W. & W. Pickle & Canning Co.

In the Matter of W . & W. PICKLE & CANNING CO., EMPLOYER and UNITED PACKINGHOUSE WORKERS OF AMERICA, CIO, PETITIONER Case No. 15-RC-228.Decided July 19,19k9 DECISION AND DIRECTION OF ELECTION Upon a petition duly filed, a hearing was held before Robert B. Stark, 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-member panel [Members Reynolds, Murdock, and Gray]. Upon the entire record in the 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 claiming to represent employees of the Employer. 3. The question concerning representation : On July 24, 1945, United Retail, Wholesale, and Department Store Employees, Local No. 406, CIO, herein called Local No. 406, was, certified by the Board as the exclusive bargaining representative of the Employer's production and maintenance employees,' and on Octo- ber 25, 1945, it entered into a collective bargaining contract with the Employer. The contract was to continue in effect for 1 year and from year to year thereafter in the absence of written notice from either party to the other, 30 days before any anniversary date. It appears that during the first year of the contract, Local No. 406 ceased to, function as the bargaining representative of the Employer's employees and to administer its contract. Since that time, no meetings have been called, membership dues have not been collected, and individual griev- ances have been handled directly by the employees involved rather than through the grievance machinery established in the contract be i Matter of W. & W. Pickle & Canning Company, 15-R-1393. 85 N. L. R. B., No. 47. 262 W. & W. PICKLE & CANNING Co. 263 tween Local No. 406 and the Employer. On April 16,1949, the parent body of Local No. 406 advised the Board by a letter signed by its Southern Regional Director that Local 406 had been defunct for some time and that its contract with the Employer was not regarded by the parent body as being in effect at that time. At the hearing, the Employer admitted that Local No. 406 is a de- funct labor organization but it contended that until Local No. 406 is -decertified in a Board conducted election, the Petitioner may not peti- tion for certification for itself. We find no merit to this contention. There is no requirement in the Act that once the Board has certified a labor organization as a bargaining agent, that labor organization must be decertified before the Board may entertain the petition of a rival union. A certified union is entitled to enjoy its status as exclusive bar- gaining agent free from challenge by a rival union for 1 year after the -certificate has issued, but after the certification year has expired, the Board will entertain the petition of a rival union and proceed to an election provided no contract bars the petition .2 In the instant case, al- most 4 years have elapsed since Local No. 406 was certified. Further- more, the present petition is not barred by the contract between Local No. 406 and the Employer because prior to the 1946 operative date of the automatic renewal clause in the contract, Local No. 406 became de- funct insofar as the employees involved herein are concerned. The result was that on that crucial date it was incapable of renewing the contract on their behalf.3 In view of the foregoing, we find that the present petition is timely. After the close of the hearing in this case, the Employer filed a motion with the Board requesting that the petition be dismissed on the ground that there is no question of representation currently be- fore the Board because the Employer "has formally notified [the Pe- titioner] that the company now recognizes that union as the exclusive ;bargaining agency of its employees." Thereafter, the Petitioner filed an answer to the Employer's motion, urging the Board to deny the mo- tion and order an immediate election. As we recently held in the Gen- e,ral Box case,' an employer's recognition of a union does not in and of itself preclude the union from seeking a Board election and certifica- tion if it so desires. As it is clear that the Petitioner wishes the Board to proceed to an election, we hereby deny the Employer's motion. We find that a question affecting commerce exists concerning the rep- resentation of employees of the Employer within the meaning of Sec- tion 9 (c) (1) and Section 2 (6) and (7) of the Act. 2 Matter of General Boo Company, 82 N. L. R. B. 678. 'Matter of Perfection Spring and Equipment Company, 72 N. L. R. B. 590 ; Matter of Koppers Company, Inc., 72 N. L. R. B. 31. 4 Cited, supra, footnote 2. 264 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 4. We find that all the Employer's production and maintenance em- ployees, including city truck drivers and checkers 5 but excluding alt supervisors, constitute a unit appropriate for purposes of collective bargaining within the meaning of Section 9 (b) of 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 supervision of the Regional Director for the Region in which this case was heard,. and subject to Sections 203.61 and 203.62 of National Labor Relations. Board Rules and Regulations-Series 5, as amended, among the em- ployees in the unit found appropriate in paragraph numbered 4, above,, who were employed 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 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, and also excluding em- ployees on strike who are not entitled to reinstatement, to determine whether or not they desire to be represented, for purposes of collective bargaining, by United Packinghouse Workers of America, CIO. The checkers check packing cases to the packers and have no supervisory authority- over the packers or other employees.