Pet Dairy Product Co.

National Labor Relations Board - Board Decisions

Oct 8, 1957

118 N.L.R.B. 1562 (N.L.R.B. 1957)

1562 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Board's established voting eligibility rules.3 -Accordingly, like
the Regional Director, we sustain the challenge to Lawrence 's ballot.
As the Petitioner has received a majority of the valid ballots cast
in the election , we shall certify the Petitioner as the collective-
bargaining representative of the employees in the appropriate unit.
[The Board certified Stationary Engineers Local #86, Interna-
tional Union of Operating Engineers , AFL-CIO, as the designated
collective-bargaining representative of the employees in the appro-
priate unit.]
e Cf. Food Machinery and Chemical Corporation , 116 NLRB 552, 553, wherein the
Board interpreted a unit finding excluding temporary employees as making ineligible an
employee who was working as a temporary during the payroll eligibility period, although
he had already been promised a permanent job which was to take effect and did take effect
before the election date.
Pet Dairy Products Company and D. H. Edwards , Petitioner
and Milk and Ice Cream Drivers and Dairy Employees, Local
Union No. 23, International Brotherhood of Teamsters , Chauf-
feurs, Warehousemen & Helpers of America , AFL-CIO. Case
No. 11-RD-68. October 8, 1957
DECISION AND ORDER
Upon a petition duly filed under Section 9 (c) of the National Labor
Relations Act, a hearing was held before John M. Dyer, 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 Murdock and Rodgers].
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 Petitioner, an employee of the Employer, asserts that the
Union is no longer the bargaining representative, as defined in Section
9 (a) of the Act, of 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:
The petition sought a decertification election in a unit of employees
at the Employer's Greenville, South Carolina, plant? The Union
i The Union 's motion to dismiss the petition , which was referred by the hearing officer
to the Board , is granted for the reasons stated infra.
2 The petition described a unit of "office, clerical , wholesale milk delivery , retail milk
delivery , ice cream delivery , shipping, ice cream production , milk processing and storage,
118 NLRB No. 213.
PET DAIRY PRODUCTS COMPANY 1563
contended at the hearing that this unit was inappropriate as it con-
stituted a segment of the certified, contractual,' divisionwide bargain-
ing unit, and moved that the petition be dismissed on this ground.
The Petitioner thereupon asserted that it sought, alternatively, an.
election in the historical bargaining unit. The Union maintained that
this request of the Petitioner should not be entertained as the Peti-
tioner's showing of interest at the Greenville plant could not warrant
an election in the more than 30 plants covered by the historical unit.
The Employer took no position with regard to the appropriate unit.
The parties were in agreement that the Union, since 1947, has rep-
resented the employees at all the plants in the Employer's southeast
division; that this division encompassed all the plants of the Em-
ployer except one in North Prairie, Wisconsin, and one in Jackson,
Mississippi; 4 and that, in 1953, the Union was certified by the Board
(10-RC-2304) as the collective-bargaining representative of the
employees in the southeast division .5
The Petitioner maintained that the Greenville plant should be found
to constitute a separate appropriate unit on the grounds that certain
operations of this plant are conducted on a local, autonomous basis;
that the historical unit does not cover all the plants of the Employer;
and that the 1953 certification was based upon a consent election, and
not upon a determination by the Board as to the appropriate unit.
We find no merit in these contentions in view of the history of
collective bargaining on a divisionwide basis since 1947, the certifica-
tion on that basis in 1953,6 and the continuing contractual relations in
such a unit since the certification. Accordingly, we find that only the
divisionwide unit is appropriate? As the Board will not direct a
decertification election in a segment of a recognized or certified unit,'
we find that the Petitioner's proposed unit of employees at the Green-
refrigeration transport drivers, garage and ice cream mix processing and storage em-
ployees. . . .' The Petitioner stated at the hearing that this unit was intended to cover
the same categories as were included in the Union's contractual unit. When the Union
