Liggett & Myers Tobacco Co.

In the Matter of LIGGETT & MYERS TOBACCO Co., EMPLOYER and FOOD, TOBACCO, AGRICULTURAL & ALLIED WORKERS UNION OF AMERICA, C. I. 0., PETITIONER Case No..5-RD646.Decided April 8, 1947 Messrs. Fred Flowers and S. E. Myl'um, of Wilson, N. C., for the Employer. Messrs. R. C. Thomas, Elijah Jackson, and R. B. Taylor, of Wilson, N. C., for the Petitioner. Dr. R. A. Young and Mr. S. E. Blane, of Durham, N. C., and Mr. George Benjamin, of Richmond, Va., for the Intervenor. Mr. John J. Gallione, of counsel to the Board. DECISION AND ORDER Upon a petition duly filed, hearing in this case was held at Wilson, North Carolina, on October 24, 1946, before Charles 13. Slaughter, hearing officer. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed. Upon the entire record in the case, the National Labor Relations Board makes the following: FINDINGS OF FACT 1. THE BUSINESS OF THE EMPLOYER Liggett & Myers Tobacco Co. is a New Jersey corporation engaged in the purchase, processing, and manufacture of tobacco. It operates plants throughout the United States. The Wilson, North Carolina, plant, the only plant involved in this proceeding, is a subsidiary of the Durham,North Carolina, plant, which is the main factory of the Em- ployer. The Wilson plant receives tobacco from various markets in North Carolina and engages in a process called redrying and tobacco stemming. A portion of the tobacco is stored in Wilson, and the re- mainder in Durham. All of the tobacco processed by the Wilson plant ultimate-)--y reaches the Durham plant, where it is manufactured into cigarettes and pipe tobacco and shipped throughout the United 73 N. L R. B., No 34 207 739926-47-vol. 73-15 208 DECISIONS OF NATIONAL LABOR RELATIONS BOARD States. The Wilson plant normally operates from 3 to 4 months a year, August to November, and processes from 8 to 12 million pounds of tobacco per season at an estimated value of $5,500,000. In 1946, during the off season, the plant employed 12 employees, and at its peak employed 217 employees. The Employer admits and we filid that it is engaged in commerce within the meaning of the National Labor Relations Act. IT. THE ORGANIZATIONS INVOLVED o' The Petitioner is a labor organization affiliated with the Congress of Industrial Organizations, claiming to represent employees of the Employer. Tobacco Workers International Union, herein called the Intervenor, is a labor organization affiliated with the American Federation of Labor, claiming to represent employees of the Employer. III. THE ALLEGED QUESTION CONCERNI \G llEI'RESENTATION As noted in Section I, the Employer's Wilson plant normally op- erates from 3 to 4 months a year, August to November. In 1946, during the off season, the plant employed 12 employees, and at its peak employed 217 employees. On August 19, 1946, the Employer and the Intervenor, by oral agree- ment, conducted an Informal card check which revealed that the Inter- venor represented a majority of the 123 employees at the Employer's Wilson plant. Consequently, on the same day, the parties entered into a contract to be in effect until August 19, 1947, subject to a 30-day automatic renewal clause.2 At this time, only 3 of the 5 departments of the Employer were in operation. However, on the very next day, August 20, the 5 departments were functioning and being operated by the same 123 employees. The Petitioner offered evidence that a letter to the Employer was typewritten on August 16, 1946, claiming majority representation of the employees at the Wilson plant by the Petitioner and requesting recognition as their collective bargaining representative. However, there is no evidence that this letter was ever mailed.3 The Employer denied receipt of this letter of August 16. On August 21, 1946, the Petitioner sent a letter by registered mail, which was received by the Employer, asserting its interest in organizational activity. In this ' The cards were checked against the pay roll of October 1945 ITowevei, these 123 em- plovees were actually- employed by the Employer at the time of the card check 2 Thee is no pie•ious history of collective bargaining at this-plant, but the Intervenor has contracts covering employees of other plants of the Employer which were entered into after such informal card checks 3 The Petitioner declined an oppoi tnnity offered at the hearing to obtain the R itness to whom this letter was turned over for the alleged purpose of mailing LIGGETT & MYERS TOBACCO CO. 209' letter, there were made no claims of representation and no reference to the alleged first letter of August 16. On August 29, 1946, the Peti- l loner sent another letter by registered mail, which was received by the Employer, claiming majority representation and requesting recog- nition as collective bargaining representative. At this time, August 29, 1946, the employment peak of 217 had been reached. The Petitioner filed its petition on September 3, 1946. The Intervenor contends that its 'contract of August 19 with the Employer is a bar to this proceeding. The Petitioner contends that its claim of majority was timely and that the contract is no bar. It further questions the Inter veil or's majority status. While proof that a letter was properly mailed creates a presump- tion that the letter reached its destination and was received by the party to whom it was addressed, in the instant case, there is no evidence that the letter of August 16, 1946, was ever mailed. The Employer denied receipt of the letter. The subsequent letter of August 21 makes no reference to the letter of August 16, nor does it contain any claim of representation or a request for recognition. A claim of majority representation and a request for recognition as collective bargaining representative was first made in the letter of August 29. Under all the circumstances, we are of the opinion that the record does not support a finding that the letter of August 16 was either mailed to or received by the Employer. Consequently, since the contract with the Intervenor was executed on August 19, 1946, before the Petitioner's claim of representation was made, the contract is a bar to an election. Moreover, even if the Employer had received notice of the Petitioner's claim prior to the execution of the contract, this notice would still be untimely, so as to preclude the contract from operating as a bar, because the Petitioner filed its petition on September 3, 1946, more than 10 clays after notice of its chum.4 The Petitioner's contention regarding the majority status of the Intervenor is without merit. In representation cases, the Board will presume the regularity and legality of a collective bargaining contract and refuse to admit evidence on the question of whether or not a majority of the employees covered by such contract had actually designated the contracting union as their representative at the time the contract was made." On the day of the contract, August 19, 1946, the Employer had 123 employees. These employees operated all of the Employer's 5 departments which began functioning; on August 20, 1946. The em- 4 When a petition is filed mole than 10 dais after notice of the claim of representation, an agreement, otheiwise valid, iNhich is executed in the inteival is it bar to an election Matter of General Electric _C-Rail Corporation, 67 N L It r. 997 Matter of item y it etllea, Inc, 68 N L R B 724 Matter of United .Slates Rnbde, Go, lleh oit Plant, 62 N L It B 795 210 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ployment peak of 217 was reached on August 28, 1946, an expansion of approximately 76 percent from the time of the contract. Inasmuch as the size of the unit had less than doubled, and there has been no alteration in the scope and character of the unit, or any change in the basic operations of the Employer, this expansion does not warrant disturbing the existing contractual relationship." Accordingly, under all the circumstances of the case, and on the basis of the entire record, we find that the contract of August 19, 1946, is a bar to a present determination of representatives, and conse- quently, the petition shall be dismissed. The dismissal shall, however, be without prejudice to the Petitioner's right to file a new petition within a reasonable time prior to the termination of the contract, which is in effect until August 19, 1947, subject to a 30-day automatic renewal clause. ORDER IT IS HEREBY ORDERED that the petition for certification of repre- sentatives of employees of Liggett & Myers Tobacco Co., at its plant in Wilson, North Carolina, filed herein by Food, Tobacco, Agri- cultural & Allied Workers Union of America, C. I. 0., be, and it hereby is, dismissed without prejudice. CHAIRMAN HERZOG took no part in the consideration of the above Decision and Order. G Matter of Miller Meters, Inc., 71 N. L. R. B. 1331; cf. Matter of Champion Motors Company, 72 N. L. R. B. 436.