Swift and Co.

National Labor Relations Board - Board Decisions

Jan 9, 1959

122 N.L.R.B. 887 (N.L.R.B. 1959)

ST. LOUIS INDEPENDENT PACKING COMPANY 887
B. All unlicensed employees employed by Blaske, Inc., including
deckhands , tankermen , oilers, strikers, cooks, maids , messboys, util-
ity men, and firemen.
C. All unlicensed employees employed by Commercial Transport
Corporation , including deckhands , tankermen , oilers, strikers , cooks,
maids, messboys , utility men , and firemen.
If a majority of the employees in each voting group vote for the
Petitioner , the employees will be taken to have indicated their de-
sire to constitute a single combined unit. In that event the Re-
gional Director is instructed to issue a certification of representa-
tives to the Petitioner for such unit which the Board , under such
circumstances , finds to be appropriate for purposes of collective
bargaining.
If a majority of employees in each voting group do not vote for
the Petitioner , they will be deemed to have indicated their desire
to constitute separate units and the Board finds the group or
groups in which the Petitioner receives a majority of the votes to
be a separate unit or units appropriate for the purposes of collec-
tive bargaining . The Regional Director shall issue a certification
of representatives to the Petitioner for each unit in which it has
been selected as bargaining representative , and a certification of
results in each unit in which it has not been so selected.7
[Text of Direction of Elections omitted from publication.]
7 The Petitioner has made a sufficient showing of interest in voting group C to justify
holding an election in that group. If it does not desire an election in either that voting
group or any other voting group, it may notify the Regional Director to that effect within
10 days of the date of this Decision and Direction of Elections.
St. Louis Independent Packing Company, a Division of Swift
and Company and Amalgamated Meat Cutters and Butcher
Workmen of North America , Local 66, AFL-CIO , Petitioner.
Case No. 14-RC-3355. January 9, 1959
SUPPLEMENTAL DECISION AND DIRECTION
Pursuant to a Board Decision and Direction of Election,' an
election by secret ballot was conducted on November 5, 1958, un-
der the direction and supervision of the Regional Director for the
Fourteenth Region of the National Labor Relations Board, among
the employees in the unit therein found appropriate. Following
the election, the parties were furnished a tally of ballots which
showed that of approximately 31 eligible voters, 31 cast ballots,
and all 31 ballots were challenged.
I Unpublished.
122 NLRB No. 110.
888 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The challenged ballots were sufficient in number to affect the
results of the election. The Regional Director, after investigation,
issued his report on challenged ballots on November 18, 1958, in
which he recommended that the challenges be overruled and the
ballots be opened and counted. The Employer and National Broth-
erhood of Packinghouse Workers, Intervenor, .filed timely exceptions
to the Regional Director's report, in which they request the Board
to sustain the challenges.
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 Leedom and Members Bean and Fanning].
The Employer challenged all ballots cast in the election on the
ground that the Board's Decision and Direction of Election was
invalid because the Employer's 3-year contract with the Intervenor
constituted a bar to an election. The contract-bar contention was
previously considered by the Board in its Decision and Direction
of Election, issued on October 6, 1958, in which the Board found
that the contract was not a bar because it was of unreasonable dura-
tion and had been in effect for over 2 years.2 The Board's decision
there followed the rule adopted in Pacific Coast Association of Pulp
and Paper Manufacturers, 121 NLRB 990, which was one of sev-
eral decisions issued on or about September 23, 1958, adopting cer-
tain revisions in the Board's rules pertaining to contract bar. After
the Board directed the election herein, the Employer and Inter-
venor filed motions for reconsideration, contending that the Pacific
Coast rule should not have been applied to cases, like the instant
one, which were pending at the time that decision was issued;' but
if it was applied, then the petition herein should have been dis-
missed as premature under another rule, adopted in the same Pacific
Coast decision, purportedly requiring dismissal of all petitions filed
more than 150 days before the end of the first 2 years of the con-
tract term. Although the Board denied the motions for reconsid-
eration, these same contentions formed the basis for the Employer's
challenge of all the ballots cast in the election, and of the Em-
ployer's and Intervenor's exceptions to the Regional Director's
recommendation that the challenges be overruled.
The Board considered the applicability of its revised contract-bar
rules in Deluxe Metal Furniture Company, 121 NLRB 995, referred
to in Pacific Coast, and issued the same day. Denying the request
2 The contract was effective from September 24, 1956, to September 1, 1959 ; the petition
herein was filed on March 11, 1958.
