Kress Dairy, Inc.

KRESS DAIRY, INC. 369 KRESS DAIRY, INC. and MILK & ICE CREAM DRIVERS AND DAIRY EMPLOYEES, LOCAL UNION No. 937 , I. B. T. C. W. & H. OF A., AFL. Case No. 5-RC! 964. February .8,1950 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 John M. Dyer, 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 Board 1 finds : 1. The Employer is engaged in the business of processing and selling dairy.products. During the past year at its sole plant located in Baltimore, Maryland,, it made purchases in excess of $2,500,000, of which $134,500 represented materials which were received directly from out of the State. During the same period, the sales of finished products were valued at approximately $3,500,000, none of which was shipped out of the State. Last year the Employer sold approximately $52,350 worth of products to military installations in the State of Maryland and approximately $54,820 worth to veterans' hospitals within the State. The Employer also sold approximately $130,000 worth of products to companies engaged in interstate commerce, of which $48,800 represented products sold to Glenn L. Martin Aircraft Company. It was stipulated at the hearing that the products sold to the military installations, veterans' hospitals, and industrial concerns were all consumed on the premises. The Employer and Kress Farm Dairy Employees Association, Inc., herein called the Independent, contend that it would not effectuate the purposes of the Act for the Board to exercise jurisdiction in this case. We cannot agree. Under the Board's recent plan, jurisdiction is exercised over intrastate enterprises which are a part of the national defense effort 2 or which annually furnish more than $50,000 worth of goods or services necessary to the operation of employees engaged in interstate commerce.' The Employer's operations meet both of these tests. Accordingly, we find that it is engaged in commerce within the meaning of the Act and that it will effectuate the policy of the Act to assert jurisdiction. 2. The Petitioner and the Intervenors, the Independent and Local No. 10, International Union of United Brewery, Flour, Cereal, Soft 1 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 Herzog and Members Houston and Styles]. 2 Westport Moving and Storage Company, Crate Making Division , 91 NLRB 902. 'Lee E Stine d/b/a Fairchild Cafeteria, 92 NLRB 809. 98 NLRB No. 63. 370 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Drink and Distillery Workers of America, CIO, herein called the Brewery Workers, are labor organizations claiming to represent cer- tain employees of the Employer. 3. The Employer and the Independent assert that their current con- tract, executed August 18, 1950, constitutes a bar to this proceeding, as it does not expire until June 9, 1952.• The Petitioner and the Brewery Workers assert that the contract cannot serve as a bar be- cause it contains an illegal union-security clause. The clause in ques- tion provides : As a condition of employment, all those employees now working for the Company within the bargaining unit shall, not later than two weeks after the signing of this contract, become members in good standing of the Union. All employees hereafter employed by the Company within the bargaining unit shall, not later than three months-after commencing work, become members in good standing of the Union. Any employee who fails to continue as a member in good standing of the Union during the term of this contract shall, upon notice from the Union to the Company, be discharged at the conclusion of the work week within which such notice shall be received by the Company. Clearly the foregoing language does not accord to nonunion em- ployees, who were employed before the contract was executed, the full 30-day grace period required by Section 8 (a) (3) of the amended Act. However, the Employer and the Independent contend that this apparent defect was cured because the contract was made effective ret- roactively to June 10, 1950. Thus, it is argued that nonunion em- ployees actually were given a grace period of 83, days from June 10' until 2 weeks after the contract was executed on August 18. We must reject this argument. In writing the 30-day grace period into Section 8 (a) (3), the Congress clearly intended to assure that all nonmembers of a union who were employed when a union-security contract was executed, and all employees employed thereafter, should have 30 days in which to join the union. It is fundamental, therefore, that the statutory 30 days must be counted prospectively from the date of execution of a union-security contract. A contrary holding would allow unions and employers to defeat the congressional purpose, at least in part, by pre- dating by 30 days every contract containing a union-security clause. As the union-security clause in the instant case affords old employees only 2 weeks after the signing of the contract within which to join the Union, it is invalid. Accordingly, the current agreement cannot serve as a bar to a present determination of representatives. KRESS DAIRY, INC. 371. 4. The Petitioner requests that the Board find appropriate a unit confined to the Employer's driver-salesmen, special deliverymen, swing men, and route foremen.-' The Employer, the Independent, and the- Brewery Workers contend that the present contractual unit is appro- priate. The present unit, in addition to the employees sought by the- Petitioner, includes garage and plant employees. However, like the. Petitioner's requested unit, it excludes the employees in the refrigera- tion, power, and administrative departments as well as janitors and_ watchmen. It was stipulated at the hearing that the Petitioner represented the employees in the present contractual unit from May 1938 until De- cember 1940, and that the Independent has represented them in the- same unit ever since. It further appears that similar over-all units are established in almost every dairy in the Baltimore-Washington- Annapolis area, and that the Petitioner intends to represent the Em-- ployer's employees on the same basis as soon as it organizes those who work in the garage and plant. In these circumstances, and because- the record reveals that there is some interchange between the plant and outside workers, we conclude that the unit requested by the Peti-- tioner is inappropriate. On the record before us, a contrary holding would of necessity be based solely upon the extent of the Petitioner's effective organization, and thus would contravene Section 9 (c) (5) of the Act. However, we shall not dismiss the petition herein, because the Brewery Workers seeks an election in the present contractual: unit .5 Upon the entire record we find that the present contractual unit, consisting of driver-salesmen, special deliverymen, swing men, route- foremen, and garage and plant workers employed at the Employer's- Baltimore, Maryland, dairy, excluding all employees in the refrigera- tion department, power department, administrative department, and all guards and supervisors as defined in the Act, constitutes a unit- appropriate for the purposes of collective bargaining within the mean- ing of Section 9 (b) of the Act. [Text of Direction of Election omitted from publication in this volume.] 4 All of the parties agree that route foremen are not supervisors within the meaning of- the Act and should be included in the bargaining unit. 5 At the hearing, the Brewery workers, in support of its motion to intervene, made at sufficient showing of interest to warrant an election in the broader unit