Hamilton's Ltd.

National Labor Relations Board - Board Decisions

Mar 30, 1951

93 N.L.R.B. 1076 (N.L.R.B. 1951)

1076 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tion on behalf of its members, including these three Employers.5 As
it is thus clear that the contracts in question are not the result of col-
lective bargaining on a multiemployer basis by the Employers them-
selves, we find the circumstance relied upon by the Petitioner to be
without significance.
Upon the basis of the above facts, and the entire record, including
the absence of collective bargaining on a inultiemployer basis involving
these three Employers, we are of the opinion that the extent of integra-
tion between the three Companies is insufficient to warrant a single
unit composed of employees of all the Companies. We shall therefore
dismiss the petition.
Order
IT IS HEREBY ORDERED that the petition filed in the instant case be,
and the same hereby is, dismissed.
6In Retail Merchants Association of Terre Haute, Indiana, 83 NLRB 112, the Board
found inappropriate a unit embracing employees of the members of that association.
HAMILTON'S LTD., PETITIONER, and SAN DIEGO COUNTY FEDERATED
TRADES AND LABOR COUNCIL AND ITS AFFILIATES : COOKS AND
WAITRESSES, LOCAL 402; BUILDING SERVICE EMPLOYEES, LOCAL 102;
OFFICE WORKERS, LOCAL 139; BUTCHER WORKMEN, LOCAL 229;
BAKERY 'WORKERS, LOCAL 315; TEAMSTERS, LOCAL 542; RETAIL
CLERKS, LOCAL 1222. Case No. 21-101V-163. March 30, 1951
Decision and Order
Upon a petition duly filed under Section 9 (c) of the National
Labor Relations Act, a hearing was held before Daniel J. Harrington,
hearing officer. The hearing officer's rulings made at the hearing are
free from prejudicial error and are hereby affirmed.
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 Herzog and Members Murdock and Styles].
' The hearing officer properly denied the motion of the Unions that the hearing be
adjourned on the ground that the Board, not the Regional Director, is empowered to
conduct the investigation of petitions and decide if there is reasonable cause to believe
that a question of representation exists. The preliminary determination of whether there
is reasonable cause to believe that, a question of representation exists is an investigative
phase of the Board's work which the Board may properly vest in the Regional Director
just as the Board may delegate any duties except those which require the Board's exercise
of its final adjudicatory authority. The Procter and Gamble ilianufacturing Company,
78 NLRB 1043. Also see Evans V. International Typographical Union, 76 F. Supp.
881, at 887.
In view of our finding below on the question of the assertion of jurisdiction wherein
we rely only on the Respondent's shipments out of State, we find it unnecessary to pass
upon the hearing officer's revocation of that part of the subpoena daces tecum requested
by the Unions which related to the out-of-State purchases made by the Respondent.
93 NLRB No. 193.
HAMILTON'S LTD. 1077
Upon the entire record in this case, the Board finds :
1. The Employer is a California corporation engaged in that State
in the manufacture and sale on a retail basis of fancy foods, candy,
bakery goods, and liquors. During the period from November 1, 1949,
to October 31, 1950, it shipped to points outside the State of California,
primarily on the orders of local purchasers products amounting to
approximately $50,045 in value. Of this amount, about 15 percent
represented handling and postage charges which the Employer in-
corporates into the price of the goods. We find that the Employer
is engaged in commerce within the meaning of the National Labor
Relations Act and that it will effectuate the policies of the Act to assert
jurisdiction.2
2. No question affecting commerce exists concerning the representa-
tion of employees of the Employer within the meaning of Section 9 (c)
(1) and Section 2 (6) and (7) of the Act, for the following reasons:
The Unions moved at the hearing that the petition be dismissed
on the ground that they did not seek recognition by the Employer as
the bargaining agent of its employees, did not claim to represent a
majority of the employees of the Employer, and in fact, did not repre-
sent any of those employees. The Employer opposed the motion for
dismissal, asserting that the disclaimer of the Unions was not in good
faith.
In May and June 1950, shortly after a new management had taken
over the operations of the Employer, two meetings were held between
representatives of the Employer and representatives of the various
Unions herein involved. At these meetings the Unions proposed that
if the Employer would agree to recognize them as bargaining agents
for its employees, they would defer contractual demands until a later
time. The Employer rejected this proposal. In August 1950, the
Unions placed the Employer on their "We do not patronize" list and
set up a picket line at the premises of the Employer. In addition, the
Unions persuaded various firms to stop delivery of supplies to the
Employer. At a further meeting between the Employer and the
Unions held about October 16, 1950, the Unions proposed to discon-
tinue these 'activities and not to make any demands for recognition
until they represented 51 percent of the employees, if the Employer
would withdraw its petition herein and would agree to hire all new
employees through two of the Unions here concerned. The Employer
would not accede to this proposal. At the time of the hearing the
Unions were still engaging in the picketing and other activities.
It is the contention of the Employer that the action of the Unions
in continuing the picketing and related measures demonstrates that