pointed out that the proposed unit varied in certain particulars from the contract unit,
the Petitioner requested that its petition be amended to conform with the unit description
in the contract.
3 The Union ' s current contract , effective until September 30, 1957, was not raised as
a bar.
'It appears that the Employer has collective-bargaining agreements , at the plants in
Wisconsin and Mississippi, with affiliates of the Union.
5 The Union's 1954 contract with the Employer provided that, "Pursuant to the terms
of the certification granted by the National Labor Relations Board, this agreement shall
cover all employees employed at the Company 's Plants and Home Office , in South-East
Division. . . The current agreement provides that, "Pursuant to the terms of the. 11
certification granted by the National Labor Relations Board, this agreement shall cover
all employees employed at the Company's plants, except North Prairie, Wisconsin. . . .
6 Section 102.54 of National Labor Relations Board Rules and Regulations provides that,
following a consent election, "the regional director shall issue to the parties a certifica-
tion of the results of the election, including certification of representatives where appro-
priate , with the same force and effect as if issued by the Board. . .
'r Owens-Illinois Glass Company , 108 NLRB 947, 950.
8 Campbell Soup Company, 111 NLRB 234; cf. Gill Glass & Fixture Company, 110
NLRB 1540, 1542.
1564 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ville plant is inappropriate. Nor shall we direct an election in the
historical unit, on the basis of the Petitioner's alternate contention, as
its showing of interest among the approximately 171 eligible em-
ployees at the Greenville plant is inadequate to support a request for
an election among the approximately 1,100 employees in the division-
wide unit.' We shall, therefore, dismiss the petition filed herein.
[The Board dismissed the petition.]
9 In its brief filed after the hearing, the Petitioner requested "a reasonable extension
to obtain additional signatures should the Board determine that the only appropriate
unit is the thirty-four plant unit." As it would appear from the foregoing that the
Petitioner currently has an inadequate showing among the Employer's employees in the
historical unit, we find no warrant for delaying this representation proceeding in order
to permit the Petitioner to obtain an increased showing of interest. This request is
therefore denied.
Dairy Cooperative Association and Howard Borge, Petitioner
and Local 305, Dairy, Ice & Ice Cream Employees, Inter-
national Brotherhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America, AFL-CIO. Case No. 36-RD-97.
October 8, 1957
SUPPLEMENTAL DECISION, ORDER, AND DIRECTION
OF ELECTION
On February 1, 1957, the Board issued a Decision and Order 1 dis-
missing the petition in the above-entitled proceeding. The basis of the
dismissal was : (1) That there was nothing in the record to show that
a notice to amend or modify, as required to forestall renewal, was
given prior to the automatic renewal date of the Union's contract with
the Employer; and (2) that as there was nothing to indicate that the
so-called amendment to that contract was intended to be a contract
replacing the original agreement, the petition was barred by the con-
tract as automatically renewed. Thereafter, on July 29, 1957, the
Board, having considered a request by the Petitioner dated June 3,
1957, that the case be reopened and reviewed in the light of additional
evidence submitted to the Board by the Petitioner, and having found
good cause shown therein, directed that a hearing be held on the issues
raised by that additional information.2
1 Not reported in printed volumes of Board Decisions and Orders.
2 We reject the Union's contention that the Employer illegally assisted the Petitioner
in the preparation of the request to reopen this case. The only evidence in this regard
is to the effect that when the Petitioner, of his own volition, approached a company official
to ask how to go about reopening the hearing, the official stated that he would look for
some evidence and supplied the Petitioner with a copy of the Union's letter of Septem-
ber 5, 1956, terminating the contract. The letter was the additional evidence supplied
to the Board. However, this is not the degree of assistance which the Board has found
exceeds the bounds of strict neutrality imposed by the statute. See, e. g., Consolidated
Blenders, Inc., 118 NLRB 545, and Bond Stores, Inc., 116 NLRB 1929. Further, the
118 NLRB No. 212.