Puritan Ice Co.

National Labor Relations Board - Board Decisions

Aug 21, 1947

74 N.L.R.B. 1311 (N.L.R.B. 1947)

In the Matter of PURITAN ICE COMPANY, EMPLOYER and INTERNA-
TIONAL UNION OF OPERATING ENGINEERS, LOCAL No. 235, A. F. L.,
PETITIONER
Cases Nos. 21-R-3734 and 21-R-3735.-Decided August 01, 1947
Messrs. Leo T. McMahon and A. D. Haines, of Santa Barbara, Calif.,
for the Employer.
Messrs. Walter Mahaffey and John A. Kowatch, of Wilmington,
Calif., for the Petitioner.
Mr. Henry E. Spiller, of Los Angeles, Calif., and Mr. Clarence Far-
ing, of Santa Maria, Calif., for the Intervenor.
Mr. Edmund J. Flynn, of counsel to the Board.
DECISION
AND
ORDER
Upon petitions duly filed, hearing in this proceeding was held at
Santa Barbara, California, on February 20, 1947, before Maurice J.
Nicoson, hearing officer. The hearing officer's rulings made at the
hearing are free from prejudicial error and are hereby affirmed. At the
hearing the Employer and the Intervenor moved to dismiss the peti-
tions. For the reasons stated in Section III, below, the motion is
hereby granted.
Upon the entire record in the case, the National Labor Relations
Board makes the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE EMPLOYER
Puritan Ice Company, a California corporation having its principal
offices at Santa Barbara, California, is engaged in the manufacture of
ice in plants located at Santa Barbara, Atascadero, Guadaloupe, and
Lompoc, all in the State of California. This case is solely concerned
with the Guadaloupe and Lompoc plants. During the year 1946 the
Employer manufactured at Guadaloupe and Lompoc in excess of 95,000
tons of ice valued at approximately $350,000. This ice was sold di-
74 N. L. R. B, No. 218.
1311
755420-48-vol. 74-84
1312 DECISIONS OF 'NATIONAL LABOR RELATIONS BOARD
rectly to fruit and vegetable packers and shippers for use in icing
produce and refrigerating railroad cars; 95 percent of these cars and
their products as shipped to points outside the State of California.
We find, contrary to its contention, that the Employer is engaged
in commerce within the meaning of the Act.'
H. THE ORGANIZATIONS INVOLVED
The Petitioner is a labor organization affiliated with the American
Federation of Labor, claiming to represent employees of the Employer.
Truck Drivers and Helpers Local Union No. 381 of the Interna-
tional Brotherhood of Teamsters, Chauffeurs, Warehousemen & Help-
ers of America, herein called the Intervenor, is a labor organization
affiliated with the American Federation of Labor, claiming to repre-
sent employees of the Employer.
III. THE ALLEGED QUESTIONS CONCERNING REPRESENTATION
The collective bargaining history at Guadaloupe and Lompoc goes
back to November 1944, when the Intervenor filed a petition claiming
to represent all production and maintenance employees at both plants.
,Shortly thereafter, for purposes of a consent cross-check conducted
under Board supervision, each plant was divided into two units, one
consisting of engineers and ice pullers, and the other consisting of ice
handlers, making four units altogether. The Intervenor was desig-
nated by all eligible employees of each of the four units as their bar-
gaining representative. On December 21, 1944, the Employer and
Intervenor entered into a collective bargaining contract for a term to
expire March 1; 1950. Under this contract, all the employees of the
four units were grouped together as a-single bargaining unit of pro-
duction and maintenance employees. On May 31, 1946, the Employer
and Intervenor executed a second collective bargaining contract cov-
ering the same employees as the 1944 contract; this second contract was
by its terms made retroactive to February 1, 1946, and like the 1944
contract was to expire on March 1, 1950. On December 30, 1946, the
petitions herein were filed. The Petitioner seeks separate units of
engineers, ice pullers, and maintenance employees at Guadaloupe and
Lompoc, respectively. The Employer and the Intervenor contend that
the units sought by the Petitioner are inappropriate and that the pro-
duction and maintenance unit established under the 1944 contract and
continued under the 1946 contract is the only appropriate unit.
1 N. L. R. B. v. Holtville Ice & Cold Storage Co, et al , 148 F. ( 26) 168 , 169 (C C. A 9) ;
Matter of Crescent City Ice Manufacturing Co , Inc., 70 N . L. R. B. 1090; and Matter of
Goetz Ice Co ., 61 N. L. R . B. 761, 762.
PURITAN ICE COMPANY 1313
In addition the Employer and Intervenor contend that their 1944
contract is a bar to a present determination of representatives, or in
the alternative that the 1946 contract operates as a bar. On the
other hand the Petitioner takes the position that neither the 1944 nor
the 1946 contract is a bar, basing its position on two grounds : (1) that
both contracts are of unreasonable duration and have already been in
effect for more than one (1) year; and (2) that the 1944 or 1946 con-
tract, whichever is currently operative, is at present reopened for ne-
gotiations of changes involving wages, hours, and conditions of em-
ployment.
The 1946 contract is complete with the substantive terms normally
found in a collective bargaining agreement; it states that it "shall con-
tinue in full force and effect from the date of its execution" and that the
"parties hereto have caused this agreement to be executed as of the 31st
day of May 1946," no mention being made of the 1944 contract. In view
of these and all the other circumstances, we find that the 1944 contract
was terminated by the contracting parties and that it was superseded
by the 1946 contract. Inasmuch as the 1944 contract is no longer oper-
ative, we find that the 1944 contract is not a bar to this proceeding.
The Petitioner's first objection to the 1946 contract is that the con-
tract was executed for a period it excess of 4 years and is therefore of
