S & W Fine Foods, Inc.

National Labor Relations Board - Board Decisions

Aug 21, 1947

74 N.L.R.B. 1316 (N.L.R.B. 1947)

In the Matter of S & W FINE FOODS, INC., EMPLOYER and WAREHOUSE
UNION, LOCAL 6, I. L. W. U ., C. I. 0 ., PETITIONER
Case No. 20-B-1844.-Decided August 21, 1947
Messrs. C. Richard Lange and J. A. Driscoll , of San Francisco,
Calif ., for the Employer.
Edises, Treuhaft dl Condon , by Mr. Bertram Edises, of Oakland,
Calif., for the Petitioner.
Tobriner dl Lazarus , by Mr. Mathew 0. Tobriner , of San Francisco,
Calif., for the Intervenor.
Mr. Edmund J. Flynn, of counsel to the Board.
DECISION
AND
ORDER
Upon a petition duly filed, hearing in this case was held at San
Francisco, California, on February 4,1947, before Wallace E. Royster,
hearing officer. The hearing officer's rulings made at the hearing are
free from prejudicial error and are hereby affirmed. At the hearing
the Intervenor moved to dismiss the petition. For 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
S & W Fine Foods, Inc., a California corporation, is engaged in
processing, packing, and selling fruits, vegetables, and other food
products at Redwood City, California. The Employer's purchases
of raw materials shipped to it from points outside the State of Cali-
fornia annually exceed $50,000 in value. The Employer's shipments
of food products to points outside the State annually exceed $100,000
in value.
The Employer admits and we find that it is engaged in commerce
within the meaning of the National Labor Relations Act.
74 N. L. R. B., No. 219.
1316
S & W FINE FOODS, INC.
II. THE ORGANIZATIONS INVOLVED
1317
The Petitioner is a labor organization affiliated with the Congress of
Industrial Organizations, claiming to represent employees of the
Employer.
Candy & Glace Fruit Workers Union, Local 158, herein called the
Intervenor, is a labor organization affiliated with the American Fed-
eration of Labor, claiming to represent employees of the Employer.
III. THE ALLEGED QUESTION CONCERNING REPRESENTATION
Since 1943 the Intervenor has represented the Employer's produc-
tion and maintenance employees through exclusive collective bargain-
ing contracts. The most recent contract was executed on July 9, 1946,
to terminate on April 1, 1948. It contains the usual coverage of work-
ing conditions. On July 30, 1946, the Petitioner requested recognition
as bargaining representative from the Employer, and on the same day
filed the petition herein.
The Employer and the Intervenor contend that the 1946 contract is
a bar to an election in this proceeding. The Petitioner contends, how-
ever, that this contract was not a binding agreement between the Em-
ployer and the Intervenor on the date the petition was filed. In
support thereof the Petitioner asserts that (1) on July 24, 1946, the
employees covered by the contract engaged in a 1-day walk-out in
protest over an ambiguity in certain of the contract provisions; and
(2) the ambiguity was resolved by an arbitrator whose findings were
made known on July 30. We do not agree with the Petitioner's con-
tention, for the contract was valid when made and the circumstances
asserted by the Plaintiff do not affect such validity. In any event,
we note that the alleged invalidating circumstances were resolved
before receipt of the Petitioner's representation claim.,
The Petitioner further contends, however, that the contract is no
bar to the present proceeding in view of the fact that it was opened
up for negotiation during the contract period and after the filing of
the petition herein. Section 20 of the contract, designated Effective
Date and Reopening, provides as follows :
(a) This agreement shall become effective as of the date ex-
ecuted by the parties hereto and shall remain in effect until April
1, 1948 and shall continue in effect from year to year thereafter
unless changed or terminated in the manner later provided herein.
(b) This agreement may be opened by either party as pro-
vided herein for negotiation of wages, hours, and working con-
' See Matter of Mississippi Lime Company of Missouri. 71 N. L. R B. 472.
1318 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ditions not more than ninety (90) days nor less than sixty (60)
days prior to April 1, 1947.
(c) Either party desiring to change or terminate this agree
ment must notify the other in writing not more than ninety (90)
days nor less than sixty (60) days prior to April 1, 1948. When
notice of change only is given, the nature of the changes desired
must be specified in the notice, and until a satisfactory conclusion
is reached in the matter of such changes, the original provisions
shall remain in full force and effect. When the agreement is
opened by one party hereto, the other party shall be permitted to
introduce any other changes or modifications it desires to make.
On January 28, 1947, pursuant to Section 20, the Intervenor served
on the Employer a "notice to reopen our agreement," requesting (1)
changes in the provisions covering hourly pay rates, overtime pay,
working hours, paid holidays, and vacations; (2) deletion of provisions
governing shift differential and work stoppage; and (3) additional
provisions covering sick leave , meal periods , and work periods. These
changes and deletiohis involve 4 of the 20 sections of the contract. At
the time of the hearing the Employer had taken no action on the Inter-
venor's notice to reopen. It is the Petitioner 's position that the notice
of January 28 removes the contract as a bar on either of two grounds :
(1) the notice opens for renegotiation the duration provisions of the
contract and the notice can therefore be construed as a notice to termi-
nate the contract ; or (2) the notice completely reopens all the substan-
