Evans Milling Co.

National Labor Relations Board - Board Decisions

Jun 6, 1951

94 N.L.R.B. 1127 (N.L.R.B. 1951)

EVANS MILLING COMPANY 1127
The Petitioner asserts that, as the maintenance pipe fitters hav&
served over 5 years at their respective assignments, they may be deemed
journeymen. However, as already mentioned, these employees have
undergone no formal training or apprenticeship program and it ap-
pears that they neither possess, nor exercise, the wide gamut of skills
of journeymen craftsmen. Under all the circumstances, we are of
the opinion that the three maintenance pipe fitters do not comprise a
true craft group. Moreover, the requested unit fails to include other
employees working under the same immediate direction and regularly
performing some like duties. As we perceive no compelling reason
for severing the maintenance pipe fitters on a craft or other basis, we
^;rhall;dismiss the petition herein.e
Order
IT IS HEREBY ORDERED that the instant petition be, and it hereby is,
dismissed.
8 See Monsanto Chemical Company, 78 NLRB 1249 Sylr,ania Dcr,eston, American Viscose
Corporation, 84 NLRB 202 Cf Sawyer Biscuit Company, Division of United Biscuit
Company of America, 92 NLRB 1447 ; The Nestle Company, Inc, 92 NLRB 1250.
EVANS MILLING COMPANY and AMERICAN FEDERATION OF GRAIN
MILLERS, AFL, PETITIONER . Case No. 35-RC-428. June 6, 1951
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 Alan Sinsheimer, Jr., hearing
officer. The hearing officer's rulings made at the hearing are free from
prejudicial error and are hereby affirmed.'
Upon the entire record in this case, the Board finds:
1. The Employer is engaged in commerce within the meaning of the
Act.
2. The labor organizations involved claim to represent certain em-
ployees of the Employer.2
3. The Intervenor, following a Board-directed election, was certi-
fied on September 6, 1949, as the collective bargaining representative
' The Employer 's motion to dismiss the petition on the ground of contract bar was
referred by the hearing officer to the Board . This motion is hereby denied for the reasons
stated in paragraph numbered 3, infra. The hearing in this matter closed on November
9, 1950 Thereafter the Employer moved that certain evidence arising after that date,
which purports to show that the Intervenor is an active labor organization , be incorpo-
rated into the record The Petitioner also moved , after the close of the hearing, that the
Board consider evidence of the granting of a new wage scale by the Employer in December
1950, which allegedly opens tip the contract so as to warrant an election . In view of
our holding herein , we deem it unnecessary to rule upon these motions.
2 The hearing officer properly granted intervention to the Employees Association, Inc.
of Evans Milling Company, herein called the Intervenor , on the basis of a contractual
interest
94 NLRB No. 164.
1128 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of the Employer's production and maintenance employees. There-
after the Employer and the Intervenor signed a.contract effective
November 1, 1949, for the term of 1 year and automatically renewable
for yearly periods in the absence of written notice of termination given
by either party at least 60 days before the expiration date of any
contract year. The petition herein was filed on August 9, 1950, and
"as timely with respect to the Mill B date of the contract which was
September 2, 1950. The Employer and the Intervenor nevertheless
assert their contract as a bar to the petition, on the basis of Board
decisions holding that a contract automatically renewed during the
certification year bars a petition although the petition was filed
before the Mill B date of the contract.' The Petitioner contends that
the contract is not a bar because its renewal was prevented by a valid
termination notice given to the Employer by the Intervenor before the
'_11111 B date, and also because the Intervenor is defunct. In reply the
Employer denies that it received a termination notice, and argues that
the Intervenor is not defunct.
On August 20, 1950, the Intervenor held a regular meeting at-
tended by 41 members,'' who by a vote of 36 to 2 with 3 abstentions,
adopted a motion to dissolve the Intervenor. Three or four days later,
Lay, then the president of the Intervenor, personally discussed the
events of the meeting with Barrett, the Employer's vice president and
general superintendent, and requested a conference with management.
-Barrett informed Lay that Evans, the Employer's president, was out
of town and that he did not know when a meeting could be held. Bar-
rett further advised Lay to send a letter requesting a meeting, and
Lay stated that a letter would be sent informing the Employer of the
action taken by the Intervenor at the August 20 meeting.
