Parker Brothers and Co., Inc.

National Labor Relations Board - Board Decisions

Oct 25, 1957

119 N.L.R.B. 139 (N.L.R.B. 1957)

PARSER BROTHERS AND CO., INC. 139
recommend wage increases . In addition, the branch stores are widely
:separated from the central office, being from 75 to 120 miles away
from Duluth.
In these circumstances, we find that the unit sought by Local 621,
limited to the Ashland store, constitutes- a unit appropriate- for col-
lective bargaining. With respect to the unit of seven branch stores
proposed by the Employer, it appears from the record that neither
union is interested in representing such a unit. Accordingly, we
-shall dismiss the petition in Case No. 18-RM-264 and direct an elec-
tion at the Ashland store,- as sought in Case No. 18-RC--3343. We
-do not accord Retail Clerks a place on the ballot as it indicated it did
not desire so to appear.
The appropriate unit is : -
All employees, including stock and counter men, of the Employer at
-its Ashland, Wisconsin, store, excluding managers , office clerical em-
ployees, outside salesmen, guards, watchmen, and supervisors as de-
fined in the Act. -
[The Board dismissed the petition filed in Case No. 18-RM-264.]
[Text of Direction of Election omitted from publication.]
Parker Brothers and Co., Inc. and John Young Company, Inc.
and Seafarers International Union - of North America, Atlantic
and Gulf District, Harbor and Inland Waterways Division,
AFL-CIO, Petitioner
Parker Brothers and Co., Inc., and John Young Company, Inc.
and Seafarers International Union of North America, Atlantic
and Gulf District, Harbor and Inland Waterways Division,
AFL-CIO, and General Drivers, Warehousemen and Helpers
Local Union No . 968, AFL-CIO, Joint Petitioners
Parker Brothers and Co., Inc. and John Young Company, Inc.
and General Drivers, Warehousemen and Helpers, Local Union
No. 968, AFL-CIO, Petitioner
Parker Brothers and Co., Inc. and General Drivers, Warehouse-
men and Helpers, Local Union No . 968, AFL-CIO, Petitioner.'
Cases Was. 39-RC-1126, 39 PC-1144, 39-EC-1145, 39-RC-1146,
and 39 RC 1147. October 25,1957
DECISION, ORDER, AND DIRECTION OF ELECTION
Upon separate petitions duly filed, under Section 9 (c) of the Na-
tional- Labor Relations Act, a consolidated hearing was held before
1 The names of the cases appear as amended at the -hearing.
119 NLRB No. 20.
140 DECISIONS Or NATIONAL LABOR RELATIONS BOARD
Wilton Waldrop, 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 National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Members Rodgers, Bean, and
Jenkins].
Upon the entire record in this case the Board finds :
1. The Employers are engaged in commerce within the meaning of
the National Labor Relations Act .3
2. The labor organizations involved claim to represent employees
of the Employers.4
3. A question affecting commerce concerning the representation of
employees within the meaning of Section 9 (c) (1) and Section 2 (6)
and (7) of the Act exists in Case No. 39-RC-1147. For the reasons
stated below, we find that no question affecting commerce concerning
the representation of employees within the meaning of Section 9 (c)
(1) and Section 2 (6) and (7) of the Act exists in Cases Nos. 39-RC-
1126,1144,1145, and 1146.
Parker produces and sells oystershell, sand, gravel, cement, and
ready mix concrete, and also operates a shipyard. On January 25,
1957, the SIU filed a petition for a unit of all employees working on
tugboats operated by Parker and Young (Case No. 39-RC-1126).'
On February 8, 1957, the General Drivers filed a petition for a unit
of all of Parker's nonsupervisory employees, excluding tugboat em-
ployees and shipyard employees (Case No. 39-RC-1142).6 This peti-
tion was withdrawn during the hearing in Case No. 39-RC-1126, and
on the following day petitions were filed by the SIU and the General
Drivers jointly for a unit of all employees of Parker and employees of
Young working on tugboats operated by Parker, excluding shipyard
employees and others (Case No. 39-RC-1144) ; I by the General
2 For the reasons set forth in Cleveland Cliffs Iron Company, 117 NLRB 668 , footnote 1..
we reject the contention of the Employer and the Intervenor that the Regional Director
had no power under the Board's Rules and Regulations to consolidate these cases for
purposes of a hearing.
3In so finding we rely not only on the record in the instant proceeding, but also on.
pages 11 to 15 of the transcript in Parker Brothers & Company, Inc., Case No. 39-RC-1106,
of which we hereby take official notice . As to the relevant operations of Young, see
footnote 12, infra.
