Peter Paul, Inc.

National Labor Relations Board - Board Decisions

Jun 18, 1973

204 N.L.R.B. 241 (N.L.R.B. 1973)

PETER PAUL, INC.
Peter Paul, Inc . and Warehouse , Processing and Allied
Workers, Local 6, International Longshoremen's
and Warehousemen 's Union,' Petitioner . Case 20-
RC-8126
June 18, 1973
DECISION AND DIRECTION OF ELECTION
BY MEMBERS FANNING, JENKINS, AND KENNEDY
Upon a petition duly filed under Section 9(c) of the
National Labor Relations Act, as amended, a hearing
was held before Hearing Officer Gretchen S. Van
Kleef. Following the hearing,' pursuant to Section
102.67 of the National Labor Relations Board Rules
and Regulations and Statements of Procedure, Series
8, as amended, this case was transferred to the Na-
tional Labor Relations Board for decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has reviewed the Hearing Officer's rul-
ings made at the hearing and finds no prejudicial
error. The rulings are hereby affirmed.
Upon the entire record in this proceeding, the
Board finds:
1. The Employer is engaged in commerce within
the meaning of the Act, and it will effectuate the
purpose of the Act to assert jurisdiction herein.
2. The Petitioner and the Intervenor are labor or-
ganizations claiming to represent certain employees
of the Employer.
3. A question affecting commerce exists concern-
ing the representation of certain employees of the
Employer within the meaning of Sections 9(c)(1) and
2(6) and (7) of the Act.
4. The parties stipulated that the Employer is a
corporation with a place of business in Salinas, Cali-
fornia, where it is engaged in the manufacture and
sale of candy. The corporation during the past year in
the course and conduct of such business sold and
shipped goods valued in excess of $50,000 directly to
customers located outside the State of California.
On April 29, 1968, ILWU filed the instant petition,
seeking to represent certain employees of the Employ-
er. Thereafter the Employer continued bargaining
with the incumbent ICW, and these parties subse-
quently executed a collective-bargaining agreement.
On May 16, 1968, ILWU filed a charge, alleging that
the Employer was continuing to recognize and negoti-
1 Hereinafter referred to as ILWU.
2Industnal Candy Workers Union appeared as Intervenor.
241
ate with ICW after a question concerning representa-
tion had been raised by the filing of the petition, and
that the Employer was therefore engaging in conduct
violative of Section 8(a)(2) of the Act. On May 20,
1968, the Employer was advised by the Board's Re-
gional Office that because of the filing of the charge
"further processing of the petition will await disposi-
tion of the unfair labor practice charge."
On August 27, 1970, the Board issued its Decision
and Order,' finding that the Employer violated Sec-
tion 8(a)(2) and (1) of the Act by continuing to bar-
gain and entering into a contract with ICW while
there was a question concerning representation, and
by enforcing and maintaining such contract. The
Board's Order required the Employer to cease and
desist from recognizing or bargaining with ICW, or
from enforcing or maintaining its contract with ICW,
unless and until ICW shall have been certified by the
Board as the statutory representative of its employees;
and in any like or related manner interfering with,
restraining, or coercing its employees in the exercise
of the rights guaranteed them by Section 7 of the Act.
On August 1, 1972, the United States Court of Ap-
peals for the Ninth Circuit denied enforcement 4 of
the Board's Order. The court stated that "an employer
is not in violation of the Act where there is no real
question concerning representation and it continues
to negotiate with the union which then represented its
employees." The Board's petition for rehearing was
denied on November 14, 1972, and the Board did not
seek certioriari.
The Employer contends that the Ninth Circuit deci-
sion must be read to indicate that no question con-
cerning representation existed when the Employer
and ICW entered into the 1968 contract, and that
therefore the petition should be dismissed on the
grounds that no question concerning representation
exists. The Employer and ICW further contend that
the current contract, which expires June 30, 1974,
serves as a bar to this proceeding. We disagree.
Essentially, the court found that the evidence in the
unfair labor practice case did not establish that the
Employer breached its neutral position by recogniz-
ing ICW. Other courts have further differentiated be-
tween the criteria necessary to support an unfair labor
practice finding and the factors which justify proceed-
ing with an election. Thus in N.L.R.B. v. Swift & Co.,5
a case relied on by the Ninth Circuit, the court said:
The showing of thirty percent interest, however,
has a limited purpose. It was devised as a means
of facilitating the board's decision as to whether
circumstances justify holding an election at all.
' Peter Paul, Inc, 185 NLRB 281
4 N L R B v Peter Paul, Inc, 467 F 2d 700
' 294 F 2d 20, 288 (CA 3, 1961)
204 NLRB No. 57
242 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
When used for this purpose, the board has held
that such a showing may not be subject to colla-
teral attack... .
As is readily apparent, there is a great deal of
difference between using the thirty percent show-
ing to support a decision to hold an election and
in using it as an evidentiary basis for an unfair
labor practice finding.
Again in another case,6 the Ninth Circuit, referring
to a "question of representation" in a representation
context, stated:
The phrase "such a question of representation,"
contained in the last sentence of subdivision
[9](c)(1) . . . obviously refers back to the earlier
phrase indicating that the question of representa-
tion must be one affecting commerce.
Thus, our processing of the instant representation
proceeding, following a hearing, does not conflict
with the decision of the Ninth Circuit in the earlier
unfair labor practice case, in which the court found
that the evidence does not support a finding that the
Employer violated Section 8(aX2) of the Act. Indeed,
our direction of election herein is in accordance with
the teachings of the Supreme Court which recently
stated that authorization cards "are admittedly inferi-
6 N L.R B. v. J L Case Company, 201 F 2d 597, 600 (1953).
or to the election process," which is "the most satis-
factory-indeed the preferred-method of ascertain-
ing whether a union has majority support."'
In the instant proceeding, the ILWU petition was
timely and supported by an adequate showing of in-
terest.8 The contentions of the Employer and ICW
that the current contract operates as a bar to this
proceeding is without merit. It is well established that
to serve as a bar to an election, the contract must be
signed by all the parties before the rival petition is
filed .9
In view of the foregoing, we shall direct an election
by secret ballot in the following stipulated unit of
employees, which we find to be appropriate for the
purposes of collective bargaining within the meaning
of the Act:
All production and maintenance employees
employed by the Employer at its Salinas , Califor-
nia, location, including cafeteria employees,
warehouse employees and on-call employees; ex-
cluding office clerical employees, nurses, profes-
sional employees, guards, and supervisors as
defined by the Act.
[Direction of Election and Excelsior footnote
omitted from publication.]
r N.L R B v Gissel Packing Co., Inc, 395 U.S. 575, 602-603 (1969).
8 The showing of interest was adequate on its face , and it is an administra-
tive matter not subject to litigation . .0 D Jennings & Company, 68 NLRB
516
9 Fruehauf Trailer Company, 87 NLRB 589