Franz Food Products of Green Forest, Inc.

National Labor Relations Board - Board Decisions

May 25, 1962

137 N.L.R.B. 340 (N.L.R.B. 1962)

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.