Crowley's Milk Co., Inc.

I 1 f In the Matter of CROWLEY!S. MILK COMPANY,, INC., EMPLOYER and MILK DRIVERS & DAIRY EMPLOYEES, LOCAL 680, INTERNATIONAL BROTHERHOOD or TEAMSTERS, CHAIIFFEIIRS, WAREHOUSEMEN AND HELPERS, PETITIONER Case No. 2-RC-188.-Decided September 13,1948 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 Petitioner is a labor organization affiliated with the American Federation of Labor claiming to represent employees of the Employer. United Dairy Workers Association, Paterson Local, herein called the Intervenor, is an unaffiliated labor organization claiming to represent employees of the Employer. 3. The question concerning representation : The Employer refuses to recognize the Petitioner as the exclusive bargaining representative of certain of its employees. The Employer and the Intervenor contend that an existing contract between them bars this proceeding. On March 1, 1947, the Employer and the Intervenor executed a collective bargaining contract for a term of 1 year with provision for automatic renewal from year to year thereafter, unless either of the parties served notice upon the other, not less than 30 days prior to the expiration date, "of intent to negoti- *Chairman Herzog and Members Reynolds and Murdock. 79 N. L. R. B., No. 81. 602 CBOWLEY'S' MILK COMPANY, INC. `603 =a`te 'a contract' on 'different terms." On January 22; 1948,=the Inter- venor sent a letter to the Employer stag ing that it was "ready to negoti- ate for our 1948 contract." On February 11, 1948, the Intervenor -rejected';acid returned by mail a proposed new contract submitted by the Employer. On February 18, 1948, the Petitioner filed with the 'Board the petition herein: On May 12, 1948, the Employer' and the Intervenor 'executed a' collective bargaining `agr'eem'ent 'p`roviding, inter alia, for increased wage rates. • We find no'merit in the Employer's contention that the .failure on -the part of the Intervenor to comply with the notice requirements of Section 8 (d) (1) and (3) of the amended Act effected the automatic renewal of the 1947 contract. Section 8 (d) (1), providing for 60 days' notice prior to the expiration date of a contract of a ,desire to modify and terminate such contract, and Section 8 (d) (3), providing for- notice to the' Federal Mediation and Conciliation Service of the ,existence of a dispute between the contracting parties, are merely par- ticular aspects of the definition of collective bargaining in the amended Act and' do not affect the actual terms of the contract governing auto- matic renewal.' We find that the Intervenor's letter of January 22, 1948, and its subsequent negotiations with the Employer were sufficient to forestall the automatic renewal of the 1947 contract. It is unnecessary for us to decide whether the May 12,1948, contract was negotiated and signed by duly authorized representatives of the Intervenor, whether this document represents a new and complete collective bargaining agree- ment, or whether it was merely a "voluntary grant," as contended by the Employer. In any case, this instrument cannot operate as a bar, 'because it was executed after the filing of the present petition. 'Ac- cordingly, we conclude that there is no contractual bar to a present de- termination of representatives. 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 appropriate for purposes of collective bargaining within the meaning of Section 9 (b) of the Act : All production and plant maintenance employees of the Employer at its Paterson, New Jersey, plant, including truck drivers and the Janitor, but excluding office and clerical employees, and supervisors 2 5. The determination of representatives : 1 See Matter of International Harvester Company, 77 N. L. R. B. 242. ' This is substantially the same unit covered in the agreements between the Employer and the Intervenor. M4 DECISIONS,OF NATIONAL LABOR-RELATIONS BOARD Although a strike,1 called .by the-Petitioner , has been .in progress _at the Employer's plant since April, 29, 1948, the ]Employer has con- .,tinued operations -with certain non-strikers and replacements.' De- spite -the ,strike, .there.appears ,to be no, obstacle .to -holding an imme- .diate election.' The,par-ties are in dispute concerning the date to be used in the election to determine, eligibility to vote. The Petitioner requests-that the Board use the date of Februaly,17, ;1948, the-day;before,the.filing .of ,its petition ; the Inter-uengr.urges that the Board follow its usual practice in , selecting, the.ellgibility date; .and the Employer indicated, ,in effect,,that it desires the selection,of such a date as would,exclude as ineligible the current -strikers: - ' The hearing. officer.•proper-ly,rejected the Employer's offer to prove, in substance: •1. That the Petitioner does not •represent-any employee of the Em- ployer, and, consequently, has no present interest which entitles it to .an election. - 2. That each person ,whom the Petitioner claims to represent [the strikers] is no longer an employee of the Employer and has no right .to reinstatement, since the Employer .had permanently filled every ,available position in its-employ. 