R. L. Downing, Inc.

National Labor Relations Board - Board Decisions

Apr 20, 1960

127 N.L.R.B. 288 (N.L.R.B. 1960)

288 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ployees of the Employer employed at its building No. 2 in or near
West Mifflin, Pennsylvania.
[The Board dismissed the petition and amended the CertificatioL
of Representatives issued in Case No. 6-RC-673 on March 31, 1951,
to United Steelworkers of America, AFL-CIO, to include employees
of the Employer at its building No. 2 in or near West Mifflin,
Pennsylvania.]
R. L. Downing , Inc. and Laurent A. Gauthier, Vinal E. Boothby,
Jr. and Vincent P. Barry, Petitioners and Carbonated Bever-
age, Beer Distributors , Wine & Liquor Drivers & Helpers,
Production Workers, Bottlers, Warehousemen & Office Em-
ployees, Local Union No. 939, affiliated with International
Brotherhood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America. Case No. 1-RD-311. April 20, 1960
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 Thomas E. McDonald, hear-
ing 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 Rodgers and Jenkins].
Upon the entire record, the Board finds :
1. The Employer is engaged in commerce within the meaning of
the Act.
2. The labor organization named above claims to represent certain
employees of the Employer.
3. Petitioners assert that the Union, which is currently being recog-
nized by the Employer as the bargaining representative of the em-
ployees in the appropriate unit, is no longer a representative as defined
in Section 9 (a) of the Act.
The Union has moved to dismiss the petition upon the grounds that
(a) Laurent A. Gauthier, one of the Petitioners herein, is a supervisor
within the meaning of the Act and therefore is not qualified to file
the present petition, and (b) contract bar.
As stated in Modern Hard Chrome Service Company,2 the first
question to be decided herein is the status of the alleged supervisor,
Gauthier. The record shows that Gauthier has been employed by the
'The hearing officer properly excluded evidence of alleged employer assistance in filing
of the .petition . Union Manufacturing Company, 123 NLRB 1633.
2124 NLRB 1235.
127 NLRB No. 30.
R. L. DOWNING, INC. 289
Employer as a warehouseman for approximately 7 years. He is
hourly paid , punches a time clock , receives pay for overtime worked,
is not paid for time absent from work, is a member of the Union, and
was covered by its contract provisions . He has no power to hire, fire,
transfer, suspend, layoff, recall , promote, discharge , reward, or dis-
cipline other employees or effectively recommend such action. The
Employer 's shipping operation employs four truckdrivers and three
warehousemen or helpers under the supervision of Nason, the shipper.
In the absence of Nason, Gauthier will assign trips and routes to the
drivers, while in some instances the drivers will themselves line up
trips. The records show that Nason was absent from work only
a few days , at the most, during the last year . On the basis of the en-
tire record herein, we find that Gauthier is not a supervisor and there-
fore deny the Union 's motion to dismiss. the petition on this ground.
The Employer herein is engaged in the liquor distributing business
in Waltham, Massachusetts. In 1958, the Union was certified by the
Massachusetts State Board as the collective-bargaining representative
of the shipping unit employees of the Employer . Thereafter, upon
being approached by a union representative concerning negotiations,
the Employer referred the Union to Attorney Vernon C. Stoneman.
Stoneman testified that for several years he has represented an in-
formal group of five liquor dealers, called the Big Five, and has
negotiated contracts with the Union on their behalf . Such contracts
were joint contracts . In October 1958, he was retained by the Em-
ployer and subsequently negotiated a separate contract of 6 months'
duration with the Union . The contract terms were substantially
those contained in the Big Five contract and the contract was to expire
on the same date as the Big Five contract , June 30, 1959. Subsequently
Stoneman entered into negotiations for a new contract on behalf of
the Big Five but had no express authority to negotiate on behalf of
the Employer . He "assumed from past experience that they would go
along with what he negotiated on behalf of the others ." Though, as
he stated , he had no direct authority to agree to a contract on behalf
of the Employer, upon completion of negotiations with the Union on
behalf of the Big Five, he prepared and forwarded to the Employer
a separate contract with essentially similar terms . The Employer
received its contract after December 11 , 1959, but this contract has
never been signed by the Employer. The Union, in substance, urges
as a bar the contract between it and the Big Five, which was executed
at the end of the 1959 negotiations.
Assuming that the Big Five was a multiemployer association for
the purposes of bargaining, the record is clear that even though the
Employer engaged the Association attorney to represent it in negoti-
ations and signed a contract which was essentially the same as the
Association contract , the Employer herein did not intend to, nor did
560940-61-vol . 127-20
290 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
it, become a member of the Association. In the instant case there
was no consent by the Employer to become part of "whatever associ-
ation existed among the Big Five.3 The Employer was therefore free
to reject the 1959 contract presented to it. Accordingly, as the Em-
ployer never signed the Big Five contract, that contract is not a bar,
and the Union's motion to dismiss on the ground of contract bar is
denied.
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.
The following employees of the Employer constitute a unit appro-
priate for the purposes of collective bargaining within the meaning
of Section 9 (c) of the Act :
All drivers, helpers, and- warehouse employees of the Employer
at its plant in Waltham, Massachusetts, excluding all other employees,
guards, and supervisors as defined in the Act.
[Text of Direction of Election omitted from publication.]
a See Andes Fruit Company, et al., 124 NLRB 781.
Lively Service Company and International Association of Ma-
chinists, Lodge No. 1635, AFL-CIO. Case No. 33-CA-530.
April 91, 1960
DECISION AND ORDER
On June 24, 1959, Trial Examiner Wallace E. Royster issued his
Intermediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the copy of the Inter-
mediate Report attached hereto. Thereafter, the Respondent filed
exceptions to the Intermediate Report and a supporting brief.
The Board has reviewed the rulings made by the Trial Examiner at
the hearing and finds that no 'prejudicial error was committed. The
rulings are hereby affirmed.' The Board has considered the Interme-
i At the hearing and in its brief the Respondent alleges a failure on the part of the
General Counsel to follow Board procedures in the following particulars : ( a) Issuance
of a complaint without obtaining a statement from Respondent as to its position; and
(b) the amended complaint was based on an additional charge, which had been given a
case number different than that of the original charge .(Case No. 33-CA-552 instead of
Case No. 33-CA-530).
We find no merit in Respondent ' s first allegation. The original complaint was issued
on February 27, 1959. The applicable section of the Board 's Statements of Procedures
(Section 101 .4 entitled "Investigation of Charges ," amended effective February 16, 1959,
and appearing at 24 F.R. 1096 ) permitted the Regional Director in his discretion to dis-
127 NLRB No. 41.