Parker Brothers and Co., Inc.

PARSER BROTHERS AND CO., INC. 139 recommend wage increases. In addition, the branch stores are widely :separated from the central office, being from 75 to 120 miles away from Duluth. In these circumstances, we find that the unit sought by Local 621, limited to the Ashland store, constitutes- a unit appropriate- for col- lective bargaining. With respect to the unit of seven branch stores proposed by the Employer, it appears from the record that neither union is interested in representing such a unit. Accordingly, we -shall dismiss the petition in Case No. 18-RM-264 and direct an elec- tion at the Ashland store,- as sought in Case No. 18-RC--3343. We -do not accord Retail Clerks a place on the ballot as it indicated it did not desire so to appear. The appropriate unit is : - All employees, including stock and counter men, of the Employer at -its Ashland, Wisconsin, store, excluding managers, office clerical em- ployees, outside salesmen, guards, watchmen, and supervisors as de- fined in the Act. - [The Board dismissed the petition filed in Case No. 18-RM-264.] [Text of Direction of Election omitted from publication.] Parker Brothers and Co., Inc. and John Young Company, Inc. and Seafarers International Union -of North America, Atlantic and Gulf District, Harbor and Inland Waterways Division, AFL-CIO, Petitioner Parker Brothers and Co., Inc., and John Young Company, Inc. and Seafarers International Union of North America, Atlantic and Gulf District, Harbor and Inland Waterways Division, AFL-CIO, and General Drivers, Warehousemen and Helpers Local Union No. 968, AFL-CIO, Joint Petitioners Parker Brothers and Co., Inc. and John Young Company, Inc. and General Drivers, Warehousemen and Helpers, Local Union No. 968, AFL-CIO, Petitioner Parker Brothers and Co., Inc. and General Drivers, Warehouse- men and Helpers, Local Union No. 968, AFL-CIO, Petitioner.' Cases Was. 39-RC-1126, 39 PC-1144, 39-EC-1145, 39-RC-1146, and 39 RC 1147. October 25,1957 DECISION, ORDER, AND DIRECTION OF ELECTION Upon separate petitions duly filed, under Section 9 (c) of the Na- tional- Labor Relations Act, a consolidated hearing was held before 1 The names of the cases appear as amended at the -hearing. 119 NLRB No. 20. 140 DECISIONS Or NATIONAL LABOR RELATIONS BOARD Wilton Waldrop, hearing officer. 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 Rodgers, Bean, and Jenkins]. Upon the entire record in this case the Board finds : 1. The Employers are engaged in commerce within the meaning of the National Labor Relations Act .3 2. The labor organizations involved claim to represent employees of the Employers.4 3. A question affecting commerce concerning the representation of employees within the meaning of Section 9 (c) (1) and Section 2 (6) and (7) of the Act exists in Case No. 39-RC-1147. For the reasons stated below, we find that no question affecting commerce concerning the representation of employees within the meaning of Section 9 (c) (1) and Section 2 (6) and (7) of the Act exists in Cases Nos. 39-RC- 1126,1144,1145, and 1146. Parker produces and sells oystershell, sand, gravel, cement, and ready mix concrete, and also operates a shipyard. On January 25, 1957, the SIU filed a petition for a unit of all employees working on tugboats operated by Parker and Young (Case No. 39-RC-1126).' On February 8, 1957, the General Drivers filed a petition for a unit of all of Parker's nonsupervisory employees, excluding tugboat em- ployees and shipyard employees (Case No. 39-RC-1142).6 This peti- tion was withdrawn during the hearing in Case No. 39-RC-1126, and on the following day petitions were filed by the SIU and the General Drivers jointly for a unit of all employees of Parker and employees of Young working on tugboats operated by Parker, excluding shipyard employees and others (Case No. 39-RC-1144) ; I by the General 2 For the reasons set forth in Cleveland Cliffs Iron Company, 117 NLRB 668, footnote 1.. we reject the contention of the Employer and the Intervenor that the Regional Director had no power under the Board's Rules and Regulations to consolidate these cases for purposes of a hearing. 3In so finding we rely not only on the record in the instant proceeding, but also on. pages 11 to 15 of the transcript in Parker Brothers & Company, Inc., Case No. 39-RC-1106, of which we hereby take official notice. As to the relevant operations of Young, see footnote 12, infra. 4 Shellworkers Independent Union intervened in these proceedings on the basis of a current contract with Parker. 5 Excluded were all other employees , guards, and supervisors as defined in the Act. Lake Charles Dredging and Towing Co., Inc., was named in the original petition as an employer, but its name was stricken by amendment during the hearing. 6 The shipyard employees excluded from the proposed unit were being sought by the International Brotherhood of Boilermakers, Iron Shipbuilders , Blacksmiths , Forgers and Helpers of America, AFL-CIO, herein called the Boilermakers , in Case No . 