Swift and Co.

ST. LOUIS INDEPENDENT PACKING COMPANY 887 B. All unlicensed employees employed by Blaske, Inc., including deckhands, tankermen, oilers, strikers, cooks, maids, messboys, util- ity men, and firemen. C. All unlicensed employees employed by Commercial Transport Corporation , including deckhands, tankermen, oilers, strikers , cooks, maids, messboys , utility men, and firemen. If a majority of the employees in each voting group vote for the Petitioner, the employees will be taken to have indicated their de- sire to constitute a single combined unit. In that event the Re- gional Director is instructed to issue a certification of representa- tives to the Petitioner for such unit which the Board , under such circumstances, finds to be appropriate for purposes of collective bargaining. If a majority of employees in each voting group do not vote for the Petitioner, they will be deemed to have indicated their desire to constitute separate units and the Board finds the group or groups in which the Petitioner receives a majority of the votes to be a separate unit or units appropriate for the purposes of collec- tive bargaining. The Regional Director shall issue a certification of representatives to the Petitioner for each unit in which it has been selected as bargaining representative , and a certification of results in each unit in which it has not been so selected.7 [Text of Direction of Elections omitted from publication.] 7 The Petitioner has made a sufficient showing of interest in voting group C to justify holding an election in that group. If it does not desire an election in either that voting group or any other voting group, it may notify the Regional Director to that effect within 10 days of the date of this Decision and Direction of Elections. St. Louis Independent Packing Company, a Division of Swift and Company and Amalgamated Meat Cutters and Butcher Workmen of North America, Local 66, AFL-CIO, Petitioner. Case No. 14-RC-3355. January 9, 1959 SUPPLEMENTAL DECISION AND DIRECTION Pursuant to a Board Decision and Direction of Election,' an election by secret ballot was conducted on November 5, 1958, un- der the direction and supervision of the Regional Director for the Fourteenth Region of the National Labor Relations Board, among the employees in the unit therein found appropriate. Following the election, the parties were furnished a tally of ballots which showed that of approximately 31 eligible voters, 31 cast ballots, and all 31 ballots were challenged. I Unpublished. 122 NLRB No. 110. 888 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The challenged ballots were sufficient in number to affect the results of the election. The Regional Director, after investigation, issued his report on challenged ballots on November 18, 1958, in which he recommended that the challenges be overruled and the ballots be opened and counted. The Employer and National Broth- erhood of Packinghouse Workers, Intervenor, .filed timely exceptions to the Regional Director's report, in which they request the Board to sustain the challenges. 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 Leedom and Members Bean and Fanning]. The Employer challenged all ballots cast in the election on the ground that the Board's Decision and Direction of Election was invalid because the Employer's 3-year contract with the Intervenor constituted a bar to an election. The contract-bar contention was previously considered by the Board in its Decision and Direction of Election, issued on October 6, 1958, in which the Board found that the contract was not a bar because it was of unreasonable dura- tion and had been in effect for over 2 years.2 The Board's decision there followed the rule adopted in Pacific Coast Association of Pulp and Paper Manufacturers, 121 NLRB 990, which was one of sev- eral decisions issued on or about September 23, 1958, adopting cer- tain revisions in the Board's rules pertaining to contract bar. After the Board directed the election herein, the Employer and Inter- venor filed motions for reconsideration, contending that the Pacific Coast rule should not have been applied to cases, like the instant one, which were pending at the time that decision was issued;' but if it was applied, then the petition herein should have been dis- missed as premature under another rule, adopted in the same Pacific Coast decision, purportedly requiring dismissal of all petitions filed more than 150 days before the end of the first 2 years of the con- tract term. Although the Board denied the motions for reconsid- eration, these same contentions formed the basis for the Employer's challenge of all the ballots cast in the election, and of the Em- ployer's and Intervenor's exceptions to the Regional Director's recommendation that the challenges be overruled. The Board considered the applicability of its revised contract-bar rules in Deluxe Metal Furniture Company, 121 NLRB 995, referred to in Pacific Coast, and issued the same day. Denying the request 2 The contract was effective from September 24, 1956, to September 1, 1959 ; the petition herein was filed on March 11, 1958. 