Franz Food Products of Green Forest, Inc.

340 DECISIONS OF NATIONAL LABOR RELATIONS BOARD negotiations were carried on in October for the latest contract, no discussion of the inclusion of programers was had. The motion herein was filed after the contract was signed. Although the contract describes the unit as "all employees ," with specific exclusions, and the office clerical employees are not listed among the exclusions, it appears from the record that not all office clerical employees have been included in practice. The most important example is the exclu- sion of the employees who "programed" on the IBM 650 computer machine. As the employees who formerly did the job, which the programers now do, were excluded from the unit, we find that a motion for clari- fication is not the proper method for adding the classification of programers to the existing unit.' In view of the above findings, we shall deny Local 175's irotion. [The Board denied the motion.] MEMBERS LEEDOir and BROWN took no part in the consideration of the above Order Denying Motion. ' Cf. Remington Rand Division of Sperry Band Corporation , 132 NLRB 1093. Franz Food Products of Green Forest, Inc . and Food Handlers, Local 425, Amalgamated Meat Cutters and Butcher Workmen of North America, AFL-CIO, Petitioner. Case No. 26-RZtI-129. May 25, 1962, DECISION ON REVIEW AND ORDER On December 27,1961, the Acting Regional Director for the Twenty- sixth Region, John E. Cienki, issued a Decision and Direction of Elec- tion in this proceeding. Thereafter, the Union, in accordance with Section 102.67 of the Board's Rules and Regulations, as amended, filed a timely request for review of such decision on the ground, inter alia, that the petition should be dismissed as no. question of representation exists in view of the Union's unequivocal disclaimer at the hearing herein. The Board by telegraphic order, dated January 24, 1962, granted the request for review solely with respect to the policy on disclaimer and stayed the election pending its decision. Thereafter, the Union filed a brief limited to review of Board policy on disclaimer. The Acting Regional Director directed an election in the unit for which the Union was certified on September 6,1960, rejecting its claim at the hearing not to represent any of the current employees in the unit as inconsistent with its pressing an appeal from his dismissal of a 137 NLRB No. 35. FRANZ FOOD PRODUCTS OF GREEN FOREST, INC. 341 charge alleging 8 (a) (1) and (5) on and beyond the date of the hear- ing. As authority supporting this finding, the Acting Regional Direc- tor cited Humko, A Division of National Dairy Products Corporation, 123 NLRB 310. In that case, a majority of the Board (Members Fanning and Jenkins dissenting) held that "in pressing the appeal on and beyond the date of the hearing, the Union was necessarily seeking as a prospective matter a Board affirmative order against the Em- ployer that it bargain with the Union" and rejected its disclaimer "as equivocal and plainly inconsistent with its concurrent conduct in seek- ing a bargaining order." The Board has reconsidered the holding of the Humnko case, and is now of the opinion that there is no necessary inconsistency between the Union's attempt to secure further action on its 8 (a) (5) charge and its disclaimer of a present status as majority representative of the employees. Section 9(c) (1) authorizes the Board to proceed to an election only when it finds that a question of representation presently exists. Such a situation occurs only when there is a present claim of representation by the union. On the other hand, an 8 (a) (5) allegation is based on the contention that the union represented a majority in the past, i.e., at the time it requested recognition and the employer unlawfully refused to bargain with it. The finding of a violation of Section 8(a) (5) does not require a showing of majority status at the time of the Board's order. In fact, it necessarily requires an implicit conclusion that no valid question of representation exists. Further, it is well established that a prospective order requiring that the employer recognize and bargain with the union may be issued notwithstanding that the union in fact does not represent a majority at the time of the order where such loss of majority is the result of the employer's mis- conduct.' Where, as here, the Union admits that it has no present majority, there is no true question concerning representation. Under these circumstances, there is no warrant for the needless expenditure of Board time, energy, personnel, or funds which could be directed elsewhere better to discharge Board responsibilities than in conducting an unnecessary election. Moreover, the mere holding of such an elec- tion would operate unfairly to deprive employees of the opportunity of choosing a reprsentative in a Board-conducted election for a period of 12 months thereafter.' Accordingly, for all the above reasons, we hereby overrule the de- cision in the Humko case to the extent it is inconsistent herewith. 