Following his conversation with Barrett, Lay directed the Inter-
venor's secretary to draft a letter to be sent to the Employer. The
following letter was accordingly prepared and signed by both Lay
and the Intervenor's secretary :
Evans Milling Co.
1730 IV. Michigan St.
Indianapolis, Ind.
Mr. R. B. EVANS:
The Employee's Ass'n. of Evans Milling Co. Inc., on Aug.. 20,
1950 held a meeting at our regular meeting hall.
The employee's present were thirty eight members. There are
now (138) one hundred and Thirty eight members in the Ass'n.
Our last account of our members as of June 30, 1950.
3 Texas Paper Box Manufacturing Company, 75 NLRB 799
1 The usual attendance at meetings is 8 to 15 members
EVANS MILLING COMPANY 1129
At our meeting of thirty eight members there was a motion
made to desolve our present union. The employee's held a vote
by secret ballot and vote'd thus. Thirty six members voted to
desolve our present union and two members vote'd to keep the
(Employee's Ass'n.).
Our contract with your firm state's that we Inust notify you (60),
sixty day's before Nov. 1, 1950.
[s] E \ EIIETT LAY Pres.
Employee's Ass'n. Inc.
[s] ROLAND L. Rici Act. Sect.
Employee's Assn. Inc.
This letter was enclosed in an envelope which bore the following
address :
Mr. R. B. Evans
c/o Evans Milling Co.
1730 W. Michigan St.
Indianapolis, Indiana
The Intervenor's name also appeared on the envelope as the return
addressee.
The Petitioner contends that the foregoing letter was timely notice
to the Employer by the Intervenor of its intention not to renew the
bargaining contract. In opposition thereto the Employer points to
the absence of any specific reference of an intention to terminate the
contract in either the letter or the minutes of the Intervenor's August
20 meeting. Although the letter does not contain language expressly
terminating the contract, we nevertheless disagree with the Employer
that the letter fails to disclose such an intent. Nowhere in the con-
tract is there a provision requiring the Intervenor to inform the
Employer of its decision to be dissolved or regarding any other action
taken at its meetings. The Intervenor's purpose, therefore, in fur-
nishing the Employer with such information becomes meaningful
only when read in connection with the concluding paragraph of the
letter. That paragraph specifies the terminal date of the contract
and mentions the Intervenors obligation under the contract to give
60 days' notice in, advance of that date. This necessarily refers to^
the notice required by the contract to forestall its automatic renewal,
for at no other place in the contract is there provision for the giving
of any notice. As the Intervenor's dissolution is, in our opinion, in-
consistent with an intention on its part to renew a contract to which
it is a party, it is thus apparent that the purpose of the letter was
to inform the Employer of the vote to dissolve and to give notice
within the required period that the contract was to terminate on
1130 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
November 1, 1950. We conclude that the Intervenor's letter was a
valid notice of an intention to terminate the contract.
There is conflicting testimony in the record concerning the events
surrounding the mailing and the attempted delivery of the Inter-
venor's letter. It is clear, however, that, no representative of the Em-
ployer. opened or read the letter before the hearing. The Petitioner
nevertheless contends, in effect, that the'Employer should be charged
with knowledge of the contents of the letter because its acceptance
was unjustifiably refused by the Employer. The Employer asserts
that for the letter to constitute notice it must have been actually
received and read, and that these requirements were not fulfilled be-
cause of the Intervenor's neglect in addressing the letter to R. B.
Evans rather than to the Employer. The Employer alleges, more-
over, that the letter could not in any event be a timely notice, because
the first time the post office attempted delivery was after September
2, 1950, the Mill B date of the contract.
