Fisher Grocery Co.

National Labor Relations Board - Board Decisions

Feb 18, 1954

107 N.L.R.B. 1197 (N.L.R.B. 1954)

FISHER GROCERY COMPANY 1 197
established in the Western Electric case,' we find that the
negotiation of modifications in the existing agreement did
not "open up" the contract to the Petitioners' prematurely
filed petition.
The Petitioners' last contention, that the contract was
breached by the illegal strike, is also without merit. Whatever
the Employer's right to rescind the contract for the Union's
breach of the no-strike clause, we are satisfied that there was
no rescission in this case.2 The attorney ' s statement that he
considered the contract no longer in effect because of the strike
appears to have been an assertion of his client's rights rather
than a clear and unambiguous expression of termination. This
is evidenced by the fact that immediately upon the cessation of
the strike, both parties resumed negotiations for modification
of the existing agreement without questioning the continued
validity of that agreement. Nor has the Employer contended in
this proceeding that it rescinded the contract because of the
employees ' strike.
For the foregoing reasons, we find that the 1950 contract as
automatically renewed to June 30, 1954, is a bar to this pro-
ceeding . We shall therefore dismiss the petition without prej-
udice to the filing of a new petition a reasonable time before
the automatic renewal date of the existing contract.
[The Board dismissed the petition.]
I Western Electric Company, Inc., 94 NLRB 54.
2See 12 American Jurisprudence 1028.
FISHER GROCERY COMPANY and RETAIL CLERKS
INTERNATIONAL ASSOCIATION, LOCAL NO. 536, AFL.
Case No. 13 -RM-171. February 18, 1954
SUPPLEMENTAL DECISION AND CERTIFICATION OF
RESULTS OF ELECTION
Pursuant to a Decision and Direction of Election issued by
the Board on September 25, 1953,' an election by secret ballot
was conducted on October 21, 1953, under the supervision of
the Regional Director for the Thirteenth Region, among em-
ployees in the unit found appropriate by the Board. Upon com-
pletion of the election, the parties were furnished with a tally
of ballots which showed that of approximately 108 eligible
voters, 105 cast valid ballots, of which 41 were for and 64
against the Union. There were 4 challenged ballots which are
not sufficient in number to affect the results of the election.
On October 24, 1953, the Union filed timely objections to
conduct allegedly affecting the results of the election. In
'Not reported in printed volumes of Board Decisions and Orders.
107 NLRB No. 255.
337593 0 - 55 - 77
1 198 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
accordance with the Board's Rules and Regulations, the Re-
gional Director found that the Union's objection #2 raised
substantial and material issues, and recommended that this
objection be sustained and the election be set aside. He also
found that the remaining objections were without merit and rec-
ommended that they be dismissed. Thereafter, the Employer
filed timely exceptions to the Regional Director's report. No
exceptions were filed by the Union.
Upon the entire record in the case, the Board finds:
After working hours on October 19, 1953, which was 2 days
before the election, the Employer made an antiunion, nonco-
ercive speech' to employees at one of its stores. The speech
was made upon the request of employees, and attendance at
the meeting was voluntary. The Regional Director, relying on
cases which applied the Bonwit Teller doctrine,' found that
the Employer interfered with its employees' free choice in
the election because the Employer denied the Union's request
for permission to address these employees on the Employer's
premises.
In the recent Livingston Shirt decision,4 the Board abandoned
the Bonwit Teller doctrine. In the companion Peerless Ply-
wood Company case,5 the Board ruled that during the 24-hour
period before the time scheduled for an election there should
be no election speeches on company time to massed assem-
blies of employees. Explaining the Peerless Plywood rule, the
Board pointed out that a noncoercive speech made prior to the
24-hour period will not be held to interfere with an election,
and said: "the rule does not prohibit employees or unions from
making campaign speeches on or off company premises during
the 24-hour period if employee attendance is voluntary and on
the employees ' own time."
It follows from these pronouncements that the Employer's
noncoercive speech of October 19 did not interfere with the
election herein. The speech was on the employees' own time,
and attendance at the gathering was voluntary. Accordingly,
even had the speech been made during the 24-hour period
preceding the time scheduled for the election, it would have
been unobjectionable; but here, indeed, the speech was made
even before the beginning of the critical 24-hour period.
Accordingly, we find that the Union's objections do not raise
substantial and material issues with respect to the conduct of
the election and we do not adopt the Regional Director's
recommendation that the election be set aside.6
2 In view of our disposition of this case, we find it unnecessary to rule upon the Employer's
several contentions, one of which is that there was no speech, but a mere question and
answer period.
3Bonwit Teller, Inc., 96 NLRB 608, remanded 197 F. 2d 640 (C. A. 2), employer's petition
for certiorari denied 345 U S 905.
4107 NLRB 400.
5 107 NLRB 470.
6Although Member Murdock dissented in part from the majority decision in the two
foregoing cited cases, he now deems himself bound and accordingly has signed thiB decision.
COLUMBIA BAKING COMPANY 1199
As the Union failed to receive a majority of the valid ballots
cast, we shall certify the results of the election.
[The Board certified that a majority of the valid ballots was
not cast for Retail Clerks International Association , Local No.
536, AFL, and that the said labor organization is not the ex-
clusive representative of the employees of the Employer in the
appropriate unit.]
COLUMBIA BAKING COMPANY and LOCAL NO. 759, INTER-
NATIONAL ASSOCIATION OF MACHINISTS, AFL, Petitioner.
Cases Nos . 10-RC -2473 and 10-RC-2474 . February 19, 1954
DECISION AND ORDER
Upon separate petitions duly filed under Section 9 ( c) of the
National Labor Relations Act, a consolidated hearing was held
before John S. Patton , 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 these cases , the Board finds:
1. The Employer is engaged in commerce within the mean-
ing of the Act.1
2. The labor organizations -2 involved claim to represent
employees of the Employer.
3. No question affecting commerce exists concerning the
representation of employees of the Employer within the mean-
ing of Section 9 (c) (1) and Section 2 (6) and ( 7).of the Act, for
the following reasons:
The Petitioner seeks to represent separate units of (1) all
maintenance employees including utility employees ; and (2) all
garage mechanics and their helpers at the Employer ' s Jack-
sonville , Florida , plant. Alternately , the Petitioner would
represent the two groups of employees in a single unit. The
Employer and the Intervenor contend that the employees sought
by the Petitioner should remain with the production employees
in the overall plantwide unit presently represented by the
Intervenor.
The Intervenor , as the result of a consent election, 3 was
certified on August 26, 1949, as bargaining representative for
a unit of all employees of the Employer." On September 6,
'Although Chairman Farmer and Member Rodgers join in this decision, they are not to be
deemed thereby as agreeing with the Board ' s past jurisdictional standards.
2 Local 482, Bakery & Confectionery Workers International Union of America, AFL, herein
called the Intervenor , was permitted to intervene in Case No. 10-RC-2473 upon the submission
of an adequate showing of interest , and in Case No. 10-RC-2474 on the basis of a current
contract.
3Case No. 10-RC-693.
4 The unit was described as "All employees of the company at its Jacksonville, Florida.
plant, excluding office employees , executives , professional employees , guards, sales employees
and all supervisory employees as defined in the Act."
107 NLRB No. 252.