8 The Employer and Intervenor contended that the prior existing rule, under which a
contract of over a 2 -year duration was considered a bar if it was shown that a substantial
part of the Employer 's industry was covered by such contracts , should have been applied
to the instant case.
ST. LOUIS INDEPENDENT PACKING COMPANY 889
of the petitioner in that case that such rules be applied in futuro
only, the Board stated :
[I]n establishing revisions of precedent there is always the like-
lihood that such revisions will bring about a different result in
some pending proceeding than would have obtained under a
prior policy or procedure. This is true not only of the case in
which such revisions are first announced and-applied, but also
with respect to any other case which has not yet been decided,
because it has not reached the Board's level or is at one of the
other stages of the administrative process such as the hearing.
Thus, to adopt these revisions of contract-bar policy and then
allow the instant proceeding as an exception without permitting
a similar exception to all pending cases would be inequitable.
To establish an in futuro rule for all pending cases would cre-
ate an administrative monstrosity. The judicial practice of
applying each pronouncement of a rule of law to the case in
which the issue arises and to all pending cases in whatever stage
is traditional and, we believe, the wiser course to follow. Ac-
cordingly, we deny the Petitioner's request that any revised
policy not be applied to the instant case.
Accordingly, as the instant proceeding was pending before the Board
at the time the Pacific Coast rule was adopted, and no valid reason
appears for making an exception to the Board's determination in
Deluxe Metal that the revised rules would be applied to all pending
cases, we adhere to the Board's decision that the contract herein is
not a bar because it was of unreasonable duration and had been in
effect for over 2 years.
The revised rule on prematurely filed petitions, as briefly stated
in Pacific Coast and more fully explained in Deluxe Metal, is not
applicable to the facts of the instant case. Thus, as set forth in
those decisions, the rule, where pertinent here, provides that a peti-
tion filed more than 150 days before the end of the first 2 years of
the contract term will be regarded as premature and will be dis-
missed unless a hearing is directed despite the prematurity of the pe-
tition, and the Board's decision issues on or after the 90th day pre-
ceding the end of the first 2 years of the contract. The hearing had
been directed and held in the instant case, and the Board's decision
issued after the 90th day preceding the end of the 2-year period.
The petition herein therefore clearly fell within the exception to the
rule requiring dismissal of prematurely filed petitions 4
In setting forth the conditions under which hearings would be held on otherwise
premature petitions , the Board was referring to future cases and not to those , like the
instant case, where hearings had already been held.
890 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The names of all employees whose ballots were challenged were
included on the list submitted by the Employer and checked and
approved by both the Intervenor and the Petitioner prior to the
election. We agree with the conclusion of the Regional Director,
therefore, that the parties were in agreement that the challenged
individuals were eligible to vote, except for the contentions dis-
cussed above, which we have found to be without merit. Under
these circumstances, we adopt the Regional Director's recommenda-
tion that the challenges be overruled, and we shall direct that the
ballots be opened and counted.
[The Board directed that the Regional Director for the Fourteenth
Region shall, within ten (10) days from the date of this Direction,
open and count the 31 challenged ballots, and serve upon the parties
a supplemental tally of ballots.] '
Charles J. Kaye, Saima Kaye, David J. Kaye, and. Joan K.
Engberg, d/b/a Arrow Press and Local 7, Amalgamated
Lithographers of America , Charging Party. Case No. 13-CA-
2771. January 1 °2, 1959,
DECISION AND ORDER
On October 6, 1958, Trial Examiner Samuel Ross issued his Inter-
mediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in certain,unfair labor
practices and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the copy.. of the Inter-
mediate Report attached hereto. Thereafter, the Respondent filed
exceptions to the Intermediate Report, together with a. supporting
brief.
Pursuant to the provisions of :Section 3(b) of the National Labor
Relations act, as amended, the Board has delegated its powers in
connection with. this case to a three-member panel [Chairman Leedom
and Members Bean and Fanning].
The Board has reviewed the rulings made by the Trial Examiner
at the hearing. and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the
Intermediate Report, the exceptions and brief, and the entire record
in the case, and hereby adopts the findings, conclusions, and recom-
mendations of the- Trial Examiner.
ORDER
Upon the entire record in the case, and pursuant to Section 10(c)
of the National Labor Relations Act, as amended, the National Labor
122 NLRB No. 101.