tive provisions of the contract thereby removing the collective bargain-
ing ties between the parties.
The basis of the Petitioner's first ground is that although paragraph
(b) limits negotiations to those involving "wages, hours , and working
conditions ," that nevertheless when it is coupled with the language of
paragraph ( c) permitting the introduction of "any other changes or
modifications ," the scope of negotiations is unlimited and includes any
desired alterations of the termination date of the contract . The par-
ties to the contract assert that it was not their intention to permit
reopening of the terminal date of the contract or that the Intervenor
intended such result by the afore -mentioned notice of January 28.
Construing the contract as a whole , we agree that the parties did not
intend to permit renegotiation of the terminal provision of the con-
tract, as distinguished from the substantive provisions thereof. To
reason otherwise would make ineffective the plain purpose of para-
graph ( a) that the contract "shall remain in effect until April 1, 1948."
We find, therefore, that the reopening provisions of the contract do
not affect the expiration date of the contract and that the notice to
reopen does not constitute a notice to terminate the contract.
S & W FINE FOODS, INC. 1319
The basis of the Petitioner's alternative ground is that even though
negotiations pursuant to the notice be limited to those involving "wages,
hours, and working conditions," the contract is nevertheless completely
reopened, for the parties can virtually rewrite the entire contract.'
A contract permitting such a broad reopening, the Petitioner in effect
argues, is hardly more than a recognition agreement 3 and is not con-
ducive to the establishment of collective bargaining stability.
First it should be noted that there is no analogy to a recognition
agreement. The terms of the present contract, as previously noted,
cover completely the usual run of working conditions; and Section 20
provides that "these original provisions shall remain in full force and
effect" until negotiations for changes have been satisfactorily con-
cluded. It is clear, therefore, that the present contract is not only for
a term certain but that, unlike a, mere recognition agreement, it will
at all times embody substantive terms in regard to wages, hours, and
working conditions.
We have frequently indicated that negotiations pursuant to a re-
opening provision similar to Section 20 of the present contract do
not remove the contract as a bar so long as the duration of the con-
tract is not affected. For example, in Matter of United States Vana-
dium Corporation ,4 the Board stated that "where a contract pro-
vides 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 the representation claim of a rival union to raise a
question concerning representation." 5
We do not agree that a reopening clause in a collective bargaining
agreement precludes stability in all bargaining relationships. It does
not in any way deprive employees of representation which was ac-
cepted or ratified at the outset of the contract term. Rather than
undermine the collective bargaining process, as the Petitioner implies,
a reopening provision more forcefully emphasizes the role of the
bargaining process in adjusting contract terms to the reasonable
necessities of contracting partles.6
' However , as hereinbefore noted ,' the changes sought by the Intervenor involve only 4
of the 20 contract provisions.
For cases involving recognition agreements, see Matter of C. V. Hill & Company, Inc.,
64 N. L. R B. 1109 , 1110; and Matter of Standard Oil Company of Indiana , 56 N. L. It. B.
1101,1102-3
4Matter of United Stases Vanadium Corporation , 68 N. L R B. 389.
Id. at p 392 ; quoted with approval in Matter of Greenville Finishing Company, Inc.,
71 N. L. It. 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 R B 651, 652, Matter of
Magnolia Petroleum Company , 57 N L It. B 1714 , 1717; and Matter of Green Bay Drop
Forge Company, 57 N. L. R B. 1417, 1420
Cf N L. R B. v . The Sands Manufacturing Company, 306 U. S 332, 342.
1320 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
We are not persuaded that the right to reopen is less applicable
to a situation where, as here, the contract covers not a 1-year period
but a 2-year period. In view of the immunity recently given valid
2-year contracts in the Reed Roller Bit case by "refusing to interfere
with bargaining relations secured by collective agreements of 2-year
duration," 7 the need for reopening such contracts becomes increasingly
heightened. A decision which would in effect freeze contract pro-
visions for a period of 2 years without permitting substantial reopen-
ing of the contract at the end of the first year overlooks the state of
flux of our present economic life in which, among other things, the
cost of living and production output and standards are ever changing.
Flexibility within an established collective bargaining framework
would seem reasonably necessary to accommodate employment condi-
tions to economic changes.
Inasmuch as the 1946 contract is for a term certain and inasmuch
as it provides assurance that substantive terms will remain in effect
during the contract term, we hold that the 1946 contract is a bar to
a present determination of representatives. In view of these findings,
we conclude 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 petition.
ORDER
The National Labor Relations Board hereby orders that the petition
for investigation and certification of representatives of employees
of S & W Fine Foods, Inc., Redwood, California, filed by the Ware-
house Union, Local 6, I. L. W. U., C. I. 0., be, and it hereby is,
dismissed.
7 Matter of Reed Roller Brat Company , 72 N. L. R. B. 927.