8 The Employer and Intervenor contended that the prior existing rule, under which a contract of over a 2-year duration was considered a bar if it was shown that a substantial part of the Employer's industry was covered by such contracts , should have been applied to the instant case. ST. LOUIS INDEPENDENT PACKING COMPANY 889 of the petitioner in that case that such rules be applied in futuro only, the Board stated : [I]n establishing revisions of precedent there is always the like- lihood that such revisions will bring about a different result in some pending proceeding than would have obtained under a prior policy or procedure. This is true not only of the case in which such revisions are first announced and-applied, but also with respect to any other case which has not yet been decided, because it has not reached the Board's level or is at one of the other stages of the administrative process such as the hearing. Thus, to adopt these revisions of contract-bar policy and then allow the instant proceeding as an exception without permitting a similar exception to all pending cases would be inequitable. To establish an in futuro rule for all pending cases would cre- ate an administrative monstrosity. The judicial practice of applying each pronouncement of a rule of law to the case in which the issue arises and to all pending cases in whatever stage is traditional and, we believe, the wiser course to follow. Ac- cordingly, we deny the Petitioner's request that any revised policy not be applied to the instant case. Accordingly, as the instant proceeding was pending before the Board at the time the Pacific Coast rule was adopted, and no valid reason appears for making an exception to the Board's determination in Deluxe Metal that the revised rules would be applied to all pending cases, we adhere to the Board's decision that the contract herein is not a bar because it was of unreasonable duration and had been in effect for over 2 years. The revised rule on prematurely filed petitions, as briefly stated in Pacific Coast and more fully explained in Deluxe Metal, is not applicable to the facts of the instant case. Thus, as set forth in those decisions, the rule, where pertinent here, provides that a peti- tion filed more than 150 days before the end of the first 2 years of the contract term will be regarded as premature and will be dis- missed unless a hearing is directed despite the prematurity of the pe- tition, and the Board's decision issues on or after the 90th day pre- ceding the end of the first 2 years of the contract. The hearing had been directed and held in the instant case, and the Board's decision issued after the 90th day preceding the end of the 2-year period. The petition herein therefore clearly fell within the exception to the rule requiring dismissal of prematurely filed petitions 4 In setting forth the conditions under which hearings would be held on otherwise premature petitions, the Board was referring to future cases and not to those , like the instant case, where hearings had already been held. 890 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The names of all employees whose ballots were challenged were included on the list submitted by the Employer and checked and approved by both the Intervenor and the Petitioner prior to the election. We agree with the conclusion of the Regional Director, therefore, that the parties were in agreement that the challenged individuals were eligible to vote, except for the contentions dis- cussed above, which we have found to be without merit. Under these circumstances, we adopt the Regional Director's recommenda- tion that the challenges be overruled, and we shall direct that the ballots be opened and counted. [The Board directed that the Regional Director for the Fourteenth Region shall, within ten (10) days from the date of this Direction, open and count the 31 challenged ballots, and serve upon the parties a supplemental tally of ballots.] ' Charles J. Kaye, Saima Kaye, David J. Kaye, and. Joan K. Engberg, d/b/a Arrow Press and Local 7, Amalgamated Lithographers of America, Charging Party. Case No. 13-CA- 2771. January 1 °2, 1959, DECISION AND ORDER On October 6, 1958, Trial Examiner Samuel Ross issued his Inter- mediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain,unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy.. of the Inter- mediate Report attached hereto. Thereafter, the Respondent filed exceptions to the Intermediate Report, together with a. supporting brief. Pursuant to the provisions of :Section 3(b) of the National Labor Relations act, as amended, the Board has delegated its powers in connection with. this case to a three-member panel [Chairman Leedom and Members Bean and Fanning]. The Board has reviewed the rulings made by the Trial Examiner at the hearing. and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Intermediate Report, the exceptions and brief, and the entire record in the case, and hereby adopts the findings, conclusions, and recom- mendations of the- Trial Examiner. ORDER Upon the entire record in the case, and pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor 122 NLRB No. 101.