unreasonable duration. The Employer and Intervenor assert that
long-term contracts are customary in the fruit and vegetable packing
and allied industries in California. However, no other long-term
contracts were introduced in evidence. There was testimony to the
effect that the Intervenor is presently negotiating numerous 5-year
contracts with California fruit and vegetable packing houses; but the
Board has held that recent innovations are not custom? Accordingly,
we find that the 1946 contract is of unreasonable duration within the
meaning of Board precedents in representation proceedings.
Heretofore, when faced with a contract deemed to be of unreason-
able duration, the Board has held that such contract should constitute
a bar to a determination of representatives during its first operative
year,3 although it could not ordinarly preclude an election there-
after.4 This policy accorded to long-term contracts and contracts of
indefinite duration the maximum effect as a bar compatible with the
right of employees to change their bargaining representatives; the
policy was a result of the Board's decisions which held that contracts
for terms exceeding 1 year were of unreasonable duration. However,
2 Matter of American Pharmaceutical Company , 67 N. L. R. B. 1152, 1156.
3 Matter of George L. Madden, 42 N. L. R B. 885, 886.
4 Matter of The A S Abell Company, 62 N. L. R. B. 1414, 1416.
1314 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in the recent Reed 'Roller Bit case,5 the Board, in the interest of pro-
moting greater stability in industrial relations, held that contracts for
terms of 2 years were not of unreasonable duration and that they
could bar an election until shortly before their terminal date, even
though such contracts were not the custom in the particular industry.
The same reasons of industrial stability contemplated by the Reed
Roller Bit case impel the conclusion that contracts of unreasonable
duration shall during their initial 2-year period be a bar to a repre-
sentation proceeding. We find, therefore, that the 1946 contract may
constitute a bar to the present petition during its initial 2-year period.
A substantial portion of the initial 2-year period of the 1946 con-
tract still remaining, this would mean that the petitions are premature.
The Petitioner contends that even under a new 2-year policy the 1946
contract is nevertheless ineffective as a bar because the contract is at
present reopened. The record indicates that in January 1947, the
Intervenor requested negotiations involving changes in wages, hours,
and conditions of employment. At the time of the hearing (February
1947) the parties were still engaged in negotiations.
The negotiations for contract changes were undertaken in accord-
ance with Section 14 of the contract, set forth in the margins And
although the contract does not specifically provide that the original
contract terms shall remain operative pending negotiations thereon,"
we believe that such is the intent of the parties in the absence of a
contract provision to the contrary. Thus, the contract does effec-
tively assure the continuance of substantial contract provisions dur-
ing the second contract year, and, by providing for arbitration of
matters remaining in dispute, the contract removes from either party
the power to terminate or change contract provisions by unilateral
action. We conclude, therefore, that the negotiations respecting
the 1946 contract do not remove the contract as a bar to a present
determination of representatives.'
B Matter of Reed Roller Bit Company , 72 N. L. it. B. 927.
Section 14 reads as follows :
This agreement shall continue in full force and effect from the date of its execution
until March 1, 1950 , subject to the understanding that either party may , on or before
the first day of February of each year and every year of this agreement , commencing
February 1, 1947, request negotiation of wages, hours and conditions of employment,
and, at the request of either party , these negotiations shall commence not later than
the first clay of February of each year , and if the parties cannot agree , any matters
remaining in dispute shall be subject to arbitration in the manner provided in this
agreement.
7 See Matter of S ct W Fuze Foods, Inc., 74 N. L. R. B. 1316
8 See Matter of United States Vanadium Corporation , 68 N. L. R. B. 389 , 392, where the
Board stated : ". . . where a contract provides for modifications during its term, the
negotiation or effectuation of such modification by the parties, without attempting to renew
or extend the term of the contract , does not operate to open the contract so as to permit
PURITAN ICE COMPANY 1315
Under all the circumstances of the case, we find that the 1946
,contract is a bar to an election at this time. Accordingly, we further
find that no question concerning representation has arisen within the
meaning of Section 9 (c) of the National Labor Relations Act. We
shall, therefore,- dismiss the petitions.
ORDER
The National Labor Relations Board hereby orders that the peti-
tions for investigation and certification of representatives of em-
ployees of the plants of the Puritan Ice Company at Gaudaloupe and
Lompoc, California, filed by International Union of Operating
Engineers, Local No. 235, A. F. L., be, and they hereby are, dismissed.
the representation claim of a rival union to raise a question concerning representation."
Quoted with approval in Matter of S & TV Fine Foods, Inc ., supra, and Matter of Greenville
Finishing Company, Inc , 71 N. L. R. B. 436. To the same effect , see Matter of Omar,
Incorporated, 69 N. L. R . B. 1126, 1128; Matter of Douglas Public Service Corp ., 62 N. L.
It. B 651, 653 ; Matter of Magnolia Petroleum Company, 57 N. L. R. B. 1714 , 1717; and
Matter of Green Bay Drop Forge Company, 57 N. L. It. B. 1417, 1420.