National Dairy Products Corp.

National Labor Relations Board - Board Decisions

Mar 19, 1959

123 N.L.R.B. 310 (N.L.R.B. 1959)

310 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Flexograph Division, and in the stereo department; the stone man;
the two mercury cutting machine master pressmen; the two lead
diemakers in the Flexograph Division; the cylinder cutting master
pressman; and the carpenter leadman. These leadmen are more
experienced employees, who, in some instances, routinely direct the
work of four employees each and are responsible for the quality of
work so performed. They have no authority to hire or discharge
employees or to reprimand or discipline them. Unlike the foremen
and other supervisory personnel whom the parties agree to exclude
as supervisors within the meaning of the Act, the leadmen herein
do not make effective recommendations affecting the status of em-
ployees, but merely make individual work performance reports,
which their supervisors, in turn, use to make their own independent
recommendations. Under all the circumstances, and as the 10 lead-
men herein do not possess or exercise the statutory authority of
supervisors, we find that they are not supervisors as defined in the
Act. Accordingly, we shall include them in the unit.-
Accordingly, we find that all production and maintenance employ-
ees in the Employer's paper board container manufacturing Plants
Nos. 1 and 2, and auxiliary warehouses, in Atlanta, Georgia, includ-
ing warehouse employees, laboratory technicians, corrugated sample
and package engineering sample makers, production art employees,
plant clerical employees, over-the-road truckdrivers, cafeteria em-
ployees, and leadmen, but excluding office clerical employees, pro-
fessional and technical employees, lease machinery employees,
guards, and supervisors as defined in the Act constitute a unit ap-
propriate for the purposes of collective bargaining within the mean-
ing of Section 9(b) of the Act.
[Text of Direction of Election omitted from publication.]
" United States Gypsum Company, 118 NLRB 20, at 29.
Humko, a Division of National Dairy Products Corporation 1
and Martin Diepholz and Ruben Cash , Petitioners and
General Drivers , Salesmen & Warehousemen's Local Union
984, International Brotherhood of Teamsters, Chauffeurs,
Warehousemen & Helpers of America. Case No. 32-RD-61.
March 19, 1959
DECISION AND DIRECTION OF ELECTION
Upon a decertification petition duly filed under Section 9 (c) of
the National Labor Relations Act, a hearing was held before Joseph
1 The name of the Employer appears as amended at the hearing.
123 NLRB No. 38.
HIJMKO, A DIVISION OF NATIONAL DAIRY PRODUCTS CORP. 311
W. Bailey, hearing officer. The hearing officer's rulings made 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 Petitioners, individuals representing certain of the employ-
ees of the Employer, assert that the Union is no longer the bargain-
ing representative of the majority of the employees under Section
9 (a) of the Act.
3. A question affecting commerce exists concerning the representa-
tion of employees of the Employer within the meaning of Section
9(c) (1) and Section 2(6) and (7) of the Act, for the following
reasons:
The Employer does not have any presently existing or recently
expired contracts with any labor organizations. The Union has first
moved to dismiss the petition on the ground that it was filed by
supervisors. However, the uncontroverted testimony discloses that
the individual Petitioners have voted unchallenged in prior elections
and that their employee status has remained unchanged. The record
fails to show that they possess any supervisory authority. We there-
fore find no merit in this contention.
The Union would also have the petition dismissed on the ground
that there is no question concerning representation, stating on the
record that it has no interest in representing these employees. The
Board has frequently held that a union's disclaimer of representation
must be clear and unequivocal, and not inconsistent with its other
acts or conduct.' We take official notice of the Board's records and
find that at the time the Union herein was disclaiming interest at
the hearing, on October 6, 1958, there was pending an appeal before
the General Counsel from the Regional Director's dismissal of a
charge filed by the Union, in Case No. 32-CA-606, alleging inter
alia, a refusal to bargain by the Employer. The Union continued to
pursue its appeal until November 28, 1958, when the appeal was
formally denied by the General Counsel. 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 Employer that it bargain with the Union. We therefore reject
the Union's disclaimer of representation as equivocal and plainly in-
consistent with its concurrent conduct in seeking a bargaining order.
In these circumstances, we believe it was incumbent upon the Union
to indicate, on the record or otherwise, its withdrawal of the appeal
if it truly intended to abandon its representation claim. Accord-
2 E.g., McAllister Transfer Inc., 105 NLRB 751; Casey-Metcalf Machinery Co., 114
NLRB 1520.
312 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ingly, we find that a current claim for recognition has sufficiently
been made out to warrant an election.
4. We find that the following employees of the Employer consti-
tute a unit appropriate for the purposes of collective bargaining
within the meaning of Section 9(b) of the Act.
All hourly employees ' employed at the Employer's Memphis,
Tennessee, plant, including truckdrivers, but excluding office clerical
employees, the superintendent's clerk, professional and technical
employees, engineers, salesmen, watchmen-guards, the head cook in
the cafeteria, temporary employees, and all supervisors as defined
in the Act.3
[Text of Direction of Election omitted from publication.]
MEMBER FANNING, concurring in part and dissenting in part:
I think it is time the Board reappraise its approach to the question
of disclaimers, such as made by the Union on the record of this
decertification proceeding. Section 9(c) (1) authorizes the Board
to proceed to an election only when it finds that a question of repre-
sentation exists. Where the sole union involved withdraws its claim
of majority status, a question of representation, it seems to me, no
longer exists. I am fully aware that some unions, although actually
intending to persist in their representation claims, have resorted to
the facile device of a disclaimer, in order to procure a dismissal of
the petition for a Board election on the basis that no question of
representation existed, and then be free to renew their claims upon
the employer at their convenience.
