Pevely Dairy Co.

National Labor Relations Board - Board Decisions

Dec 31, 1948

80 N.L.R.B. 1683 (N.L.R.B. 1948)

In the Matter of PEVELY DAIRY COMPANY, EMPLOYER and INTERNA-
TIONAL BROTHERHOOD OF FIREMEN , OILERS, AND GENERAL MAINTE-
NANCE MEN, LOCAL No. 6, PETITIONER
Case No. 14-RC-428.-Decided December 31,1948
DECISION
AND
DIRECTION OF ELECTION
Upon a petition 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 consisting of the undersigned Board
Members.*
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 labor organizations named below claim to represent em-
ployees of the Employer.
3. The Intervenor 1 asserts as a bar to this proceeding its contract
executed with the Employer on August 1, 1946. The contract was
for an initial term of 2 years and automatically renewable from year
to year thereafter absent notice to terminate or amend given by either
party at least 30 days before August 1, 1948, or any subsequent anni-
versary date. By letter dated May 28, 1948, the Employer notified
the Intervenor of its intention to terminate the contract. The ad-
dress to which this letter was sent was incorrect and, as a result, was
not received by the Intervenor until the afternoon of June 2, 1948.
On that same date, the Intervenor in a letter addressed to the Employer
advised the Employer of its desire to reopen the agreement. On Au-
gust 6, 1948, the Petitioner sent a letter to Employer demanding rec-
ognition. On that same date the Petitioner filed the petition herein.
*Houston , Reynolds, and Murdock.
i International Union of Operating Engineers , Locals Nos. 2, 2-A, 2-B, AFL.
80 N. L. R. B., No. 248.
1683
817819-49-vol. 80-107
1684 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
No new agreement has been entered into between the Intervenor and
the Employer since August 1. However, on July 1, 1948, a union-
authorization petition (Case No. 14-UA-2082) was filed with the
Board, which case is still pending.
We find that the conduct of the contracting parties hereinabove
discussed clearly makes inoperative the automatic renewal clause of the
contract 2 and for such reason, the contract, now expired, is no bar
to the election hereinafter directed.3
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 ap-
propriate for purposes of collective bargaining within the meaning
of Section 9 (b) of the Act:
All power plant and maintenance employees, including licensed sta-
tionary engineers,4 but excluding professional employees, guards, and
supervisors as defined in the Act.
DIRECTION OF ELECTION
As part of the investigation to ascertain representatives for the pur-
poses 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 Fourteenth Region, 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 em-
ployed 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
2 For reasons stated in prior cases , we find no merit to the Intervenor's contention that
the afore -mentioned notices given by the Employer and the Intervenor did not effectively
stay the operation of the automatic renewal clause of their contract because the notices
were not given more than 60 days before the terminal date of the contract as required by
Section 8 (d) (1) of the Act as amended . See Matter of International Harvester Company,
77 N. L. R. B. 325. Nor is there any merit to the Intervenor 's further contention that
"in view of subsequent negotiations and understandings" between the Employer and the
Intervenor the contract must be held to have been continued in effect by the parties. There
is no evidence in the record to show any rescission or abandonment of the written notices.
8 See Matter of H. 0. Canfield Company, 76 N. L. R. B. 606.
4 The licensed engineers have no authority to hire, discharge, discipline , or effect a change
in the status of employees , and any recommendation they may make in this respect is
subject to an independent investigation and final determination by the superintendent who
is in charge of the power plant and maintenance department. We find, therefore, that the
limited authority vested in them to direct the work of the firemen and maintenance men
who assist them does not make the licensed engineers supervisors within the meaning of
the Act as amended. Matter of H. J. Heinz Company, Inc, 76 N. L. It. B. 1103; Matter of
Gemco Engineering and Manufacturing Company, Inc ., 76 N. L. It. B. 437.
PEVELY DAIRY COMPANY 1685
temporarily laid off, but excluding those employees who have since
quit or been discharged for cause and have not been rehired or rein-
stated prior to the date of the election, and also excluding employees
on strike who are not entitled to reinstatement, to determine whether
they desire to be represented, for purposes of collective bargaining, by
International Union of Operating Engineers, Locals 2, 2A, 2B, AFL,
or by International Brotherhood of Firemen, Oilers and General
Maintenance Men, Local No. 6, or by neither.