1 E g, Ray Brooks v. N.L.R.B, 348 U S 96, affg. 204 F. 2d 899, Joy Silk Mills. Inc v. N.L R B , 185 F 2d 732 (CAD C ), cert. denied 341 U S 914; N L.R.B. v Philamon Laboratories, Inc, 298 F 2d 176 (CA. 2), enfg. 131 NLRB 80. 2 Section 9(c) (3) provides in part that "No election shall be directed in any bargaining unit or any subdivision within which, in the preceding twelve-month period, a valid elec- tion shall have been held " 342 DECISIONS OF NATIONAL LABOR RELATIONS BOARD As the Union here admits it has no majority among the Employer's current employees, we find that no question presently exists concern- ing the representation of such employees and shall dismiss the peti- tion, without prejudice to its refiling in the event that the Union asserts any affirmative claim inconsistent with its present withdrawal. Under these circumstances, we shall also revoke the certification granted the Union in Case No. 26-RC-1388.3 [The Board dismissed the petition without prejudice and revoked the certification of September 6, 1960, in Case No. 26-RC-1388.] CHAIRMAN MCCULLOCH, concurring : I concur with Members Fanning and Brown in dismissing the petition, but for different reasons. The facts show that no question of representation exists. After a Board-directed election the Union was certified on September 6, 1960, as the exclusive bargaining representative of the Employer's em- ployees.' Thereafter the parties engaged in negotiations but did not reach agreement. On October 4, 1961, the Employer filed a repre- sentation petition, alleging that the Union had presented a claim to be recognized as the collective-bargaining representative. On Oc- tober 13, 1961, the Union filed a Section 8 (a) (5) charge, alleging that the Employer had unlawfully refused to bargain. The Regional Director dismissed the unfair labor practice charge on November 21, 1961. The Union promptly appealed to the General Counsel to review the dismissal of the charge. On January 2, 1962, the General Counsel denied the Union's appeal. In early December while the appeal on the complaint charge was pending, the Regional Director conducted a hearing on the Employer's petition, and on December 27, 1961, he issued a Direction of Election. On January 5, 1962, the Union requested Board review of the Regional Director's determina- tion directing an election. In its request for review and its brief in support thereof the Union states that it does not claim to represent the Employer's employees. There are no unfair labor practice charges pending at the present time and the Union has taken no action inconsistent with its dis- claimer. I therefore give the disclaimer its plain effect. As the Pe- titioner does not now present to the Employer "a claim to be recognized as the representative defined in Section 9(a)," there is no question of representation within the meaning of Section 9(c) (1) (B) of the statute. In the absence of such question there is no need to conduct an elec- tion to determine that the Union is no longer the representative of 8 See Hygienic Sanitation Company, 118 NLRB 1030, 1032 , Chickasaw Hotel Company d/b/a Chssca Plaza Motor Hotel, 132 NLRB 1540. 4 Certification issued in Case No 26-RC-1388. FRANZ FOOD PRODUCTS OF GREEN FOREST, INC. 343 the employees-a fact which the Union readily admits. This is the fact the Employer's petition sought to ascertain. The Employer now has no obligation to recognize the Union. As the Board early ob- served, to direct an election in the face of the disclaimer would sanc- tion the Employer's refusal to engage in collective bargaining, not only with this Union but with any other for 1 year.5 The Regional Director directed an election in this case on the au- thority of Humko, A Division of National Dairy Products Corpora- tion, supra. A majority of the Board there held that a union's disclaimer of representation at the hearing was equivocal where, at the time of the hearing, an appeal was pending before the General Counsel from the Regional Director's dismissal of 8(a) (5) charges. The Humko decision issued almost 4 months after the General Counsel had dismissed the charges in the complaint case. It thus did not take into account events occurring after the representation hearing. The Humko decision, in treating events only as of the time of the hearing, departed from longstanding precedent. Until then