39-RC-1106. The Board has since held this unit to be inappropriate . Parker Brothers 4 Company, Inc., 117 NLRB 1462. However, the Board has found appropriate a unit limited to the welders and burners in the shipyard . Parker Brothers & Company, Inc., 118 NLRB 1329. 7 Also excluded were office clerical employees , professional employees , guards, and super- visors as defined in the Act. The unit here described is that sought in the petition ae PARKER BROTHERS AND CO., INC. 141 Drivers for a unit of all truckdrivers employed by Parker and all truckdrivers employed by Young (Case No. 39-RC-1145) ; 8 by the General Drivers for a unit of all nonsupervisory employees of Parker, excluding shipyard employees, tugboat employees, and others (Case 39-RC-1146) ; 9 and by the General Drivers for a unit of truckdrivers employed by Parker (Case No. 39-RC-1147).10 Pursuant to a Board certification," for several years Parker and the Intervenor have been operating under a collective-bargaining .agreement covering all of Parker's employees. A contract executed on December 22, 1954, by its terms continued in effect until January 31, 1957. Its automatic renewal was forestalled by due notice, but on March 13, 1957, before the filing of any of the petitions pending herein except that filed by the SIU in Case No. 39-RC-1126, the parties signed a new agreement covering the same unit and containing no provision for termination before February 1, 1959. The Employer and the Intervenor contend that this contract bars all the petitions filed after its execution. Petitioners assert that the contract is not .a bar because it was executed after the SIU filed its petition in Case No. 39-RC-1126, seeking to sever a unit of tugboat employees, and after the Boilermakers filed its petition in Case No. 39-RC-1106, seeking to sever a unit of shipyard employees.12 However since the unit sought in Case No. 39-RC-1144, consisting of all employees ex- .cept shipyard employees, is larger than and substantially different from those sought in the two petitions which were filed before the contract was signed and were pending at the close of the hearing, the pendency of such petitions did not remove the contract as a bar to the petition in Case No. 39-RC-1144." .amended at the hearing. Lake Charles Dredging and Towing Co., Inc ., was named in the original petition as an employer , but its name was stricken by amendment during the hearing. 8 The unit here described is that sought in the petition as amended at the hearing. The SIU, which had joined in the original petition , withdrew therefrom at the hearing. 9 Also excluded were office clerical employees , guards, and supervisors as defined in the Act, l0 The unit here described is that sought in the petition as amended at the hearing. .Excluded were supervisors as defined in the Act and all other employees. " See Parker Brothers & Company, Inc., 110 NLRB 84. ' See footnote 6, supra . Since it was stipulated that Parker and Young constitute a single employer for purposes of their maritime operations , and since no contention is made that the validity of the agreement for contract-bar purposes is affected by the fact that the agreement covers only Parker's employees and is signed by Parker only, we find that these omissions are immaterial for contract -bar purposes. See also The Murray Company of Texas, Inc., 107 NLRB 1571, 1572, 1573. " Polk Brothers Central Appliance and Furniture Company , 105 NLRB 251, 2,52-253; Worthington Pump and Machinery Corporation, 99 NLRB 189 , 192; American Suppliers, Incorporated, 98 NLRB 692 , 695; Pasco Packing Co ., 106 NLRB 1223. The Petitioners further assert that the contract is not a bar because it was allegedly not ratified in accordance with the Intervenor's constitution. The contract, whose terns are now being carried out, is signed by the Intervenor's negotiating committee and does not refer to any ratification by the membership of the Intervenor . Under such circumstances the Board will find the contract to be a bar without going behind it and thus injecting itself into a union's internal affairs. Phelps Dodge Refining Corporation, 112 NLRB 1209 , 1212. We 142 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Similarly, because when the petitions were filed in Cases Nos. 39- RC-1145, 1146, and 1147 no petition was pending involving the em- ployees sought therein and filed before the contract was signed, absent other factors the contract would bar these petitions." However, the General Drivers contends that in any event the contract should not bar them, on the ground that they involve employees which it sought in the petition in Case No. 39-RC-1142, filed before the contract was executed, but withdrawn during the hearing. The General Drivers asserts that it withdrew this petition in reliance on the hearing officer's action in permitting it to intervene in Case No. 39-RC-1126, which ruling he later reversed on the ground that the General Drivers was seeking an entirely different unit from that sought in Case No. 39- RC-1126. We agree with the General Drivers that under these. circumstances the contract should not deprive it of any rights which it may have acquired by filing its petition in Case No. 39-RC-1142 before the contract was executed.15 Since the petition in Case No. 39-RC-1146 seeks the same unit as that sought in the withdrawn petition, we shall treat the petitions filed in Cases Nos. 39-RC-1145,. 