the disclaimer of the Unions is not bona fide. On the other hand, the
2 Stantslavs Implement and Hardware Compangj, Limited, 91 NLRB 618.
1078 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Unions assert that they have not made and are not now making any
claim for recognition. They contend that their activities in connec-
tion with the Employer were for the sole purpose of organizing the
employees of the Employer.
The parties agree that the Unions have never represented any em-
ployees of the Employer. At the hearing and in their motions to dis-
miss, the Unions stated that they "unequivocally and expressly dis-
claim any and all interest in the representation of the present em-
ployees of the Employer"; that they expressly disclaim any current
right to recognition as collective bargaining representatives of the
employees of the Employer; and that they are making no claim for
bargaining and no claim for recognition. The Employer is conse-
quently under no obligation to recognize the Unions as the representa-
tives of its employees 3 The Employer asserts, however, that the
Unions' disclaimer of representation is not in good faith.
The Board has held that a union's withdrawal of its claim to repre-
sentation may be made at the hearing,' provided it is clear and un-
equivocal and the union's conduct does not otherwise cast substantial
doubt upon the validity of its disclaimer to representation.5 The facts
in this case reveal that during their meeting with the Employer in
October 1950, the Unions, in effect conceded that they did not represent
a majority of the employees, and agreed to abandon their demand
for recognition, if the Employer would grant other concessions-upon
the merits of which we need not here pass that might enable the Unions
to achieve majority representative status. Under these circumstances,
we are unable to find that the Unions by their picketing and related
conduct have cast substantial doubt upon their clear and unequivocal
disclaimer currently to represent the Employer's employees. Rather,
we are of the opinion that the Unions' conduct in this case constituted
nothing more than a determined effort to organize the employees in-
volved and thereby become the majority bargaining representatives.
The Board has held that there is nothing inconsistent between a valid
disclaimer of present majority status and continued organizational
activity whose ultimate objective may indeed be to obtain that status.6
The principles enunciated in the cited cases are applicable and control-
ling in this case.
We find that there is no present claim for recognition as the exclusive
bargaining representative of the Employer's employees and therefore
there exists no question concerning representation. Accordingly, we
shall dismiss the petition.
' Ny-Lint Tool & Manufacturing Co., 77 NLRB 642.
' Ny-Lint Tool & Manufacturing Co., supra.
See Coca-Cola Bottling Co . of Walla Walla, Washington, 80 NLRB 1063.
O John F Hubach and C R. Parkinson, d/b/a Hubach and Parkinson Motors, et al.,
88 NLRB 1202; Bur-Bee Company-Walla Walla, Inc., and Bur-Bee Company-Pasco, Inc,
90 NLRB 9. J
R. L.- POLK & CO. 1079
Order
IT IS HEREBY ORDERED that the petition herein be, and it hereby is,
dismissed.
R. L. POLK & Co . and OFFICE EMPLOYEES INTERNATIONAL UNION, LOCAL
227, AFL, PETITIONER . Case No. 9-RC-880. March 30, 1951
Supplemental Decision and Order
On October 20, 1950, pursuant to a Decision and Direction of Elec-
tion issued by the Board herein,' an election by secret ballot was con-
ducted under the direction and supervision of the Regional Director
for the Ninth Region, among the employees in the unit found appro-
priate. Upon completion of the election, a tally of ballots was furn-
ished the parties. The tally shows that, of the 731 valid votes counted,
289 were for, and 442 against, the Petitioner, and there were 21 chal-
lenged, and 4 void, ballots.
On October 23, 1950, the Petitioner filed objections to conduct affect-
ing the results of the election. In accordance with the Rules and
Regulations of the Board, the Regional Director conducted an investi-
gation, and, on February 15, 1951, issued and served upon the parties
his report on objections to election. In his report, the Regional
Director found that the Employer engaged in activities interfering
with, and raising substantial and material issues with respect to the
conduct of, the election, and recommended that the election be set
aside. The Employer timely filed exceptions to the Regional Direc-
tor's report.
The Regional Director's recommendation that the election be set
aside is based essentially on the following findings : On September
.5, about a month after the hearing in this case, the Employer promised
the employees a wage increase of 5 cents an hour, and the adoption of
a new wage progression schedule. On September 25, the Board issued
its Decision and Direction of Election and, on October 5, the Employer
announced the increase and new schedule, effective retroactively to
September 4. In connection with this announcement, the Employer
stated that these benefits were granted because of the increase in the
cost of living, the rates paid for comparable work by other companies
in the area, and the efficiency of the plant employees 2 The Regional
Director found that these benefits were "announced and put into effect
at the plant involved herein before similar changes at the Employer's
191 NLRB 443.
2 Although the Employer contends that the benefits were also granted to stem a high
personnel turnover, the Regional Director found that such turnover was not substantially
higher than previously experienced by the Employer and not followed by any wage
Increases.
93 NLRB No. 204.