the Board had always permitted a union to withdraw its claim of repre- sentation not only at the hearing but also after the Board had issued its Decision and Direction of Election.' And only when a union continued to insist that it was the majority representative did the Board, despite the dismissal of the Section 8(a) (5) charges, direct an election.' For these reasons I join in reversing the Hunnko decision in the order dismissing the petition in this case, and in the order revoking the certification. MEMBERS RODGERS and LEEDOM, dissenting : The Employer filed its petition herein on October 4, 1961. Nine days thereafter, the Union, which had been certified approximately 13 months earlier, filed a charge in Case No. 26-CA-1157, alleging a refusal to bargain by the Employer. Thereafter, the Union's repre- sentative stated at the hearing, on December 7, 1961, that the Union did not claim to represent any employees working at the plant or on the payroll at that time. However, at the same time that the Union was disclaiming interest at the hearing, its appeal from the Regional Director's dismissal of the charge was pending before the General Counsel. The Union continued to pursue its appeal until January 2, 1962, when the appeal was formally denied by the General Counsel. On the basis of these facts, our colleagues conclude that the Union's attempt to secure further action on its 8(a) (5) charge was not tanta- mount to asserting a present claim of representation inconsistent with 5 Federal Shipbuilding and Drydock Company , 77 NLRB 463 , 464, 465 6Federal Shipbuilding and Drydock Company, supra; O'Connor Motor, Inc, 101 NLRB 354; Campos Dairy Pi oducts, Limited, 107 NLRB 715 ; Hygienic Sanitation Company, supra See also Chickasaw Hotel Company , d/b/a Chisca Plaza Motor Hotel, supra '+Alexander Manufacturing Company, 120 NLRB 1056 344 DECISIONS OF NATIONAL LABOR RELATIONS BOARD its disclaimer. We cannot agree. As the majority opinion stated in the Humko 8 case which is now being overruled, the Union, by pressing its appeal on and beyond the date of the hearing, was necessarily seek- ing a Board order that the Employer bargain with the Union. Also implicit therein was the position that, irrespective of any loss of majority by reason of these asserted unfair labor practices, the Union was still entitled to be bargained with as the majority representative of the employees involved. In such circumstances, a disclaimer of present majority status is not to be equated unequivocally with an abandonment of such bargaining status. Our colleagues further assert that, because a finding of a violation of Section 8 (a) (5) necessarily requires an implicit conclusion that no valid question concerning representation exists, the conduct of the Union in pressing the 8(a) (5) charge was not inconsistent with its disclaimer. This, we believe, misconceives the point at issue. For, an 8(a) (5) finding would mean that the Board was affirming the bar- gaining status of the Union and declaring that such status was not open to the challenge of an election. While a necessary corollary of such a conclusion would be that there was no valid question concerning representation to support an election challenging the Union's status, what is relevant here is that the Union was, by pressing the charge, seeking affirmation of its majority status and that the disclaimer was inconsistent therewith. Accordingly, we would reject the Union's disclaimer as equivocal and affirm the Regional Director's direction of an election. 8 Humko, A Division of National Dairy Products Corporation , supra. We cannot accept the Chairman ' s assertion that Humko departed from long-standing precedent and that prior to that decision the Board had always permitted withdrawal of a claim of repre- sentation at the time of the hearing or after the Board's Decision and Direction of Elec- tion. In all the cases cited by Chairman McCulloch such disclaimers were clear and un- equivocal and the Union had taken no action Inconsistent therewith . The Board has, throughout the years , rejected disclaimers which were equivocal . See, a g., Standard Brands, Inc., 77 NLRB 992 , 994-995 In view of this Union's pattern of inconsistent behavior, we cannot give credence to the belated disclaimers alleged In Its request for review and its brief. Cf. Casey-Metcalf Machinery Co , et at, 114 NLRB 1520, 1524. Broomall Construction Company and Local 312, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Independent , Petitioner. Case No. 4-RC- 4659. May 25, 1962 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 William Draper Lewis, hearing officer. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed. 137 NLRB No. 37.