Having carefully considered all the testimony and the numerous-
exhibits in the record, we find that the letter was registered, insured,
and posted by the Intervenor at the Haughville substation of the
Indianapolis, Indiana, post office on August 29, 1950. On the follow-
ing day (August 30) it was delivered by a post-office carrier to the
Employer's office where it was presented-in an envelope bearing
the Intervenor's name to Evans' secretary for acceptance. She, how-
ever, announced to the carrier that Evans was absent and that there
was no one present, authorized to sign the required receipt and to
accept registered mail for him. Before conveying this information
to the carrier, the secretary discussed the matter with Barrett, the
afore-mentioned vice president and general superitendent, who, upon
being informed by the secretary that the letter was addressed to
Evans personally, instructed her not to sign. The carrier thereupon
returned the letter to the post office. Two further unsuccessful at-
tempts at delivery were made on September 6 and 8 while Evans was
still absent, and the letter was subsequently returned to the sender.
In explanation of their decision not to accept the letter, Barrett and
Evans' secretary testified that there is a long-standing rule in their
office, which forbids any person from signing receipts for and accept-
ing registered mail which.is personally addressed to Evans, unless
he has given express authority to do so. In this case there was no
such authority. They stated further that they regarded the letter
as intended personally for Evans.
On the basis of the foregoing facts, and on the entire record in
this case, we do not believe that the refusal of the August 29 letter
was justified, or that the contract between the Employer and the
EVANS MILLING COMPANY 1131
-,Intervenor should bar this proceeding . The Employer 's motion to
.dismiss the petition is accordingly denied.
. A question affecting commerce exists concerning the representa-
tion of the employees of the Employer within the meaning of Section
9 (c) (1) and Section 2 (6) and (7) of the Act.
4. In accord with the agreement of the parties, we find that all
production and maintenance employees at the Employer 's Indian-
apolis, Indiana, plant, including the janitor , but excluding office and
clerical employees , guards, professional employees , and supervisors
as defined in the Act, constitute a unit appropriate for the purposes
,of collective bargaining within the meaning of Section 9 (b) of the
Act.
Direction of Election 5
As part of the investigation to ascertain representatives for the
-purposes of collective bargaining with the Employer, an election by
-secret ballot shall be conducted as early as possible, but not later than
30 days from the date of this Direction, under the direction and
supervision of the Regional Director for the Region in which this
case was heard, and subject to Sections 102.61 and 102.62 of National
Labor Relations Board Rules and Regulations, among the employees
in the unit found appropriate in paragraph numbered 4, above, who
were employed during the payroll period immediately preceding the
date of this Direction of Election, including employees who did not
work during said payroll period because they were ill or on vacation
or temporarily laid off, and employees in the military services of the
United States who appear in person at the polls, but excluding those
employees who have since quit or been discharged for cause and have
not been rehired or reinstated prior to the date of the election, and
also excluding employees on strike who are not entitled to reinstate-
ment, to determine whether (or not) they desire to be represented
for purposes of collective bargaining, by American Federation of
Grain Millers, AFL, or by Employees Association of Evans Milling
Company, Inc., or by neither.
MEMBER MURDOCK , dissenting :
I disagree with the majority holding that the contract between the
Employer and the Intervenor should not bar this proceeding. The
-only ground advanced by my colleagues to support their view is that
the Employer was not justified in refusing to accept the Intervenor's
' The compliance status of the Intervenor has lapsed since the hearing in this matter.
The Regional Director is hereby instructed to delete the name of the Intervenor from the
ballot in the election directed herein if the Intervenor has not, within 2 weeks from this
date , renewed its compliance with Section 9 (f), (g), and (h) of the Act. No election
shall be scheduled within the 2-week period allowed until and unless compliance has been
determined
1132 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
letter from the mail carrier on August 30, 19,50. This necessarily pre-
supposes that Evans' secretary and Barrett possessed knowledge con-
cerning the letter which, coupled with their refusal to accept the let-
ter, amounts to a willful avoidance of the Intervenor's notices I
would be remiss in adopting such reasoning for the record shows
otherwise.
The uncontroverted testimony of Evans' secretary and Barrett re-
veals the existence of the Employer's long-standing rule that regis-
tered letters to Evans should not be accepted in his absence unless
he had expressly authorized such acceptance. lnl this instance there
had been no such authorization. The address on the envelope in-
disputably was in the form of which it would appear on a personal
letter to Evans sent to him at the plant.' The-conclusion by Evans'
secretary that this was a personal letter to her superior was perfectly
reasonable, and her consequent refusal to accept it was a dutiful com-
pliance with her superior's proper orders. The same is also true as to
Barrett. It is important to note that had Barrett actually looked at
the envelope and seen the Intervenor's name thereon as the return ad-
dressee, I would unhesitatingly' have found that he should have ac-
cepted the letter, for then I would have been satisfied that the evi-
dence disclosed knowledge on his part as to the nature of the letter.