And there are, of course, disclaimers which have been made in good
faith, or at least have been accepted as such absent contrary evidence.
In such cases, the Board properly realized that it would not direct an
election. In the case of a certified union, for example, the Board has
dismissed the petition, with the specific holding that the union
having disclaimed its interest, is no longer the exclusive repre-
sentative of the employees in the unit involved in this proceed-
ing. Moreover, the parties are advised that the Board will not
entertain a petition filed by the Union within 6 months from the
date of this Order, unless good cause is shown to the contrary.
In the event that the Union purporting to represent the em-
ployees in the unit involved in this proceeding makes a claim
upon the employer within 6 months from the date of this Order,
the Board will entertain a motion by the Petitioner requesting
reinstatement of the petition.'
3 The unit was stipulated at the hearing.
a E.g., Little Rock Road Machinery Company, 107 NLRB 715.
HUMKO, A DIVISION OF NATIONAL DAIRY PRODUCTS. CORP. 313
I agree with such disposition. While the seriousness of the union's
positive representation claim which gave rise to the petition is not
to be discounted, it must be recognized that the union may have had
bona fide reasons for reversing its earlier position that it represented
a majority of the employees in the unit. The 6-month prejudice
provision in this situation is necessary and salutary, as a general
rule, certainly to prevent abuse of Board's processes.
I concur in the majority opinion, for the reasons therein stated,
that in the present case the Union's disclaimer was equivocal. This
type of disclaimer presents a more serious problem, for it involves
the precise situation mentioned of the admitted minority union
merely seeking momentarily to avoid the Board election. In more
recent cases, as in the instant majority decision, where the Board con-
cluded that the disclaimer was inconsistent with other acts and con-
duct of the union, the disclaimer was rejected and an election di-
rected.5
I do not believe that directing an election in these circumstances
comports with the terms of the statute, and it is not the solution to
the disclaimer problem presented. Such an election is artificial!
The Union admits it has no majority. There is no true question con-
cerning representation.
Of principal concern to me is the unfair penalty visited upon
employees, since the mechanical holding of such an election operates
to deprive them of the opportunity of choosing any other union in
a Board conducted election for a period of 12 months.6 It is also a
matter of proper concern that the holding of the election under the
circumstances of this case is a needless expenditure of Board time,
energy, personnel, and funds which could be directed elsewhere to
better discharge the Board's responsibilities.
I submit that the Board can accomplish by decisional process all
it can by conducting the election. The Union's equivocal disclaimer
constitutes a clear and deliberate admission against interest, i.e., that
the Union does not represent a majority. This is a highly potent
evidential fact which needs only to be given full weight and legal
effect. This fact is as strong in evidencing nonentitlement of the
Union to the status of bargaining agent as the loss of an election.
The Union, having demonstrated by its equivocal disclaimer a dis-
position to circumvent the Board's processes, should not be placed
6 For various types of conduct found inconsistent with the disclaimer , see e . g., Francis
Plating Co., 109 NLRB 35; McAllister Transfer, Inc., 105 NLRB 751; V & D Machinery
Embroidery Co., 107 NLRB 1567; Jerome E. Mundy Co., Inc., 116 NLRB 1487; Carter
Manufacturing Company, 120 NLRB 1609 ; Netti Wholesale Grocery of Watertown, Inc.,
121 NLRB 619.
6 Sec . 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.
314 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in a* better position than if it has submitted to and lost the election.
Loss of the election would have precluded it from utilizing the
Board's election machinery to establish itself as representative of
these employees for a period of 12 months.7 It is reasonable that the
Union should be held to the same result.
Consequently, I am of the view that the instant petition should be
dismissed, and based upon the Union's admission on the record, a
formal ruling should issue that the Union is not the majority repre-
sentative of the employees involved, that its certification is revoked,
and that it may not have a petition entertained as to these employees
for a period of 12 months.
MEMBER JENKINS, dissenting :
I do not agree that the action of the certified union in taking an
appeal from the Regional Director's dismissal on September 5, 1958,
of unfair labor practice charges (including a charge of refusal to
bargain), relating back to October 18, 1957, is so inconsistent with
its disclaimer of any interest in the employees in the bargaining unit
on October 6, 1958, as to warrant the direction of an election. The
appeal was taken on September 15, 1958, prior to the issuance of
notice of hearing in the instant case. At the time of the appeal the
union presumably had no knowledge that the decertification proceed-
ings herein, held in abeyance by the Regional Director since May 2,
1958, were being revived, but at the hearing it disclaimed any pres-
ent interest. The appeal in the unfair labor practice proceedings
requested a review of the Regional Director's action and issuance
of a complaint seeking remedy of the alleged unfair practices oc-
curring almost 1 year prior to the hearing in this proceeding. I
cannot equate this request for review and possible retroactive remedy
with the assertion of a current and continuing claim in view of the
Union's positive denial of such a claim. The Union has admitted it
is no longer the representative of the employees as defined in Sec-
tion 9(c). That is the sole issue raised in the instant proceeding.
This proceeding is now in the posture where there are no unfair labor
practice charges pending, there is a complete and unequivocal dis-
claimer of representative status and no subsequent action inconsistent
with that disclaimer has been taken. I therefore find that no question
concerning representation presently exists and I believe the direction
of an election at this time a questionable expenditure of the Board's
energies and funds. The rights of the Petitioners would be fully
protected by a dismissal of the petition with leave to refile should
the certified union assert any claim or embrace any action inconsistent
with its disclaimer.
7 Ibid.