4 Shellworkers Independent Union intervened in these proceedings on the basis of a
current contract with Parker.
5 Excluded were all other employees , guards, and supervisors as defined in the Act. Lake
Charles Dredging and Towing Co., Inc., was named in the original petition as an employer,
but its name was stricken by amendment during the hearing.
6 The shipyard employees excluded from the proposed unit were being sought by the
International Brotherhood of Boilermakers, Iron Shipbuilders , Blacksmiths , Forgers and
Helpers of America, AFL-CIO, herein called the Boilermakers , in Case No . 39-RC-1106.
The Board has since held this unit to be inappropriate . Parker Brothers 4 Company, Inc.,
117 NLRB 1462. However, the Board has found appropriate a unit limited to the welders
and burners in the shipyard . Parker Brothers & Company, Inc ., 118 NLRB 1329.
7 Also excluded were office clerical employees , professional employees , guards, and super-
visors as defined in the Act. The unit here described is that sought in the petition ae
PARKER BROTHERS AND CO., INC. 141
Drivers for a unit of all truckdrivers employed by Parker and all
truckdrivers employed by Young (Case No. 39-RC-1145) ; 8 by the
General Drivers for a unit of all nonsupervisory employees of Parker,
excluding shipyard employees, tugboat employees, and others (Case
39-RC-1146) ; 9 and by the General Drivers for a unit of truckdrivers
employed by Parker (Case No. 39-RC-1147).10
Pursuant to a Board certification," for several years Parker and
the Intervenor have been operating under a collective-bargaining
.agreement covering all of Parker's employees. A contract executed
on December 22, 1954, by its terms continued in effect until January
31, 1957. Its automatic renewal was forestalled by due notice, but
on March 13, 1957, before the filing of any of the petitions pending
herein except that filed by the SIU in Case No. 39-RC-1126, the
parties signed a new agreement covering the same unit and containing
no provision for termination before February 1, 1959. The Employer
and the Intervenor contend that this contract bars all the petitions
filed after its execution. Petitioners assert that the contract is not
.a bar because it was executed after the SIU filed its petition in Case
No. 39-RC-1126, seeking to sever a unit of tugboat employees, and
after the Boilermakers filed its petition in Case No. 39-RC-1106,
seeking to sever a unit of shipyard employees.12 However since the
unit sought in Case No. 39-RC-1144, consisting of all employees ex-
.cept shipyard employees, is larger than and substantially different
from those sought in the two petitions which were filed before the
contract was signed and were pending at the close of the hearing, the
pendency of such petitions did not remove the contract as a bar to
the petition in Case No. 39-RC-1144."
.amended at the hearing . Lake Charles Dredging and Towing Co., Inc ., was named in the
original petition as an employer , but its name was stricken by amendment during the
hearing.
8 The unit here described is that sought in the petition as amended at the hearing. The
SIU, which had joined in the original petition , withdrew therefrom at the hearing.
9 Also excluded were office clerical employees , guards, and supervisors as defined in
the Act,
l0 The unit here described is that sought in the petition as amended at the hearing.
.Excluded were supervisors as defined in the Act and all other employees.
" See Parker Brothers & Company, Inc., 110 NLRB 84.
' See footnote 6, supra . Since it was stipulated that Parker and Young constitute a
single employer for purposes of their maritime operations , and since no contention is made
that the validity of the agreement for contract-bar purposes is affected by the fact that
the agreement covers only Parker's employees and is signed by Parker only, we find that
these omissions are immaterial for contract -bar purposes. See also The Murray Company
of Texas, Inc., 107 NLRB 1571, 1572, 1573.
" Polk Brothers Central Appliance and Furniture Company , 105 NLRB 251, 2,52-253;
Worthington Pump and Machinery Corporation , 99 NLRB 189 , 192; American Suppliers,
Incorporated , 98 NLRB 692 , 695; Pasco Packing Co ., 106 NLRB 1223 . The Petitioners
further assert that the contract is not a bar because it was allegedly not ratified in
accordance with the Intervenor's constitution. The contract, whose terns are now being
carried out , is signed by the Intervenor's negotiating committee and does not refer to any
ratification by the membership of the Intervenor . Under such circumstances the Board
will find the contract to be a bar without going behind it and thus injecting itself into a
union 's internal affairs. Phelps Dodge Refining Corporation, 112 NLRB 1209 , 1212. We
142 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Similarly, because when the petitions were filed in Cases Nos. 39-
RC-1145, 1146, and 1147 no petition was pending involving the em-
ployees sought therein and filed before the contract was signed, absent
other factors the contract would bar these petitions." However, the
General Drivers contends that in any event the contract should not
bar them, on the ground that they involve employees which it sought
in the petition in Case No. 39-RC-1142, filed before the contract was
executed, but withdrawn during the hearing. The General Drivers
asserts that it withdrew this petition in reliance on the hearing officer's
action in permitting it to intervene in Case No. 39-RC-1126, which
ruling he later reversed on the ground that the General Drivers was
seeking an entirely different unit from that sought in Case No. 39-
RC-1126. We agree with the General Drivers that under these.
circumstances the contract should not deprive it of any rights which
it may have acquired by filing its petition in Case No. 39-RC-1142
before the contract was executed.15 Since the petition in Case No.
