Penn Dairies, Inc.

National Labor Relations Board - Board Decisions

Feb 24, 1958

119 N.L.R.B. 1683 (N.L.R.B. 1958)

PENN DAIRIES, INC. 1683
It is essential that new applicants for membership contact the
Union Shop Steward in their department, or the Business Agent
of the Union, and be prepared to pay the Initiation Fee, which
is $20.00 and $3.5,0 for a month's dues. A convenient Check-Off
Card is provided for both Initiation Fee and monthly dues for
your convenience. (Italics supplied.)
Gordon defined his duty as a job steward as follows: "I am supposed
to sign up the new men as they come to work, sign them up into the
union." 6 This testimony was corroborated by Crimmms, the busi-
ness agent . Furthermore, Respondent's constitution and bylaws
contain nothing to negate this authority on the part of the job
steward. Thus the Trial Examiner's finding (Intermediate Report
footnote 11, 117 NLRB 413) that Gordon as job steward' for the
Union was its agent, and that his actions and conduct as steward are
attributable to it, is amply supported by the record. In the circum-
stances , we deem Gordon's acceptance of Hatfield's tender to have
constituted acceptance by Respondent. Nor do we see that Gordon's
testimony on redirect examination, that he "probably wouldn't have"
signed Hatfield up had he known of the discharge letter, alters the
effect of his having done so. Gordon was authorized to act for the
Respondent in that capacity and he did so in the instance with which
we are concerned. On this record we find that Respondent, by the
action of its agent, Gordon, in accepting the checkoff slip for initiation
fees and dues tendered by Hatfield, waived its right to insist that
Hatfield be discharged for failure to make a prompt tender.
For the reasons heremabove stated, we affirm our Decision and
Order of February 20, 1957, as supplemented herein.
MEnmEo . FANNING took no part in the consideration of the above
Supplemental Decision.
a Gordon also testified that he had planned to sign up Hatfield and the two others who
had not signed up in the fall, on May S, but was prevented from doing so by his injury
on May 2 and his stay in the hospital until May 12
7 The Trial Examiner referred to Gordon as the "woods shop steward ", actually Gordon
testified that he was "a job steward" for the Union In the context it appears that
"woods shop" and "job" are synonymous
Penn Dairies, Inc. and Milk Drivers and Dairy Workers Union,.
National Brotherhood of Packinghouse Workers , Petitioner..
Case No 41-RC--W3 February 24, 1958
DECISION AND DIRECTION OF ELECTION
Upon a petition duly filed under Section 9 (c) of the National
Labor Relations Act, a hearing was held before Bernard Samoff,
119 NLRB No 217
1684 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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 Act, the Board
has delegated its powers in connection with this case to a three-
member panel [Chairman Leedom and Members Bean and Fanning].
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 Employer and the Intervenor allege that the Petitioner
herein is "Milk Drivers and Dairy Workers Union" and that the
latter is not a labor organization. The president of the National
Brotherhood of Packinghouse Workers testified, without contradic-
tion, that "Milk Drivers and Dairy Workers Union" is merely a
designation for an administrative branch of the National Brother-
hood of Packinghouse Workers handling the organization of persons
employed in the dairy industry, and that the National Brotherhood,
itself, is the actual Petitioner herein. We so find.' As the Petitioner
exists for the purpose of dealing with employers concerning wages,
hours, and conditions of employment, we find that it, as well as the
Intervenor, is a labor organization within the meaning of the Act.
3. The Employer and the Intervenor contend that their current
contract is a bar to the petition filed on September,23, 1957. The
Petitioner contends that the contract is not a bar because it was
not executed until September 27, 1957, after the filing of the petition.
The Employer and the Intervenor assert, however, that the terms
of the contract had been agreed upon and placed in effect before
the filing of the petition and that the actual execution of the contract
was merely a "ministerial act."
This case involves the Employer's Gettysburg, Pennsylvania, plant.
On September 18, 1957, having secured authorization cards from a
majority of the Employer's employees at that plant, the Intervenor's
secretary-treasurer, Silar, telephoned an officer of the Employer,
Althouse, and informed him of that fact and requested recognition
as bargaining representative. Althouse stated that the Employer
would recognize the Intervenor if the authorization cards were valid.
The two agreed that the cards would be sent to the Employer's
attorney to be checked. They also agreed to enter into a contract
'Local 430, International Brotherhood of Teamsters, Chauffeurs, Warehousemen &
Helpers of America, hereinafter called the Intervenor, was permitted to Intervene at the
hearing upon the basis of a contractual interest. The hearing officer referred to the Board
the motions of the Employer and the Intervenor to dismiss the petition on the grounds
that (a) the amendments to the petition after it was filed constituted it, in substance, a
new petition and that it is therefore barred by the contract involved herein, which was
admittedly executed before the date of the amendments, and (b) the Petitioner is not a
labor organization within the meaning of the Act. These motions are denied for reasons
set forth in the text below.
a However , in view of this finding , we shall omit from the designation of the Petitioner
on the ballot the phrase "Milk Drivers and Dairy Workers Union."
