section 9 (c) (1) (A) (ii) and other provisions
of the amended Act were unconstitutional.
As an administrative agency, this Board is not competent to pass
on the constitutionality of an Act of Congress. That is exclusively
a judicial function. In the absence of any court decision to the con-
trary, the Board assumes that the Act, as amended, does not violate
any provision of the Federal Constitution s
The motion to dismiss on constitutional grounds is, accordingly,
denied. ,
(3) Adequacy of Petition
The Union also moved to dismiss the instant proceeding on the
ground that the petitioners had failed to assert that the Union was
no longer the representative of the employees, but had merely stated
that they no longer desired to be represented by the Union.
Section 9 (c) (1) (A) (ii) provides for the filing of petitions
alleging that a substantial number of employees assert that the cur-
rently certified or recognized bargaining-agent "is no longer a repre-
sentative as defined in Section 9 (a)." Section 9 (a) reads:
Representatives designated or selected for the purposes of collec-
tive bargaining by the majority of the employees in a unit appro-
priate for such purposes, shall be the exclusive representatives of
all employees in such unit for the purposes of collective bargain-
ing.... [Italics supplied.]
6 Matter of Simplicity Pattern Company, Inc, 74 N L R. B 591; Matter of National
Chaar Company, Inc, 74 N. L. R. B 1014
7 Matter of Simplicity Pattern Company , Inc., supra; and Matter of Public Service Cor-
poration of New Jersey, 72 N. L R B 224
8 Matter of Rite-Form Corset Company, Inc, 75 N. L R B 174
KRAFT FOODS COMPANY 495
It is clear from this language that the only assertion required in a
decertification petition is that the currently certified or recognized
bargaining agent is no longer the agent designated or selected by
the majority of the employees in the appropriate unit. The original
petition in this case contained a statement signed by a majority of
the employees in the unit that they no longer desired to be repre-
sented by the Union. The amended petition was on a form pre-
scribed by the Board for use in decertification cases. We believe
that either petition complied with the requirements of the Act. In
any case, any defect in the original petition was cured by the filing
of the amended petition upon a form prescribed by the Board. The
Union's objection to the form of the petition is, accordingly, over-
ruled.
The Union contends further, however, that, even if the instant
petition is in proper form, the Board may not entertain it -under
the provisions of Section 9 (c) (1) (A) (ii) which, the Union main-
tains, were intended by Congress to be used only to decertify labor
organizations which are defunct or the members of which have
withdrawn. At the time the instant petition was filed and at the
time of the hearing thereon, all subscribers to the petition were mem-
bers of the Union in good standing and the Union was actively rep-
resenting them.
Thus, the Union seems to construe Section 9 (c) (1) (A) (ii) as
precluding the raising of a question of representation thereunder if a
majority of the employees in the unit are, as here, members of the
Union sought to be decertified. We find nothing in the language of
the Act or its legislative history to support such a narrow construction.
As already stated, Section 9 (c) (1) (A) (ii), when read together with
the language of Section 9 (a), requires an assertion only that the Union
sought to be decertified is no longer the agent "designated" or "se-
lected" by the majority in the unit. Such an assertion is compatible
with a majority showing by the Union where, as in this case, such
membership is compelled by a union-shop clause and the majority of
the employees in the unit have unequivocally repudiated the Union.
We do not believe that Congress intended to require that in such a case
the employees, as a condition of filing a decertification petition, should
jeopardize their jobs by withdrawing from the Union. Accordingly,
we find that the current majority showing of the Union does not pre-
clude a determination of representatives on the instant petition.
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.
496 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
IV. THE APPROPRIATE UNIT
We find that all salesmen at the Employer's Philadelphia plant,
whose sales are covered by the Employer's own trucks operated out of
its Philadelphia warehouse, excluding all supervisors, guards, and
professional employees, as defined in the Act, constitute a unit appro-
priate for the purposes of collective bargaining within the meaning
of Section 9 (b) of the Act.9
V. THE DETERMINATION OF REPRESENTATIVES
As indicated in an earlier proceeding,10 we are not precluded from
directing an election on the instant petition by the fact that the Union
has failed to comply with the registration and filing requirements of
Section 9 (f) and (h) of the amended Act. Accordingly, we shall
place the Union's name on the ballot in the election directed herein-
after. Under our policy, the Union would be certified if it wins the
election, provided, that at that time it is in compliance with Section 9
(f) and (h) of the Act. Absent such compliance, the Board would
only certify the arithmetical results of the election.,,
DIRECTION OF ELECTION
As part of the investigation to ascertain representatives for the
purposes of collective bargaining with Kraft Foods Company, Phila-
delphia, Pennsylvania, an election by secret ballot shall be conducted
as early as possible, but not later than thirty (30) days from the date
of this Direction, under the direction and supervision of the Regional
Director for the Fourth Region, and subject to Sections 203.61 and
203.62 of National Labor Relations Board Rules and Regulations-
Series 5, among the employees in the unit found appropriate in Sec-
tion IV, above, who were employed during the pay-roll period imme-
diately preceding the date of this Direction, including employees who
did not work during said pay-roll period because they were ill or on
vacation or temporarily laic] off, but excluding those employees 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 excluding
employees on strike who are not entitled to reinstatement, to determine
whether or not they desire to be represented by Food Drivers, Sales-
men, Dairy and Ice Cream Workers, International Teamsters Union,
Local No. 463, A. F. L., for the purposes of collective bargaining.
'This is virtually the unit defined in the current contract between the Union and the
Employer The description has been changed slightly to conform with the provisions of
the amended Act.
10 Matter of Harris Foundry & Machine Company, 76 N L . R B 118.
11 Matter of Hari is Fount? y d Machine Company, supra.