Gebhardt-Vogel Tanning Co.

National Labor Relations Board - Board DecisionsAug 31, 1965

154 N.L.R.B. 913 (N.L.R.B. 1965)

GEBHARDT-VOGEL TANNING COMPANY, ETC. 913 by assigning the disputed work to employees presently referred by Local 769, IBEW. In making this assignment, we are not assigning the disputed work to Local 769, IBEW or its members. DETERMINATION OF DISPUTE Pursuant to Section 10(k) of the National Labor Relations Act, as amended, and upon the basis of the foregoing findings and the entire record in this proceedings, the National Labor Relations Board hereby makes the following Determination of Dispute. 1. Persons referred by International Brotherhood of Electrical Workers, Local No. 769, AFL-CIO, are entitled to the work of operating hoisting equipment in the switchyard at Glen Canyon Dam performed by their Employer, Ets-Hokin Corporation. 2. International Union of Operating Engineers, Local No. 428, AFL-CIO, is not entitled by means proscribed by Section 8(b) (4) (D) to force or require Ets-Hokin Corporation to assign the dis- puted work to persons referred by it. 3. Within 10 days from the date of this Decision and Determina- tion of Dispute, International Union of Operating Engineers, Local No. 428, AFL-CIO, shall notify the Regional Director for Region 28, in writing, whether or not it will refrain from forcing or requir- ing Ets-Hokin Corporation by means proscribed by Section 8(b) (4) (D) to assign the work in dispute to persons referred by it. Gebhardt-Vogel Tanning Company and Dossie Jones, Petitioner and Leather Workers Union , Local 47, Amalgamated Meat Cut- ters and Butcher Workmen of North America , AFL-CIO. Case No. 30-RD-12. August 31,1965 DECISION AND ORDER QUASHING NOTICE OF HEARING AND DISMISSING PETITION On July 9, 1963, the Union was duly certified (in Case No. 13- RC-9347)1 as the statutory representative of a certain appropriate unit of the Employer's employees. On July 28, 1964, the present decertification petition was filed under Section 9(c) (1) of the National Labor Relations Act, as amended, in substance alleging that the Union was no longer the statutory representative of the said employees, and requesting an election to prove the allegation. 'At that time, the area was served by Region 13 (Chicago , Illinois ). The area is now served by Region 30 (Milwaukee , Wisconsin). 154 NLRB No. 68. 206-446-66--vol. 154-59 914 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Thereafter, the Regional Director for Region 30, on behalf of the National Labor Relations Board, investigated the petition, adminis- tratively determined that there was reasonable cause to believe that a question of representation affecting commerce existed, and accord- ingly provided for an appropriate hearing upon due notice. On August 24, 1964, the hearing was held. Thereafter, briefs were duly filed by the Employer and the Union, and were served on the other parties. The Union's brief alleged in part that the Employer had refused, during the certification year, to furnish certain re- quested wage information ; the Union had filed a timely charge that the Employer thereby unlawfully refused to bargain (Case No. 13- CA-5923) ;2 and it was only after the Regional Director informed the Employer that he intended to issue a complaint , based on the change, that the Employer furnished the wage information the Union had requested 5 months earlier; whereupon the Union with- drew its charge at the Regional Director's request . The brief argued that no effective collective bargaining could take place during the 5-month period of the Employer 's refusal to furnish the requested information ; that the Board should hold, in accord with the princi- ple established in Mar-Jac Poultry Company, Inc. (136 NLRB 785), that no question concerning representation could exist until the Employer had honored the certification for a period of at least a year; and that the Board should, therefore, dismiss the petition. On March 18, 1965, the Board, having been administratively informed by the Regional Director that the facts and circumstances were substantially as alleged in the Union's brief, issued an order to show cause why the Board should not accept as true the factual allegations in the Union's offer of proof made at the hearing; why the Board should not take administrative notice of certain informa- tion appearing in the file in Case No. 13-JCA-5923; and why the fore- going matters do not warrant application of the Mar-Jac principle so as to allow the Union at least a full year of actual bargaining before a decertification petition will be entertained. Thereafter, the Employer duly filed a response to the order to show cause, in which it did not deny the foregoing factual allegations and administrative information, and did not assert that it had honored the certification for the period of at least a year and par ticularly during the 5-month segment when it was refusing the Union's request for relevant bargaining information. Rather, it argued in substance that dismissal of the petition on the Mar-Jac principle would violate the guarantee of due process and Section 10(b), and that administrative information was an incompetent and immaterial basis for refusing to entertain the petition. 2 See footnote 1, supra. GEBHARDT-VOGEL TANNING COMPANY , ETC . 