The Great Atlantic & Pacific Tea Co.

National Labor Relations Board - Board Decisions

Nov 20, 1959

125 N.L.R.B. 252 (N.L.R.B. 1959)

252 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Great Atlantic & Pacific Tea Company and Bakery and
Confectionery Workers, International Union of America,' Peti-
tioner. Case No. 5-RC-2816. November 20, 1959
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 Robert W. Knadler,.
hearing officer. The hearing officer's rulings 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 labor organizations named below claim to represent certain
employees of the Employer?
3. A question affecting commerce exists concerning the representa-
tion of certain employees of the Employer within Section 9(c) (1).
and Section 2(6) and (7) of the Act.
The instant petition was filed on June 15, 1959, seeking an election
in the unit currently being represented by ABC. ABC, which had
been certified on June 13, 1958, as representative of the employees
herein, moved to dismiss the petition. Although the certification
year had expired when the petition was filed, and the certification
would therefore normally no longer bar the petition, ABC contends
that, because of certain unusual circumstances set forth below, its
certification should be treated as a bar to the petition notwithstand-
ing the expiration of the certification year.' BCW contends that
there is insufficient basis here for any extension beyond June 13, 1959,
of the certification bar rule. The Employer takes no position.
The pertinent facts are as follows. On July 27,1957, the Employer
and BCW entered into a collective-bargaining agreement effective
until April 4, 1959. Subsequently, ABC filed a representation peti-
tion and ABC and BCW agreed to a consent election which was
held on June 5, 1958. ABC was certified by the Board on June 13,
1958, and pursuant to its precertification agreement with the Em-
Hereinafter referred to as BCW.
2 The American Bakery and Confectionery Workers, International Union, Local Union,
No. 68, AFL-CIO, herein referred to as ABC, was allowed to intervene at the hearing on
the ground that it had a collective-bargaining agreement with the Employer which was
in effect on April 4, 1959 , and which may have remained in effect after that date.
3In addition to its certification bar contention discussed in the text , ABC at the hear-
ing contended that it has a current contract with the Employer which bars the petition.
This contention was not renewed in ABC's brief filed with the Board , and may therefore
be deemed to have been abandoned . In any event, as the contract was merely an in-
definite, interim extension of the parties ' prior contract , it is clearly not a bar. Paoifio'
Coast Association of Pulp and Paper Manufacturers , 121 NLRB 990.
125 NLRB No. 36.
THE GREAT ATLANTIC & PACIFIC TEA COMPANY 253
I
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ployer, it assumed the contract which had been entered into by the
Employer and BCW.
On January 16, 1959, ABC gave the Employer timely notice that
it wished to terminate the existing agreement. Thereafter, on Janu-
ary 30, 1959, BCW filed a representation petition. In support of its
petition, BCW argued that although less than a year had elapsed
since ABC's certification, under the Ludlow rule,4 the contract and
certification years had merged and, as its petition was timely with re-
spect to the termination date of the contract, April 4, 1959, the peti-
tion should be entertained. The Board, on April 30, 1959, rejected
BCW's contentions and dismissed the petition .5
Meanwhile, the Employer refused to negotiate with ABC for a
new contract while BCW's petition was still pending. Negotiations
between ABC and the Employer were finally commenced on May 20,
1959, after the dismissal of BCW's earlier petition, and on May 21
the Employer made an offer to ABC which was rejected by the em-
ployees in the unit in a secret ballot. A modified proposal was made
by the Employer on June 11, but this too was rejected by the em-
ployees. On June 13, 1959, the certification year expired and the
petition in the instant case was filed on June 15, 1959.
ABC argues that, in view of the Board's decision in Shea Chemi-
cals the Employer was justified in refusing to negotiate with ABC
during the 3-month period that the BCW petition was pending, and
ABC should therefore be given a corresponding additional period,
free from rival petitions, to negotiate a contract. In support of its
contention, ABC cited the Board's Allis-Chalmers rule,' adopted in
1943, which, in effect, provided for tacking on to the 1-year period
during which a certification normally operated as a bar, the time
consumed in the processing by the National War Labor Board of a
* In Ludlow Typo graph Company, 108 NLRB 1463, the Board held that where an em-
ployer and a certified union enter into a contract within the certification year, the con-
tract becomes controlling with respect to the timeliness of the filing of a rival petition.
e The Great Atlantic and Pacific Tea Company, 123 NLRB 1005. The Board there held
that the Ludlow rule was applicable only where the union negotiates a new contract and
not where the certified union after certification assumes an existing contract pursuant to
a preelection commitment. Pursuant to the agreement of the parties, the record and
-exhibits in that case were incorporated by reference into the present record.
e In Shea Chemical Corporation ( September 25, 1958 ), 121 NLRB 1027, the Board
overruled the Gibson exception to the Midwest Piping doctrine (William D . Gibson Co.,
Division of Associated Spring Corporation , 110 NLRB 660; Midwest Piping & Supply Co.,
Inc., 63 NLRB 1060 ) and held that "upon presentation of a rival or conflicting claim
which raises a real question concerning representation , an employer may not go so far as
to bargain collectively with the incumbent (or any other) union unless and until the
question concerning representation has been settled by the Board." The Board added,
"We wish to make it clear that the Midwest Piping doctrine does not apply in situations
where, because of contract bar or certification year or inappropriate unit or any other
established reason, the rival claim and petition does not raise a -real representation
question."
7 Allis-Chalmers Manufacturing Company, 50 NLRB 306.
254 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
case submitted to it involving a dispute between the certified union
