The Great Atlantic & Pacific Tea Co.

252 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Great Atlantic & Pacific Tea Company and Bakery and Confectionery Workers, International Union of America,' Peti- tioner. Case No. 5-RC-2816. November 20, 1959 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 Robert W. Knadler,. hearing officer. The hearing officer's rulings at the hearing are free from prejudicial error and are hereby affirmed. Upon the entire record, 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. A question affecting commerce exists concerning the representa- tion of certain employees of the Employer within Section 9(c) (1). and Section 2(6) and (7) of the Act. The instant petition was filed on June 15, 1959, seeking an election in the unit currently being represented by ABC. ABC, which had been certified on June 13, 1958, as representative of the employees herein, moved to dismiss the petition. Although the certification year had expired when the petition was filed, and the certification would therefore normally no longer bar the petition, ABC contends that, because of certain unusual circumstances set forth below, its certification should be treated as a bar to the petition notwithstand- ing the expiration of the certification year.' BCW contends that there is insufficient basis here for any extension beyond June 13, 1959, of the certification bar rule. The Employer takes no position. The pertinent facts are as follows. On July 27,1957, the Employer and BCW entered into a collective-bargaining agreement effective until April 4, 1959. Subsequently, ABC filed a representation peti- tion and ABC and BCW agreed to a consent election which was held on June 5, 1958. ABC was certified by the Board on June 13, 1958, and pursuant to its precertification agreement with the Em- Hereinafter referred to as BCW. 2 The American Bakery and Confectionery Workers, International Union, Local Union, No. 68, AFL-CIO, herein referred to as ABC, was allowed to intervene at the hearing on the ground that it had a collective-bargaining agreement with the Employer which was in effect on April 4, 1959, and which may have remained in effect after that date. 3In addition to its certification bar contention discussed in the text, ABC at the hear- ing contended that it has a current contract with the Employer which bars the petition. This contention was not renewed in ABC's brief filed with the Board , and may therefore be deemed to have been abandoned . In any event, as the contract was merely an in- definite, interim extension of the parties ' prior contract, it is clearly not a bar. Paoifio' Coast Association of Pulp and Paper Manufacturers, 121 NLRB 990. 125 NLRB No. 36. THE GREAT ATLANTIC & PACIFIC TEA COMPANY 253 I I ployer, it assumed the contract which had been entered into by the Employer and BCW. On January 16, 1959, ABC gave the Employer timely notice that it wished to terminate the existing agreement. Thereafter, on Janu- ary 30, 1959, BCW filed a representation petition. In support of its petition, BCW argued that although less than a year had elapsed since ABC's certification, under the Ludlow rule,4 the contract and certification years had merged and, as its petition was timely with re- spect to the termination date of the contract, April 4, 1959, the peti- tion should be entertained. The Board, on April 30, 1959, rejected BCW's contentions and dismissed the petition .5 Meanwhile, the Employer refused to negotiate with ABC for a new contract while BCW's petition was still pending. Negotiations between ABC and the Employer were finally commenced on May 20, 1959, after the dismissal of BCW's earlier petition, and on May 21 the Employer made an offer to ABC which was rejected by the em- ployees in the unit in a secret ballot. A modified proposal was made by the Employer on June 11, but this too was rejected by the em- ployees. On June 13, 1959, the certification year expired and the petition in the instant case was filed on June 15, 1959. ABC argues that, in view of the Board's decision in Shea Chemi- cals the Employer was justified in refusing to negotiate with ABC during the 3-month period that the BCW petition was pending, and ABC should therefore be given a corresponding additional period, free from rival petitions, to negotiate a contract. In support of its contention, ABC cited the Board's Allis-Chalmers rule,' adopted in 1943, which, in effect, provided for tacking on to the 1-year period during which a certification normally operated as a bar, the time consumed in the processing by the National War Labor Board of a * In Ludlow Typo graph Company, 108 NLRB 1463, the Board held that where an em- ployer and a certified union enter into a contract within the certification year, the con- tract becomes controlling with respect to the timeliness of the filing of a rival petition. e The Great Atlantic and Pacific Tea Company, 123 NLRB 1005. The Board there held that the Ludlow rule was applicable only where the union negotiates a new contract and not where the certified union after certification assumes an existing contract pursuant to a preelection commitment. Pursuant to the agreement of the parties, the record and -exhibits in that case were incorporated by reference into the present record. e In Shea Chemical Corporation ( September 25, 1958 ), 121 NLRB 1027, the Board overruled the Gibson exception to the Midwest Piping doctrine (William D . Gibson Co., Division of Associated Spring Corporation , 110 NLRB 660; Midwest Piping & Supply Co., Inc., 63 NLRB 1060 ) and held that "upon presentation of a rival or conflicting claim which raises a real question concerning representation , an employer may not go so far as to bargain collectively with the incumbent (or any other) union unless and until the question concerning representation has been settled by the Board." The Board added, "We wish to make it clear that the Midwest Piping doctrine does not apply in situations where, because of contract bar or certification year or inappropriate unit or any other established reason, the rival claim and petition does not raise a -real representation question." 7 Allis-Chalmers Manufacturing Company, 50 NLRB 306. 