Associated Food Distributors, Inc.

574 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to the MMTC for such unit, which the Board, under the circum- stances, finds appropriate for the purposes of collective bargaining. If a majority of the employees in voting group (b) vote for the MMTC and if a majority of the employees in voting group (a) vote for TWUA, the Regional Director is instructed to issue a certification of representatives to the TWUA for a separate unit of production em- ployees, which the Board, under the circumstances, finds appropriate for the purposes of collective bargaining. However, if a majority of the employees in voting group (b) do not vote for the MMTC, such group will be appropriately included in the same unit with the employees in voting group (a) and their votes will be pooled with those in voting group (a) 8 The Regional Di- rector conducting the elections is instructed to issue a certification of representatives to the TWUA if that labor organization is selected by a majority of the employees in the pooled group, which the Board, in such circumstances, finds to be a single unit appropriate for the pur- poses of collective bargaining. [Text of Direction of Elections omitted from publication.] MEMBER PETERSON took no part in the consideration of the above Decision and Direction of Elections. 8 If the votes are pooled, they are to be tallied in the following manner : The votes for the union seeking a separate unit of maintenance employees shall be counted as valid votes, but neither for nor against the union seeking to represent the more comprehensive unit; all other votes are to be accorded their face value, whether for representation by the union seeking the comprehensive group or for no union. See Westinghouse Electric Corporation, 108 NLRB 556, footnote 14. ASSOCIATED FOOD DISTRIBUTORS , INC. and MISCELLANEOUS DRIVERS, LOCAL 223, INTERNATIONAL BROTHERHOOD OF TEAMSTERS , CHAUF- FEURS, WAREHOUSEMEN AND HELPERS OF AMERICA , AFL, PETITIONER. Case No. 36-IBC-982. July 29,1954 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 E. G. Strumpf, hear- ing officer. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed. Upon the entire record in this case, the Board finds : 1. The Employer 1 is engaged in commerce within the meaning of the Act. 1 The Employer is a voluntary bargaining association of which the following firms, all of Portland, Oregon, are members : Wadhams & Co, United Grocers, Inc., Hudson House, Inc, General Grocery Co. Inc., and Northwest Grocers. 109 NLRB No. 86. ASSOCIATED FOOD DISTRIBUTORS, INC. 575 2. The labor organizations involved claim to represent certain em- ployees of the Employer? 3. A question affecting commerce exists concerning the representa- tion of employees of the Employer within the meaning of Section 9 (c) (1) and Section 2 (6) and (7) of the Act 3 The Employer and the Intervenor contended that their current con- tract constitutes a bar to this proceeding. The preceding contract between these parties terminated on August 1, 1953, upon timely notice given by the Intervenor. Thereafter the parties began negotiations for a new contract. On September 3, 1953, the parties signed a docu- ment entitled "Employer Proposal for Settlement for New Agree- ment," which the Intervenor contends is a contract effectively barring an immediate direction of election. For reasons stated below we find it unnecessary to determine whether this "proposal" is, in fact, a valid contract. Petitioner alleges that its agents, John Sweeney and Clyde Crosby, notified the Employer of its representative interest in the Employer's employees by a telephone call on September 2, 1953. The record con- tains conflicting evidence as to whether the call was made on Septem- ber 2 or 3. Elmer Williams, the Employer's representative with whom Sweeney spoke, while at first uncertain whether Sweeney called on September 2 or not, testified that the call followed the execution of the "proposal." Sweeney, on the other hand, testified that Williams, in response to an inquiry, stated that he had not yet signed an agreement with the Intervenor. More definite evidence, in our opinion, is to be derived from the testimony of James Haggin, an official of the Petitioner, who listened to the conversation on an extension phone. Haggin testified that the call was made about 4 p. in. on September 2. He was certain of the date because he had been in Medford, Ore- gon, on September 1, had arrived in Portland on September 2, and had left for Longview, Washington, the morning of September 3. On the basis of the foregoing we find that it was on September 2 that Peti- tioner notified the Employer of its representative interest in the Employer's employees. There is also conflicting evidence in the record as to the statements made by Sweeney and Crosby in their telephone conversation with Williams on September 2. The Petitioner contends that they told Williams that Petitioner represented a majority of the officeworkers and stated that Petitioner would file a petition covering these em- ployees. Williams testified that instead of informing him that Peti- tioner then represented a majority of the employees, Sweeney and 2 Office Employes International Union, Local 11, AFL, was permitted to intervene at the hearing on the basis of its current contract with the Employer. 8 For reasons stated below the Intervenor's motion to dismiss the petition on various grounds is denied. 576 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Crosby implied quite the contrary. All the parties agree, however, that they did inform Williams that Petitioner was going to file a petition for the employees in question. We find it unnecessary to resolve the conflict in evidence concerning the exact tenor and substance of Petitioner's notification to the Em- ployer. Even assuming Petitioner implied to the Employer that it did not then represent a majority, we deem Petitioner's notice of its intention to file a petition determinative of the case on the basis of a reexamination of the rule established in General Electric X-Ray Cor- poration.4 In the past the Board has said that a union seeking to invoke the General Electric X-Ray rule must allege in its notice to the employer, at least by implication,' that it represents a majority of the employees. We believe that a literal adherence to this requirement conditions the operation of the 10-day rule upon an unnecessary technicality. The Board makes no attempt, administratively or otherwise, to determine the accuracy of such a. claim when it is made. We agree with this latter policy-the issue of majority representation is most appropri- ately resolved by an election-but think it demonstrates that the Board considers the accuracy of the claim of little significance. An addi- tional indication that the rule is not predicated upon the assumption that the outside union making the majority