PENN DAIRIES , INC. 1685
based upon another contract that a sister local of the Intervenor
had with the Employer covering its Lancaster, Pennsylvania, plant.
The terms of the contract at Gettysburg were to be the same as the
Lancaster contract, except as indicated hereinafter. Since the Lan-
caster plant processes milk and the branch involved herein only
delivers milk, the classifications of the employees at the two plants
were different. The employees at Lancaster were to receive a wage
increase on September 24, 1957, pursuant to the terms of their con-
tract. Accordingly, Althouse and Silar agreed that the Gettysburg
contract would provide for a general increase of 10 cents an hour for
all the hourly paid employees at Gettysburg, but, unlike the Lancaster
contract, would not list any classifications. Also, at Lancaster the
drivers receive a base pay plus commissions, while at Gettysburg they
receive commissions only. Because of this difference in mode of
compensation, it was determined to give the Gettysburg drivers a
flat $2 increase in their base pay, in lieu of the higher commission
rate given the Lancaster drivers. With these increases, the parties
felt that the wage scale at Gettysburg would correspond to that at
Lancaster, taking into consideration the forthcoming wage increases
at the latter plant. The parties also agreed that, if the Intervenor's
cards were authenticated, the wage increases at Gettysburg were to
be effective as of the next pay period, beginning September 19,
which was the next day.
Althouse then called the Employer's attorney, Abbott, and informed
him of his conversation with Silar and told him that, if the authori-
zation cards were valid, he should draw up a contract, pursuant to
the agreed-upon terms, for execution by the parties. Since Silar had
to leave town shortly, he authorized the Intervenor's attorney,
Handler, to act for the Intervenor and execute the contract in Silar's
absence. Handler stated that he was willing to do so, but that since
he "had not participated in any of the negotiations or the discussions
[he] would have to have some very definite standard or guide by which
[he] could determine that [he] was signing the proper contract."
As Handler was aware that the Lancaster contract provided for wage
increases in the immediate future, he asked Silar if the proposed
contract for Gettysburg was to be based on the new wage scales and
received an affirmative reply.
On September 19, 1957, the Employer's attorney received the
authorization cards which had been mailed by Silar, checked the
signatures, concluded they were valid, and sent Silar a letter in-
forming him that the cards were satisfactory and that the agreement
was being prepared and would be forwarded to him within the next
few days. In the meantime, on September 18, Althouse had notified
the Employer's sales manager of the parties' agreement and told him
1686 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to put the new wage scales into effect for the Gettysburg employees
with the payroll period beginning on the 19th, which was done.
On Friday, September 20, the Employer's attorney, having drafted
the proposed contract, mailed it to the Intervenor's office. The office
was closed Saturday and Sunday. On Monday, Silar left for a union
convention without seeing the contract, and did not return until
October 14. Meanwhile, on September 21, 1957, the Employer re-
ceived a letter from the Petitioner requesting recognition as bar-
gaining representative of the employees involved herein and on
September 23 the latter filed the instant petition. On September 27,
pursuant to instructions left by Silar, the proposed contract and a
copy of the Lancaster agreement were forwarded from the union
office to Handler. The latter compared the two agreements, had some
questions concerning them, and telephoned the Employer's attorney,
Abbott. Handler testified at the hearing, "I wanted to verify with
[Abbott] that . . . the wage rate provisions in [the contract] covered
all the job classifications. I wanted a little more information than
I already had." Abbott testified that Handler informed him that
"Silar had told him (Handler) to compare the contract with the Lan-
caster agreement. . . . He wanted to know why these job classifi-
cations were not in there, and I explained to him that Gettysburg was
a branch and Lancaster was a plant and therefore we did not have
those job classifications." Upon receiving this information, Handler
signed the contract and sent it to Althouse, who then executed it,
apparently the same day.
In view of the foregoing, and upon the record as a whole, we find,
in agreement with the Petitioner, that the contract is not a bar. The
well=established Board rule is that a contract will not bar a petition
unless all the terms and conditions of employment agreed to by the
parties have been embodied in written contractual form and the agree-
ment executed by the parties.3 As an exception to this general rule,
the Board has, on occasion, found a contract a bar to a petition when,
before its filing, the parties had come to a complete accord, had put
the terms of the contract into effect, and only the "ministerial act" of
signing the contract remained to be done.' The Employer and the
Intervenor urge the Board to apply this exception to this proceeding.
However, we are not satisfied that this exception is applicable here.
