General Dyestuff Corp.

72 DECISIONS OF NATIONAL LABOR RELATIONS BOARD We find, therefore, that the warehouseman, truck drivers, and helpers employed in connection with the Employer's operations at Florence and Sheffield, Alabama, excluding sales clerks, the shipping clerk, repairmen, office and clerical employees, maids, professional employees, guards, and supervisors, constitute a unit appropriate for collective bargaining within the meaning of Section 9 (b) of the Act. [Text of Direction of Election omitted from publication in this volume.] CHAIRMAN HERZOG, dissenting : I question the appropriateness of the warehouse unit found appro- priate by my colleagues, and would therefore dismiss the petition. The Marshall Field precedent (90 NLRB 1) seems to me more perti- nent than the earlier Montgomery Ward cited by the majority. Here the record shows considerable interchange of functions between the employees included and those omitted. Not only do the store em- ployees sometimes assist in the work performed by employees in the unit sought, but also-and more significantly-the latter spend a sub- stantial portion of their own time working in the stores. GENERAL DYESTUFF CORPORATION and UNITED GAS, COKE AND CHEMICAL WORKERS OF AMERICA , CIO, PETITIONER . Case No. 2-RC-4344. July 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 I. L. Broadwin, 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 organizations involved claim to represent certain employees of the Employer. 3. The Employer and the Intervenor, Allied Trades Council, AFL, contend that an existing agreement is a bar to this proceeding. The Intervenor has been recognized as the bargaining representa- tive of the Employer's warehouse employees for a number of years. The most recent agreement covering these employees, dated December 17, 1951, extends, for a 2-year period, the term of a 1-year agreement that expired on December 1, 1951, and also continues in effect all the provisions of the latter contract, with an additional proviso that the 100 NLRB No. 6. GENERAL DYESTUFF CORPORATION 73 Intervenor shall have the right to negotiate with respect to wages and other monetary matters in January 1952 and again on December 1, 1952. The Petitioner asserts that the 1951 agreement is not a bar because (1) it was actually signed sometime after December 20, 1951, the date of the filing of the present petition, instead of on December 17, 1951; (2) the 1951 contract is not a complete agreement; (3) a schism exists within the contracting union; and (4) the present petition was filed during the existence of a question concerning the representation of the warehouse employees that was raised by another petition, pending at that time, filed by another labor organization. The record discloses the following sequence of events : On September 19, 1951, Truck Drivers Local Union No. 807, Inter- national Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, AFL, herein called the Teamsters, through its attorneys, filed a petition with the Board seeking to represent the employees here involved. The Regional Director for the Second Region scheduled a hearing on the Teamsters' petition, but on Decem- ber 7, 1951, advised all parties that the hearing had been postponed indefinitely. At sometime early in December, John E. Strong, president of the Teamsters, advised George Barasch, the Intervenor's president, that the Teamsters would withdraw its petition. And, at sometime between December 15 and 20, Strong informed the em- ployees that the Teamsters could not represent them. On December 20, Strong advised the Board's Regional Office by letter that the Teamsters was withdrawing its petition as of December 10, and that the Intervenor herein had been notified of such withdrawal. On January 2, 1952, the Teamsters' attorney filed a written request to withdraw the petition, and the Regional Director approved the withdrawal on January 7. In the meantime, the employees, having been informed that the Teamsters could not represent them, sought representation by the Petitioner. On December 19, 1951, the Petitioner wrote the Employer requesting recognition as the bargaining representative. The Em- ployer replied, by letter dated December 20, that the Intervenor was still the employees' bargaining agent, and that the Teamsters was petitioning for representation, a hearing on the Teamsters' petition having been scheduled and then postponed. The letter suggested that the Petitioner should "proceed through the regular Board chan- nels." The Petitioner filed its petition in the present case on December 20, 1951, the same day as the Employer's letter. Also early in December, and shortly after Barasch had been in- formed by Strong that the Teamsters would withdraw its petition, Barasch and Steven J. Bladek, the Employer's labor relations con- sultant, agreed by telephone to extend the Intervenor's contract in 74 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the manner described above. Thereafter Barasch and Bladek exe- cuted the agreement, extending the earlier contract, that is here asserted as a bar. Although the agreement is dated December 17, 1951, the date of its actual execution is in dispute. It is clear from the foregoing that the Teamsters' petition raised a timely question concerning representation that was unresolved when the present petition was filed. Assuming, without deciding, that the petition in this case was untimely filed with respect to the December 