3. That the, Petitioner has called' and -maintained an illegal strike ,against the Employer to . secure higher wages and recognition 6 The evidence sought to-be introduced in this offer of proof concerns (a) the Petitioner's prima facie showing of interest, which has long been ,established ,as a matter for administrative.determination and not sub- ject to,direct or collateral attack;' (b) alleged unfair labor practices, -which as a matter of Board policy is not properly admissible in representation hearings; and (c) the issue of the eligibility of strikers and replacements to vote in the election, which we have,held can best be resolved -by, proceeding with an immediate election, using a current pay roll, and permitting affected individuals to cast ballots under challenge.8 In the ev,ent,that the counting of challenged ballots could 8 Although the Petitioner alleged at the hearing that the strike was caused by unfair lahor,practices,of the,Employer•.no,such charges have been filed with the Board. The record shows that at the time of hearing herein there were 11 individuals in the unit actually working and that prior to the strike there were 24 employees in this unit. a Neither the Petitioner nor the Intervenor opposes the holding of an immediate election. The Employer requested that no-election be directed in this case until the Board disposed •of-the unfair labor practice charge filed against the Petitioner in Case No. 2-CC-43. On -August •14, 1948; ,the General Counsel dismissed the Employer's appeal from the Regional Director's refusal to issue a complaint-based upon the charges in Case No 2-CC-43. s Upon the hearing officer's rejection of its offer of proof, the Employer refused to partiei- pate further in the hearing, and withdrew. Matter of 0. D. Jennings if Company,'68 N.'L.'R B: 516 9Metter of Pipe Machinery Company, 76 N L R B' 247, Matter of H 0. Canfield Company, 76 N L R. B. 606. 1 f CROWLEY'S MILK COMPANY, INC. 605 affect the outcome of the election, a further investigation will be con- ducted to determine the employment status of these challenged voters .9 Accordingly, we shall direct an immediate election, permitting all employees to participate who were employed during the pay-roll pe- riod immediately preceding the date of this Direction. All persons hired since April 29, 1948, the date of the strike, and all strikers shall be deemed presumptively eligible to vote, subject to challenge 70 DIRECTION OF ELECTION 11 As part of the investigation to ascertain representatives for the purposes of collective bargaining with Crowley's Milk Company, Inc., Paterson, New Jersey, 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 supervision of the Regional Director for the Second Region, subject to Sections 203.61 and 203.62, of Na- tional Labor Relations Board Rules and Regulations-Series 5, and subject to our determination in Section 5, supra, among the em- ployees in the unit found appropriate in Section 4, above, who were -employed during the pay-roll period immediately preceding the date ..Of this Direction, including' employees who did not work during said pay-roll period because they were ill or on vacation or temporarily laid off, but excluding those employees who have since quit or been discharged for cause and have not been rehired or reinstated prior to the date of the election, to determine whether or not they desire to be represented by Milk Drivers & Dairy Employees, Local 680, International Brotherhood of Teamsters, Chauffeurs, Warehousemen find Helpers, for the purposes of collective bargaining. 9 Section 9 (c) (3) of the amended Act provides that "Employees on strike who are not ,entitled to reinstatement shall not be eligible to vote " However, we cannot accurately determine at this stage of the proceeding which of the strikers have been validly replaced and which are still entitled to reinstatement , to do so would require the ascertainment of facts determinable as,of the pay-roll period immediately preceding the date of this Direction, which is the period selected to test voting eligibility 10 Nothing in this Direction should be construed as indicating that the Board has pre- judged in any respect any of the questions which may be drawn into issue by a challenge to the eligibility of certain voters, including such questions as whether (1) a new employee is a permanent replacement, (2) a striking employee has been validly replaced, or (3) any employee's position no longer exists by reason of its permanent discontinuance for economic reasons. Matter of Longhorn Roofing Products, Inc., 67 N L. R. B. 84; Matter of Geitoch Tanning Company, 59 N L. R B 1183 11 Having failed to achieve compliance with the filing requirements of the Act, the Inter- venor will not be accorded a place on the ballot