1146, and 1147 as if the petition in Case No. 39-RC-1146 had been filed before the execution of the contract. In Case No. 39-RC-1145, the General Drivers seeks a unit of truck- drivers employed by Parker and Young. As all but one of these employees were included in the unit sought in the petition in Case No. 39-RC-1146, which we are treating as though filed before the contract was executed, the contract does not bar the petition in Case- No. 39-RC-1145.18 However, since the stipulation that Parker and Young are to be considered a single employer extends only to their maritime operations, since the single Young truckdriver drives a ce- ment truck and is therefore not a maritime worker, and since there is no evidence in the record that he has any interests in common with Parker's truckdrivers, we shall dismiss the petition in Case No. 39-RC- 1145 on the ground that it seeks an inappropriate unit. In Case No. 39-RC-1146, the General Drivers seeks the unit covered by the contract, but excluding the unit of tugboatmen sought by the SIU in Case No. 39-RC-1126, which unit we find to be inappropriate in a subsequent portion of this decision, and also excluding the unit of shipyard employees sought by the Boilermakers in Case No. 39- accordingly affirm the hearing officer 's refusal to compel the production of the Intervenor's membership lists, the ballots cast by its members on the ratification issue, and the minutes of a previous meeting in which its members allegedly rejected the contract. 14 Pasco Packing Co., 106 NLRB 1223. 15 See Coastal Drydock & Repair Corp., 107 NLRB 1023 , 1025. We do not wish to sug- gest, in relying on this case , that the hearing officer's rejection of the General Drivers' motion to intervene was in any way improper. See Marion Manufacturing Company, 101 NLRB 256 , footnote 4. 16 Westinghouse Electric Corp ., 115 NLRB 1420, 1421 ; The Rauland Corporation, 97 NLRB 1333, 1334. PARKER BROTHERS AND CO., INC. 143 RC-1106, which unit we found to be inappropriate after the close of the hearing in the cases at bar." There is no evidence suggesting,. and the General Drivers does not appear to contend, that the unit sought in Case No. 39-RC-1146 is appropriate notwithstanding our determination that separate units of tugboatmen and of shipyard employees are inappropriate. We shall therefore dismiss the petition in Case No. 39-RC-1146 on the ground that the unit sought therein is inappropriate. In its petition in Case No. 39-RC-1126, filed before the contract was executed, the SIU seeks to represent a unit of all employees working on tugboats operated by Parker and Young. The Employer and the Intervenor contend that the proposed unit is inappropriate. The tugboats move and supply Parker's shell and gravel dredges, operating in Galveston Bay and the San Jacinto River, and also tow the barges loaded with this shell and gravel from the dredges to various other locations. All of the tugboat crews include a captain, deckhands, and either engineers or oilers; some also include a relief captain, 1 or 2 mates, a cook, and a combination dayman and relief cook. These individuals perform the functions indicated by their respective job classifications. The tugboat crews and the dredge crews together form Parker's marine division, under the overall supervision of the marine superin- tendent. The amount of personal contact between the tugboat crews and the dredge crews is comparable to that between the different tugboat crews. The tugboat crews also have some contact with the shore-based employees. Seniority is on a departmental basis, the marine division constituting a separate department under the con- tract, but there is some interchange, both temporary and permanent, between departments, and service in any department is credited toward an employee's seniority in his own department. Parker's officials exercise general supervision over all operations, including labor policy, and all employment and payroll records are kept in its main office. All employees receive the same insurance benefits and comparable vacation benefits, but only the shore-based employees have paid holidays." The SIU contends that the unit which it seeks is "either a craft unit or a `functionally distinct' department of employees `identified with traditional trades,' " and therefore meets the severance standards formulated by the Board in American Potash cf Chemical Corpora- tion, 107 NLRB 1418. The record fails to support this contention. The tugboatmen are plainly not a craft within the meaning of American Potash, since many of them require only 5 or 6 months' 17 See footnote 6, supra. is Some of the statements in the paragraph above may not apply to Young's employees. 