17, 1951, agreement, it nevertheless will be processed because it was filed during the pendency of the Teamsters' timely petition.' We therefore find that the December 17, 1951, agreement does not consti- tute a bar to this proceeding.2 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. We find, substantially in accord with the agreement of the parties, that the following employees of the Employer constitute a unit ap- propriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act: All warehouse employees employed at the Employer's warehouse located at 435 Hudson Street, New York City, excluding all office and clerical employees, watchmen, guards, professional employees, and all supervisors as defined in the Act. [Text of Direction of Election omitted from publication in this volume.] MEMBER MURDOCK, dissenting : I am unable to agree with the majority decision insofar as it at- tempts to distinguish this case from the Merchants Refrigerating 'Humble Oil d Refining Co., 53 NLRB 116; Monroe Co-Operative Oil Company, 86 NLRB 95. Cf. Merchants Refrigerating Company, 78 NLRB 528; and United States Tame Corpo- ration, 79 NLRB 1135 . This case is distinguishable from both of the latter cases. In the Merchants case, a decertification petition was filed after the automatic renewal date of a subsisting contract, but during the pendency of a timely representation petition. The Board thereafter permitted withdrawal of the representation petition because there were no intervenors whose rights might be prejudiced by such withdrawal , and dismissed the decertification petition for the reason that the decertification petitioners were not pressing for immediate action but were seeking an indefinite delay to enable them to attempt to work out an agreement concerning representation with the contracting union. In United States Time the later, untimely, petition was filed more than 6 months after the earlier timely petition had been dismissed for failure to comply with the filing require- ments of the Act. The Board found that, although the later petitioner had been an inter- venor in the earlier case, it had lacked the showing of interest required of a petitioner, and therefore could not assert the equities of a petitioner with respect to the earlier peti- tions. Here, unlike the Merchants case, the Petitioner is seeking an immediate election to determine the question of representation. Further, unlike the situation in United States Time, the present Petitioner had presented designations in support of its separate petition sufficient to indicate that it possessed substantial equities in any representation proceeding among the Employer's employees as of the time when the earlier petition was pending. 1 In view of this finding, we deem it unnecessary to resolve the other contract bar issues raised by the Petitioner. GENERAL DYESTUFF CORPORATION 75 Company case 3 In attempting to distinguish the two cases the ma- jority assigns as the reason for the dismissal of the decertification petition in the Merchants case the fact that the "decertification peti- tioners were not pressing for immediate action, but were seeking an indefinite delay to enable them to attempt to work out an agreement concerning representation with the contracting union." 4 Although the circumstance adverted to above was one of the reasons the Board permitted the earlier timely filed petition to be withdrawn in the Merchants case, it was not the ground upon which the dismissal of the decertification petition was predicated. The reason for the dis- missal is set forth in the concluding sentence of the Board's rationale as follows : As the withdrawn petition no longer can be said to raise a ques- tion concerning representation, we find that the renewed contract between the Engineers and the Employer now operates as a bar to the petition for decertification filed after the automatic re- newal date. As I read it, the decision in the Merchants case stands for the proposi- tion that an existing contract renewed or entered into after the filing of a rival union petition subsequently withdrawn, operates as a bar to a later petition filed after its execution but before the withdrawal of the earlier petition. Those are exactly the circumstances of this case. The Teamsters filed its petition on September 19. It then de- termined to withdraw its petition and so advised all interested parties, including the Board's Regional Office. On December 17 the Inter- venor and the Employer entered into a renewal agreement. On De- cember 20 the Petitioner .filed the petition herein. Thereafter, on January 7 the Regional Director approved the Teamsters' written request to withdraw its petition. Applying the reasoning of the Mer- chants case, the withdrawn petition no longer raises a question con- cerning representation and therefore the contract between the Intervenor and the Employer constitutes a bar to the Petitioner's petition filed after its execution, unless the contract is removed as a bar for one of the other reasons urged by the Petitioner. Because they disposed of the contract-bar issue on this ground, my colleagues . found it unnecessary to pass upon the other reasons advanced by the Petitioner for holding the contract not a bar. In my opinion the de- cision herein should turn upon the resolution of those issues. MEMBER STYLES took no part in the consideration of the above De- cision and Direction of Election. 178 NLRB 528, 4 See footnote 1, supra.