39-RC-1146 seeks the same unit as that sought in the withdrawn
petition, we shall treat the petitions filed in Cases Nos. 39-RC-1145,.
1146, and 1147 as if the petition in Case No. 39-RC-1146 had been
filed before the execution of the contract.
In Case No. 39-RC-1145, the General Drivers seeks a unit of truck-
drivers employed by Parker and Young. As all but one of these
employees were included in the unit sought in the petition in Case
No. 39-RC-1146, which we are treating as though filed before the
contract was executed, the contract does not bar the petition in Case-
No. 39-RC-1145.18 However, since the stipulation that Parker and
Young are to be considered a single employer extends only to their
maritime operations, since the single Young truckdriver drives a ce-
ment truck and is therefore not a maritime worker, and since there is
no evidence in the record that he has any interests in common with
Parker's truckdrivers, we shall dismiss the petition in Case No. 39-RC-
1145 on the ground that it seeks an inappropriate unit.
In Case No. 39-RC-1146, the General Drivers seeks the unit covered
by the contract, but excluding the unit of tugboatmen sought by the
SIU in Case No. 39-RC-1126, which unit we find to be inappropriate
in a subsequent portion of this decision, and also excluding the unit
of shipyard employees sought by the Boilermakers in Case No. 39-
accordingly affirm the hearing officer 's refusal to compel the production of the Intervenor's
membership lists, the ballots cast by its members on the ratification issue, and the minutes
of a previous meeting in which its members allegedly rejected the contract.
14 Pasco Packing Co., 106 NLRB 1223.
15 See Coastal Drydock & Repair Corp ., 107 NLRB 1023 , 1025. We do not wish to sug-
gest, in relying on this case , that the hearing officer's rejection of the General Drivers'
motion to intervene was in any way improper. See Marion Manufacturing Company,
101 NLRB 256 , footnote 4.
16 Westinghouse Electric Corp ., 115 NLRB 1420, 1421 ; The Rauland Corporation,
97 NLRB 1333, 1334.
PARKER BROTHERS AND CO., INC. 143
RC-1106, which unit we found to be inappropriate after the close
of the hearing in the cases at bar." There is no evidence suggesting,.
and the General Drivers does not appear to contend, that the unit
sought in Case No. 39-RC-1146 is appropriate notwithstanding our
determination that separate units of tugboatmen and of shipyard
employees are inappropriate. We shall therefore dismiss the petition
in Case No. 39-RC-1146 on the ground that the unit sought therein
is inappropriate.
In its petition in Case No. 39-RC-1126, filed before the contract
was executed, the SIU seeks to represent a unit of all employees
working on tugboats operated by Parker and Young. The Employer
and the Intervenor contend that the proposed unit is inappropriate.
The tugboats move and supply Parker's shell and gravel dredges,
operating in Galveston Bay and the San Jacinto River, and also tow
the barges loaded with this shell and gravel from the dredges to
various other locations. All of the tugboat crews include a captain,
deckhands, and either engineers or oilers; some also include a relief
captain, 1 or 2 mates, a cook, and a combination dayman and relief
cook. These individuals perform the functions indicated by their
respective job classifications.
The tugboat crews and the dredge crews together form Parker's
marine division, under the overall supervision of the marine superin-
tendent. The amount of personal contact between the tugboat crews
and the dredge crews is comparable to that between the different
tugboat crews. The tugboat crews also have some contact with the
shore-based employees. Seniority is on a departmental basis, the
marine division constituting a separate department under the con-
tract, but there is some interchange, both temporary and permanent,
between departments, and service in any department is credited
toward an employee's seniority in his own department. Parker's
officials exercise general supervision over all operations, including
labor policy, and all employment and payroll records are kept in its
main office. All employees receive the same insurance benefits and
comparable vacation benefits, but only the shore-based employees
have paid holidays."
The SIU contends that the unit which it seeks is "either a craft unit
or a `functionally distinct' department of employees `identified with
traditional trades,' " and therefore meets the severance standards
formulated by the Board in American Potash cf Chemical Corpora-
tion, 107 NLRB 1418. The record fails to support this contention.