144 DECISIONS OF NATIONAL LABOR RELATIONS BOARD training. Nor do they constitute a traditional department within the meaning of that case. As we pointed out in American Potash, 107 NLRB at 1424, "the Board does not propose to allow petitioners seeking severance to use this concept as a basis for establishing extent- of-organization units or for fragmentizing plant-wide units into departments wherever craft severance cannot be established." We shall therefore dismiss the SIU's petition in Case No. 39-RC-1126 on the ground that it seeks an inappropriate unit.19 In Case No. 39-RC-1147, the General Drivers seeks to sever a unit of Parker's truckdrivers from the existing companywide unit. Since all of these employees were included in the unit sought in the petition in Case No. 39-RC-1146, for the reasons set out in connection with Case No. 39-RC-1145, this petition is not barred by the contract. Parker employs about 50 mixer- and dump-truck drivers, about 5 drivers who haul gravel from Parker's gravel pit to its plant about three-quarters of a mile away and who are paid 27 cents an hour less than the mixer- and dump-truck drivers, and 1 driver who drives a truck which brings supplies and crew members to the tugboats and who has limited contact with the mixer- and dump-truck drivers. The mixer- and dump-truck drivers and the gravel-truck drivers do only trucking work and the former have little contact with other employees. The General Drivers prefers a unit limited to the 50 mixer- and dump-truck drivers, but is willing to represent a unit also including others. The General Drivers is a union which has historically represented truckdrivers, and Parker's truckdrivers constitute a functionally dis- tinct group, such as the Board has traditionally accorded the right of self-determination despite a history of bargaining on a broader basis and despite their lack of true craft skill. Accordingly, we find that Parker's mixer- and dump-truck drivers, gravel-truck drivers, and crew drivers may, if they so desire, constitute a separate appro- priate unit.20 We shall direct an election among such truckdrivers, excluding all other employees and supervisors as defined in the Act. If a majority vote for the General Drivers they will be taken to have indicated their desire to constitute a separate appropriate unit, and the Regional Director conducting the election directed herein is instructed to issue a certification of representatives to the General Drivers for the unit described in paragraph numbered 4, which the Board, under such 1° The Petitioners assert that, together with the Boilermakers , they are willing jointly to represent a companywide unit. The Boilermakers is not a party to this proceeding. Even if this request is taken as a valid amendment to a timely petition , it is nevertheless barred by the contract, since it seeks a unit larger than and substantially different from that sought in any timely petition. See cases cited in footnote 13, supra. 20 Graver Construction Company, 118 NLRB 1050 ; Tennessee Egg Company, 110 NLRB 189, 190-191 ; Swift & Company, 117 NLRB 61. HOPE WEBBING COMPANY, INC. 145 circumstances, finds to be appropriate for the purposes of collective bargaining. In the event a majority do not vote for the General Drivers, the Board finds the existing unit to be appropriate and the Regional Director will issue a certification of results of election to such effect. [The Board dismissed the petitions in Cases Nos. 39-RC-1126, 39-RC-1144, 39-RC-1145, and 39-RC-1146.] [Text of Direction of Election omitted from publication.] Hope Webbing Company, Inc. and United Textile Workers of America, AFL-CIO, Petitioner. Case No. 1-RC-4981. October 95, 1957 DECISION AND DIRECTION OF ELECTIONS Upon a petition duly filed under Section 9 (c) of the National Labor Relations Act, a hearing was held before Thomas E. Mc- Donald, hearing officer. 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 Murdock, Rodgers, and Bean]. 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 named below claim to represent certain employees of the Employer. 3. The Employer urges as a bar a 1-year contract executed June 20, 1956, between its predecessor and Narrow Fabric Workers' Union, which contract provides that in the absence of notice to negotiate at least 30 but not more than 60 days before expiration, it is to be "auto- matically renewed and continued without change." No such notice was given. The petition was filed June 12, 1957. By contrast the 1950 contract provided that it was to be "automatically renewed and continued without change other than that of the expiration date for an extended period of one year from December 31, 1951, to December 31, 1952." We find that the 1956 contract was automatically renewed for an indefinite period. As the existing contract has become one of indefinite duration following a fixed term, it does not bar a representa- tion proceeding.. See New Jersey Porcelain Company, 110 NLRB 790, 791. 119 NLRB No. 24. 476321-58-vol. 119-11