claim actually represents a majority is the fact that such a union is accorded 10 days after making its majority claim in which to file a petition supported by only a 30 percent showing of interest. And finally, in the General Electric X-Ray case itself, the Board expressly characterized such claims as "bare" or "naked," the presentation of which "places no onus on the claimant to substantiate its claim and thus gives rise to no inference of substantial interest." Nor can we discern any salutory purpose to be served by adhering to this formality. The requirement only poses for a petitioner a question for which no logical answer is possible. If the union needs a showing of only 30 percent employee support when it files its petition 10 days later, what evidence, or degree, of employee support must it have before it can legitimately make a claim to represent a majority? In sum, we believe that to say a union may invoke the 10-day rule only by claiming a majority in its notice to the employer is to perpetu- ate a needless technicality which bears little relation to any desirable objective and which raises more problems than it resolves. Accord- ingly, we shall abandon it. Realistically viewed, the policy established in the General Electric X-Ray case does not require that a union use any particular form of words in notifying an employer of its interest in the employees. It is enough that the employer be reasonably ap- 4 67 NLRB 997, at 1000 5 Essex Wire Corporation, 102 NLRB 332, at 333. ASSOCIATED FOOD DISTRIBUTORS, INC. 577 prised that the petitioner actively seeks to become the exclusive bar- gaining representative, whether by notice of the outside union's asser- tion of a majority, by notice of its request for recognition or by no- tice of its intention to initiate a representation proceeding before this Board to challenge the position of the incumbent union. Ac- cordingly, we find that where, as here, the employer is made aware that another union is about to file a petition, and that petition, sup- ported by a 30-percent showing of interest, is actually filed within 10 days, a contract signed in the interim cannot operate as a bar to an election. We also find no merit in the Intervenor's objections that the origi- nal petition contained technical defects and was untimely filed. The defects in the original petition were corrected by the amended petition and were not, in any event, prejudicial to the Intervenor. Since the tenth and last day, under General Electric X-Ray, on which the Peti- tioner could file its petition fell on Saturday, a day when the Board's offices were normally closed, the petition was timely when filed the following Monday.6 4. The parties herein are in agreement, and we find, that the follow- ing employees constitute a unit appropriate for the purposes of collec- tive bargaining within the meaning of Section 9 (b) of the Act : All office clerical employees employed by member firms of Associated Food Distributors, Inc., in their wholesale grocery businesses at Portland, Oregon, excluding inside and outside salesmen, confidential employees, guards, professional employees, and supervisors as defined in the Act. [Text of Direction of Election omitted from publication.] MEMBER MURDOCK, dissenting : I must dissent from the decision of the majority to overrule an his- toric and basic principle in the application of the Board's contract-bar rules. Until today the Board had always held that an outside labor organization could raise a question of representation only by a rival claim that it rather than the incumbent union represented a majority of the employees. It was this rival claim that put the Employer and incumbent union on notice that another labor organization had a substantial interest in representing the employees and brought into play the rule that a contract signed after such notice could not bar an immediate election. In the early years of the Act a mere oral claim was equated with formal language in the petition that "a sub- stantial number of employees wish to be represented for purposes of collective bargaining. . . ." This language derives directly from the provisions of Section 9 (c) of the Act, which sets forth in detail the conditions upon which the Board may find that a question of 6 Essex Wire Corporation, supra, at 333 578 DECISIONS OF NATIONAL LABOR RELATIONS BOARD representation exists. After some years of experience the Board concluded that an informal claim to representation was not entitled to the same weight accorded a written claim in the petition, which would set in motion the Board's machinery for the prompt investiga- tion of the substantiality of the alleged claim. The Board therefore held in the General Electric X-ray case that a naked claim to repre- sentation must be followed by a petition within 10 days to prevent a contract signed in the interim from operating as a bar to an election. In the instant case the majority holds for the first time that a Petitioner need make no claim of majority status. It is sufficient, the majority finds, that the Petitioner notify the Employer of an intention to file a petition. • I do not believe that a contract, duly executed by an employer and an incumbent representative of its employees, should be held in abeyance merely because another union indicates that it will file a petition. It seems to me that the least this Board should require for the disruption of a going bargaining relationship is a clear state- ment by the Petitioner that it does, in fact, represent a substantial number of employees, followed by an actual petition, supported by a 30-percent showing of interest, within 10 days. It should be of funda- mental interest to this Board, as I said in my dissenting opinion in the Essex Wire case,7 that "contracts are not nullified without a clear and substantial contest between claimants to majority representation at the time of the execution of the agreement." 7 Essea, Wire Corporation, 102 NLRB 332, at 336. ALLSTATE INSURANCE COMPANY and INSURANCE AGENTS' INTERNA- TIONAL UNION, AFL, PETITIONER . Case No. 'I-RC-2406. July 29, 1954 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 Myron K. Scott, 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 this case, the Board finds : 1. The Employer is engaged in commerce within the meaning of the Act. 2. The labor organization involved claims to represent certain em- ployees of the Employer. i The request of the Employer for oral argument is denied because the record and the briefs clearly set forth the positions of the parties. The Employer's motion to dismiss because the organizing committee of the Petitioner has not complied with Section 9 (f), (g), and (h) of the Act is denied . The organizing committee is an auxiliary arm of the International , established for organizing purposes, and need not comply. Grand Central Aircraft Co., Inc., 106 NLRB 358. 109 NLRB No. 93.