The tugboatmen are plainly not a craft within the meaning of
American Potash, since many of them require only 5 or 6 months'
17 See footnote 6, supra.
is Some of the statements in the paragraph above may not apply to Young's employees.
144 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
training. Nor do they constitute a traditional department within the
meaning of that case. As we pointed out in American Potash, 107
NLRB at 1424, "the Board does not propose to allow petitioners
seeking severance to use this concept as a basis for establishing extent-
of-organization units or for fragmentizing plant-wide units into
departments wherever craft severance cannot be established." We
shall therefore dismiss the SIU's petition in Case No. 39-RC-1126 on
the ground that it seeks an inappropriate unit.19
In Case No. 39-RC-1147, the General Drivers seeks to sever a unit
of Parker's truckdrivers from the existing companywide unit. Since
all of these employees were included in the unit sought in the petition
in Case No. 39-RC-1146, for the reasons set out in connection with
Case No. 39-RC-1145, this petition is not barred by the contract.
Parker employs about 50 mixer- and dump-truck drivers, about 5
drivers who haul gravel from Parker's gravel pit to its plant about
three-quarters of a mile away and who are paid 27 cents an hour less
than the mixer- and dump-truck drivers, and 1 driver who drives a
truck which brings supplies and crew members to the tugboats and
who has limited contact with the mixer- and dump-truck drivers.
The mixer- and dump-truck drivers and the gravel-truck drivers do
only trucking work and the former have little contact with other
employees. The General Drivers prefers a unit limited to the 50
mixer- and dump-truck drivers, but is willing to represent a unit also
including others.
The General Drivers is a union which has historically represented
truckdrivers, and Parker's truckdrivers constitute a functionally dis-
tinct group, such as the Board has traditionally accorded the right
of self-determination despite a history of bargaining on a broader
basis and despite their lack of true craft skill. Accordingly, we find
that Parker's mixer- and dump-truck drivers, gravel-truck drivers,
and crew drivers may, if they so desire, constitute a separate appro-
priate unit.20
We shall direct an election among such truckdrivers, excluding all
other employees and supervisors as defined in the Act. If a majority
vote for the General Drivers they will be taken to have indicated
their desire to constitute a separate appropriate unit, and the Regional
Director conducting the election directed herein is instructed to issue
a certification of representatives to the General Drivers for the unit
described in paragraph numbered 4, which the Board, under such
1° The Petitioners assert that, together with the Boilermakers , they are willing jointly to
represent a companywide unit . The Boilermakers is not a party to this proceeding. Even
if this request is taken as a valid amendment to a timely petition , it is nevertheless barred
by the contract, since it seeks a unit larger than and substantially different from that
sought in any timely petition. See cases cited in footnote 13, supra.
20 Graver Construction Company , 118 NLRB 1050 ; Tennessee Egg Company , 110 NLRB
189, 190-191 ; Swift & Company, 117 NLRB 61.
HOPE WEBBING COMPANY, INC. 145
circumstances, finds to be appropriate for the purposes of collective
bargaining. In the event a majority do not vote for the General
Drivers, the Board finds the existing unit to be appropriate and the
Regional Director will issue a certification of results of election to
such effect.
[The Board dismissed the petitions in Cases Nos. 39-RC-1126,
39-RC-1144, 39-RC-1145, and 39-RC-1146.]
[Text of Direction of Election omitted from publication.]
Hope Webbing Company, Inc. and United Textile Workers of
America, AFL-CIO , Petitioner. Case No. 1-RC-4981. October
95, 1957
DECISION AND DIRECTION OF ELECTIONS
Upon a petition duly filed under Section 9 (c) of the National
Labor Relations Act, a hearing was held before Thomas E. Mc-
Donald, 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 National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Members Murdock, Rodgers, and
Bean].
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. The Employer urges as a bar a 1-year contract executed June
20, 1956, between its predecessor and Narrow Fabric Workers' Union,
which contract provides that in the absence of notice to negotiate at
least 30 but not more than 60 days before expiration, it is to be "auto-
matically renewed and continued without change." No such notice
was given. The petition was filed June 12, 1957. By contrast the
1950 contract provided that it was to be "automatically renewed and
continued without change other than that of the expiration date for
an extended period of one year from December 31, 1951, to December
31, 1952." We find that the 1956 contract was automatically renewed
for an indefinite period. As the existing contract has become one of
indefinite duration following a fixed term, it does not bar a representa-
tion proceeding.. See New Jersey Porcelain Company, 110 NLRB
790, 791.
119 NLRB No. 24.
476321-58-vol. 119-11