254 DECISIONS OF NATIONAL LABOR RELATIONS BOARD case submitted to it involving a dispute between the certified union and an employer over contract terms. BCW contends that the Allis- Chalmers doctrine is not applicable here. We agree. In Allis-Chalmers, the Board made it clear that it was creating an exception to the 1-year certification rule so as not to penalize unions for delays resulting from their voluntary submission of disputes to the War Labor Board. A contrary rule, the Board held, would have the undesirable effect of discouraging labor organi- zations from utilizing these special procedures. The Board has held that the Allis-Chalmers rule should be limited to the particular war- time situation in which it originated and had refused to extend the exception to the 1-year certification rule to other situations.' 4. We find, in accord with the stipulation of the parties, that the following employees of the Employer constitute a unit appropriate for purposes of collective bargaining within the meaning of Section 9(b) of the Act: I All employees employed' at the Employer's Baltimore, Maryland, bakery, including bakery porters, but excluding office clerical em- ployees, maintenance employees, truckdrivers, deliverymen, ware- house employees; watchmen, guards, and professional and supervisory employees as defined in the Act. [Text of Direction of Election omitted from publication.] MEMBER BEAN, dissenting : I do not agree with the majority's decision. A certified union is normally entitled to 1 year from the date of certification in which to reach an agreement with an employer. When ABC won a consent election and was certified on June 13, 1958, it as- sumed unchanged the collective-bargaining agreement negotiated by its predecessor, BCW. When this contract was about to terminate ABC gave timely notice of its desire to negotiate a new collective- bargaining contract. But before any negotiating meeting could be held BCW filed its first representation petition. The Regional Direc- tor thought there was sufficient merit'in the petition to direct a hearing thereon. Approximately 3 months after the filing of the petition the Board issued its decision dismissing the petition. Meanwhile, during the pendency of the BCW petition, the Employer rightfully refused to bargain with ABC.10 Less than 2 months after the Board issued 8 The Daily Press, Incorporated, 112 NLRB 1434. See also, Tung-Sol Electric, Inc., et at., 120 NLRB 1674. 'This is the unit for which ABC was recognized as the bargaining representative under the earlier contract. 10 ". . . during the certification year an employer, who believes in good faith that unusual circumstances have arisen which require a redetermination of representatives, may raise this issue by filing a petition with the Board. But until the Board has ad- THE GREAT ATLANTIC & PACIFIC TEA COMPANY 255 its decision on the BCW petition, the certification year expired and was followed almost immediately by the filing of the second BCW petition which again resulted in the suspension of negotiations. Dur- ing this short intervening period, ABC and the Employer were un- able to reach agreement on a new collective-bargaining contract. In other words, ABC in reality had less than 2 months of the certifica- tion year in which to negotiate a new contract. In view of these special circumstances, it seems to me that ABC has realistically not had a reasonable time subsequent to its certifica- tion for negotiating a bargaining contract of its own. Part of the delay was occasioned by the assumption of the contract of its rival, a very desirable and perhaps compulsory requirement. The remain- ing delay was caused by the necessary time lapse between the filing of the BCW petition and the issuance of the Board's decision. In these circumstances, it seems only fair to me to add to ABC's certifica- tion year some reasonable time, equivalent to time- required by the Board to dispose of BCW's petition, to enable ABC to reach an agree- ment with the Employer if it can. This would be by analogy to the Allis-Chalmers doctrine. I recognize that Allis-Chalmers was neces- sitated by special circumstances during the war. But the policy or reasons behind that doctrine seem to me to be equally applicable to the special circumstances of this case. Every rule admits of excep- tions. This is a case which calls for such exception.ll MEMBER JENKINS took no part in the consideration of the above Decision and Direction of Election. ministratively decided that the circumstances warrant a formal investigation, and ,has issued a notice of hearing on the petition, the employer's,duty to meet and confer in good faith with the union continues . If and when notice of hearing issues , the employer may with propriety at such time suspend bargaining pending determination of the question concerning representation . The same rule would apply where a rival union files a petition during the certification year. The employer may with propriety suspend bargaining if and when a notice of hearing issues and not before ." Henry Heide, Inc., 107 NLRB 1160, 1163, enfd. 219 F. 2d 46 (C.A. 2). I do not understand the purpose of the second quotation from the Shea Chemical case, in footnote 6 of the majority decision. It seems to imply that the Employer was not justified in refusing to bargain with ABC during the pendency of the BCW petition be- cause the Board ultimately held that this petition did not raise a "real representation question." The quotation from the Heide case, supra, negatives any such implication. Nor do I understand that Shea Chemical was intended to overrule Heide. "I do not regard the Daily Press case (112 NLRB 1434) cited by the majority as necessarily dispositive of the present case . The facts in the two cases are distinguishable in important respects . Thus in Daily Press, the rival petition sought to represent em- ployees who were not in the unit for which the employer refused to bargain , the second refusal to bargain did not occur until after the expiration of the certification year, and the certified union did not rely on any argument that the employer was justified in refus- ing to bargain during the periods in question . Moreover, in Daily Press an informal settlement agreement of the certified union's 8(a) (5) charges had been reached and ,the Board held that reasonable time had been given the employer and the union thereafter to reach an agreement . There was, therefore, considerably less equitable reason than in this case for applying a modern version of Allis-Chalmers to ,the facts of the Daily Press case.