But the record is explicit on this point. Barrett did not examine the
envelope, and was only informed by Evans' secretary that the letter
was addressed to Evans. Although Evans' secretary probably saw the
Intervenor's name on the envelope, it cannot be reasonably inferred
from this circumstance alone that she knew that the letter pertained
to the general business of the Employer and was not personally in-
tended for Evans. There is not a shred of evidence in the record
which indicates any knowledge on her part concerning the relations
between the Employer and the Intervenor, and there is no reason,
6 Since the record shows that the Employer did not receive actual notice, for the letter
was ultimateli returned to the Intervenor unopened, the majority holding can be sustained
only by charging the Employer with consti uctive knowledge This theory can only be
invoked where it is disclosed that a party possesses information which imposes upon him
the duty of making further inquiry which would lead him to ascertain the facts with
which he is sought to be charged 66 Corpus Jurrs Secundurn 660, Sec 11. Cf. Haldane
et at v United States, 69 Fed 819.
9 Two recent Board decisions provide precedent for the view that the Intervenor's letter
was addressed to Evans, pei sonally In Carborundum Company, 78 NLRB 91, the Board
held that a letter addressed to an employer, but directed "attention of Plant Manager
Forse," was intended for the plant manager, and constituted notice to the employer only
when read by the plant manager the day after it was delivered to the employer' s address
In Snyder Engnieci inq Coi poratson , 90 NLRB 78 3 , the Board held that a letter addressed
to "Air J Al Caldwell. Secretary Treasuior of Snyder Engineering Corpoiation" at the
employer's business address was a letter addressed to J Al Caldwell. personalli, and that
the employer was justified in refusing to accept the letter when it was delivered because
J M Caldwell was no longer employed by the eniplover I consider these decisions to be
controlling on the facts presented in the instant case
W. T. GRANT COMPANY 1133
therefore, why she should have concluded that this letter was not in-
tended personally for Evans.
In view of the foregoing, I am satisfied that the refusal to accept
the Intervenor's letter under the particular circumstances of this
case was justified. Because the Employer had neither actual nor
constructive notice of the Intervenor's letter before September 2, 1950,
I would find that the Intervenor had failed to give timely notice to
the Employer of its intention to terminate the contract, and that the
contract by its terms was automatically renewed on that date. Ac-
cordingly, I would find that the contract constitutes a bar to this pro-
ceeding and would, therefore, dismiss the petition.
MEMBER REYNOLDS took no part in the consideration of the above De-
cision and Direction of Election.
W. T. GRANT COMPANY and RETAIL CLERKS UNION, LOCAL 428, AFL.
Case No. 20-CA--378. June 7, 1951
Decision and Order
On November 30, 1950, Trial Examiner William E. Spencer issued
his Intermediate Report in the above-entitled proceeding, finding
that the Respondent had engaged in and was engaging in certain un-
fair labor practices, and recommending that it cease and desist there-
from and take certain affirmative action, as set forth in the copy of
the Intermediate Report attached hereto. Thereafter, the Respondent
filed exceptions to the Intermediate Report and a supporting brief.
The Board 1 has reviewed the rulings of the Trial Examiner at the
hearing and finds that no prejudicial error was committed. The rul-
ings 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 recommendations of the
Trial Examiner with the modifications and additions set forth below.2
1. The Trial Examiner found, and we unanimously agree, that the
Union represented a majority.of the Respondent's employees in a
certain appropriate collective bargaining unit on and after January
I Pursuant to the provision of Section 3 (b) of the National Labor Relations Act, the
Board has delegated its powers in connection with this case to a three-member panel
[ Chairman Herzog and Members Houston and Reynolds].
2 The Respondent's unopposed motion to correct the stenographic transcript of the hear-
ing is hereby granted. Its request for oral argument is denied because the record, excep-
tions and brief, in the opinion of the Board, adequately reflect the issues and positions
of the parties.
94 NLRB No. 145.