915 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 McCulloch and Members Brown and Zagoria]. The Board, having considered the foregoing matters , is adminis- tratively satisfied that there is no reasonable cause to believe that a question of representation affecting commerce existed at any relevant time. Since Section 9(c) (1) of the Act directs the Board to hold a hearing only "if it has reasonable cause to believe that a question of representation affecting commerce exists," we are of the opinion that a hearing should not have been directed. Moreover, even if reasonable cause to believe that a question of representation affecting commerce did exist, contrary to our ad- ministrative determination , we do not believe that due process, or Section 10 ( b), would require any further evidentiary hearing to provide a basis for our application of the Mar-Jac principle. For the Employer , in its response to the order to show cause, does not deny the factual allegations set forth above , even though the truth or falsity is within the Employer 's knowledge ; nor does it dispute the administrative information referred to in the order to show cause. As this is an investigatory proceeding , the Board may take admin- istrative notice of information possessed and action taken by its Regional Director . Reference to the records in Case No. 13-CA- 5923 confirms the facts set out above and discloses that the charge was withdrawn by the Union at the specific request of the Regional Director , after he had investigated the Union 's charge and had determined that issuance of a complaint based thereon was war- ranted , and after the Employer recanted its refusal to furnish the Union the requested information and thus discontinued the particu- lar act which supplied the factual basis for the Union 's charge. On the basis of the foregoing , we are satisfied that the Employer's belated functioning of the requested information , after the charge was filed and issuance of a complaint was authorized , and the Union's consequent withdrawal of the charge at the request of the Regional Director , are tantamount to a settlement of the unfair labor practice proceeding , less formal but essentially not different from the written settlement agreement which the Board in Mar-Jac con- sidered a sufficient foundation for extending the period following a certification during which no valid petition may be filed. We con- clude, on the basis of considerations similar to those which led us to a like result in the ilfar-Jac case ,3 that the decertification petition was not timely filed since the Union did not have the opportunity to enjoy a full year of bargaining after its certification. 8 See also Lamar Hotel, 137 NLRB 1271, 140 NLRB 226 , approved and enfd. 328 F. 2d 600 (C.A. 5), cert . denied 379 U.S. 817. 916 DECISIONS OF NATIONAL LABOR RELATIONS BOARD [The Board quashed the notice of hearing and dismissed the petition.] Triumph Sales, Inc., Petitioner and Retail Clerks Union Locals 770 and 905, Retail Clerks International Association , AFL-CIO. Case No. 31-RM-1 (formerly 21-RM-1102). August 31, 1965 DECISION AND DIRECTION OF ELECTIONS * Upon a petition duly filed under Section 9(c) of the National Labor Relations Act, as amended, a hearing was held before Hearing Officer Orville S.. Johnson. The Hearing Officer's ruling made at the hearing are free from prejudicial error and are hereby affirmed.' Upon the entire record in the case, including the briefs filed by the parties, the National Labor Relations Board finds : 1. The Employer is engaged in commerce within the meaning of the Act and it will effectuate the purposes of the Act to assert juris- diction herein. 2. The labor organizations involved claim to represent certain employees of the Employer-Petitioner. 3. The Employer-Petitioner, herein referred to as Triumph, is licensed by White Front, which owns a chain of discount department stores,. to operate retail liquor departments on White Front premises. Triumph operates such departments at 11 White Front locations in the State of California, and it seeks an election among retail sales employees working at 9 of these liquor departments. White Front and Retail Clerks contend that the petition should be dismissed on the grounds that White Front and Triumph are joint employers of these employees, that the petition seeks an election in an inappro- priate unit, and that the petition is barred by the agreement between White Front and Retail Clerks. In addition, Retail Clerks contends that the petition is barred by the bargaining agreements between Bristlo Liquor Inc.,2 and Retail 'Clerks. The Board on three occasions in the recent past has decided cases involving licensed departments at the White Front Stores, Bab-Rand Company, 147 NLRB 247, Esgro Anaheim, Inc., 150 NLRB 401, New * On September 22, 1965, the Board vacated the Decision and Direction of Elections insofar as it relates to units (1), (2), and (3) as, due to 'a change in method of store operation , these units are now one -employee units and the parties agree that no election should be held In these units. i White Front Stores, Inc., herein referred to as White Front, and Retail Clerks Union Locals 324, 1167, and 1428, Retail -Clerks International Association, AFL-CIO, were properly permitted to intervene at the hearing because of their contractual interests in this proceeding . All the unions which are parties hereto are herein collectively referred to as Retail Clerks. 2 As described more fully below, Bristlo Liquor Inc., herein called Bristlo, operated liquor departments in a number of the White Front Stores prior to Triumph. 154 NLRB No. 71.