and an employer over contract terms. BCW contends that the Allis-
Chalmers doctrine is not applicable here.
We agree. In Allis-Chalmers, the Board made it clear that it was
creating an exception to the 1-year certification rule so as not to
penalize unions for delays resulting from their voluntary submission
of disputes to the War Labor Board. A contrary rule, the Board
held, would have the undesirable effect of discouraging labor organi-
zations from utilizing these special procedures. The Board has held
that the Allis-Chalmers rule should be limited to the particular war-
time situation in which it originated and had refused to extend the
exception to the 1-year certification rule to other situations.'
4. We find, in accord with the stipulation of the parties, that the
following employees of the Employer constitute a unit appropriate
for purposes of collective bargaining within the meaning of Section
9(b) of the Act: I
All employees employed' at the Employer's Baltimore, Maryland,
bakery, including bakery porters, but excluding office clerical em-
ployees, maintenance employees, truckdrivers, deliverymen, ware-
house employees; watchmen, guards, and professional and supervisory
employees as defined in the Act.
[Text of Direction of Election omitted from publication.]
MEMBER BEAN, dissenting :
I do not agree with the majority's decision.
A certified union is normally entitled to 1 year from the date of
certification in which to reach an agreement with an employer. When
ABC won a consent election and was certified on June 13, 1958, it as-
sumed unchanged the collective-bargaining agreement negotiated by
its predecessor, BCW. When this contract was about to terminate
ABC gave timely notice of its desire to negotiate a new collective-
bargaining contract. But before any negotiating meeting could be
held BCW filed its first representation petition. The Regional Direc-
tor thought there was sufficient merit'in the petition to direct a hearing
thereon. Approximately 3 months after the filing of the petition the
Board issued its decision dismissing the petition. Meanwhile, during
the pendency of the BCW petition, the Employer rightfully refused
to bargain with ABC.10 Less than 2 months after the Board issued
8 The Daily Press, Incorporated, 112 NLRB 1434. See also, Tung-Sol Electric, Inc.,
et at ., 120 NLRB 1674.
'This is the unit for which ABC was recognized as the bargaining representative under
the earlier contract.
10 ". . . during the certification year an employer, who believes in good faith that
unusual circumstances have arisen which require a redetermination of representatives,
may raise this issue by filing a petition with the Board. But until the Board has ad-
THE GREAT ATLANTIC & PACIFIC TEA COMPANY 255
its decision on the BCW petition, the certification year expired and
was followed almost immediately by the filing of the second BCW
petition which again resulted in the suspension of negotiations. Dur-
ing this short intervening period, ABC and the Employer were un-
able to reach agreement on a new collective-bargaining contract. In
other words, ABC in reality had less than 2 months of the certifica-
tion year in which to negotiate a new contract.
In view of these special circumstances, it seems to me that ABC
has realistically not had a reasonable time subsequent to its certifica-
tion for negotiating a bargaining contract of its own. Part of the
delay was occasioned by the assumption of the contract of its rival,
a very desirable and perhaps compulsory requirement. The remain-
ing delay was caused by the necessary time lapse between the filing
of the BCW petition and the issuance of the Board's decision. In
these circumstances, it seems only fair to me to add to ABC's certifica-
tion year some reasonable time, equivalent to time- required by the
Board to dispose of BCW's petition, to enable ABC to reach an agree-
ment with the Employer if it can. This would be by analogy to the
Allis-Chalmers doctrine. I recognize that Allis-Chalmers was neces-
sitated by special circumstances during the war. But the policy or
reasons behind that doctrine seem to me to be equally applicable to
the special circumstances of this case. Every rule admits of excep-
tions. This is a case which calls for such exception.ll
MEMBER JENKINS took no part in the consideration of the above
Decision and Direction of Election.
ministratively decided that the circumstances warrant a formal investigation, and ,has
issued a notice of hearing on the petition, the employer's,duty to meet and confer in good
faith with the union continues . If and when notice of hearing issues , the employer may
with propriety at such time suspend bargaining pending determination of the question
concerning representation . The same rule would apply where a rival union files a petition
during the certification year. The employer may with propriety suspend bargaining if
and when a notice of hearing issues and not before ." Henry Heide, Inc., 107 NLRB
1160, 1163, enfd. 219 F. 2d 46 (C.A. 2).
I do not understand the purpose of the second quotation from the Shea Chemical case,
in footnote 6 of the majority decision. It seems to imply that the Employer was not
justified in refusing to bargain with ABC during the pendency of the BCW petition be-
cause the Board ultimately held that this petition did not raise a "real representation
question ." The quotation from the Heide case, supra, negatives any such implication.
Nor do I understand that Shea Chemical was intended to overrule Heide.
"I do not regard the Daily Press case (112 NLRB 1434) cited by the majority as
necessarily dispositive of the present case . The facts in the two cases are distinguishable
in important respects . Thus in Daily Press , the rival petition sought to represent em-
ployees who were not in the unit for which the employer refused to bargain , the second
refusal to bargain did not occur until after the expiration of the certification year, and
the certified union did not rely on any argument that the employer was justified in refus-
ing to bargain during the periods in question . Moreover , in Daily Press an informal
settlement agreement of the certified union's 8(a) (5) charges had been reached and ,the
Board held that reasonable time had been given the employer and the union thereafter to
reach an agreement . There was, therefore , considerably less equitable reason than in this
case for applying a modern version of Allis-Chalmers to ,the facts of the Daily Press case.