As already stated, the Union's agent, Silar, on September 18, tele-
phoned the Employer's secretary, Althouse, and attempted to reach
a verbal accord with him. Althouse agreed that if the Intervenor's
cards were found to be valid, the Employer would draw up a contract
which would be substantially the same as the Lancaster contract, in-
cluding wages. However, on the same day and before the cards were
$ Dover Industrial Chrome, Inc., 114 NLRB 1309.
4 E. g., American Smelting and Refining Company, etc., 118 NLRB 95.
PENN DAIRIES, INC. 1687
examined Althouse gave unconditional instructions to a subordinate
to put the new wage rates into effect as of the next day . Thus, here,
unlike the situation in the cases cited by the Employer and the Inter-
venor, establishment of a contractual relationship was contingent
upon verification of the Intervenor 's cards and its majority status.
Yet the wage increase , upon which Intervenor relies, in part, to
,establish its contract as a bar, was instituted even before this con-
tingency was satisfied and before such bargaining status was achieved.
Accordingly , the effectuation of the wage increase is not, in our
opinion, entitled to any weight in determining whether the contract
is a bar.
Significantly, too, when Silar was advised that the cards were valid
and that a contract was being drafted, he authorized Handler to ex-
amine the contract and sign it if he thought that it conformed to the
Lancaster agreement. Thereupon, Abbott, the Employer's attorney,
forwarded a draft of a contract to Silar. It was at this point that the
Petitioner made its demand for recognition and filed the instant peti-
tion. And it was at this point that something more remained to be
accomplished than the mere "ministerial act" of signing the contract.
For, unlike the situation in the American Smelting case and other cases
cited by the Employer and Intervenor, the contracting parties here
had not, prior to the filing of the petition, approved a written draft
of their agreement . This did not occur here until September 27,
when Handler, pursuant to his instructions, determined that the pro-
posed contract conformed in substance to the Lancaster contract. Up
to that point the only agreement between the parties was an oral under-
standing that the Lancaster contract, with certain modifications, would
be extended to Gettysburg . It is clear that Handler , if he thought
that the proposed contract did not conform to the Lancaster agreement,
was authorized not to sign it. We find, therefore, that, until both
parties had actually executed the contract on September 27, no stabili-
zation of their bargaining relationship had occurred . In the mean-
time, however, the petition had been filed on September 23. Accord-
ingly, we find that the petition was timely filed with respect to the
Intervenor 's contract.
The Employer and Intervenor contend further that, even if the
original petition was timely filed, their contract is a bar because certain
amendments of that petition after the execution of the contract were
tantamount to a withdrawal of the original petition and the filing of a
new petition.
The original petition herein was filed on September 23, 1957, desig-
nating "Milk Drivers and Dairy Workers Union, National Brother-
hood of Packinghouse Workers" as the Petitioner. At the first ses-
sion of the hearing on October 17, the Petitioner's attorney was
permitted to amend the name of the Petitioner by adding "Local No.
1688 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
59" to its name. The latter is a local union of the Petitioner located in
Urbana, Illinois . The hearing was recessed until November 15, 1957.
On this date, new counsel, appearing for the Petitioner, amended the
petition by dropping the designation "Local. No. 59," explaining that
prior counsel had been mistaken as to the correct name of the
Petitioner.
We find no merit in the contention that these changes were so
substantial as to require that the Board treat the petition as having
been refiled, in effect, after the execution of the contract. As the net
effect of the amendments was to restore the petition to its original form
and, as there is no showing that the other parties were in any way
prejudiced by the temporary designation of Local No. 59 as the Peti-
tioner, we find that the altered petition is not in substance a new
petition.5 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.
4. The following employees of the Employer constitute a unit
appropriate for the purposes of collective bargaining within the mean-
ing of Section 9 (b) of the Act : 6
All employees at the Employer's milk branch department at Gettys-
burg, Pennsylvania, excluding branch managers, assistant branch
managers, superintendents, assistant superintendents, district man-
agers, office clerical employees, laboratory employees , solicitors, store
employees, and supervisors as defined in the Act.
[Text of Direction of Election omitted from publication.]
Cf. Westinghouse Electric Corporation , 107 NLRB 16.
e The unit conforms to the stipulation of the parties.
Italia Societa per Azioni di Navigazione and Steamship Office
Workers Union , Local 1809, International Longshoremen's As-
sociation (Independent ), Petitioner. Case No. 2-RC-8849.
February 24., 1958
SUPPLEMENTAL DECISION AND CERTIFICATION
OF REPRESENTATIVES
On September 16, 1957, pursuant to a Decision and Direction of
Election issued herein on August 21, 1957,1 the Regional Director for
the Second Region conducted an election among the employees in the
appropriate unit. At the close of the election, the Regional Director
served a tally of ballots upon the parties which showed that there were
approximately 111 eligible voters, of whom 109 voted-61 for, and
1118 NLRB 1113.
119 NLRB No. 216.