Meat and Provision Drivers, Local 626, Etc.

National Labor Relations Board - Board Decisions

Feb 10, 1960

126 N.L.R.B. 572 (N.L.R.B. 1960)

572 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Engineer Missiles
Metallurgical Engineer Material
Metallurgical Engineer Estimating
Metallurgical Engineer Material and Specific Customer Service
Engineer Fittings and Specifications
Metallurgical Engineer Research
Engineering Department
Engineers Sr and Jr.
Planning Department
Project Planning Engineers
Product Design Group of Fittings Dvviswn
Stress Analyst and Designer
Meat and Provision Drivers , Local 626, International Brother-
hood of Teamsters, Chauffeurs , Warehousemen and Helpers
of America, Independent [Washington Rendering Company]
and Clarence L. Brown & Associates. Case No 21-CB-1351
February 10, 1960 1
DECISION AND ORDER
On September 4, 1959, Trial Examiner Martin S Bennett issued
his Intermediate Report in this case, finding that the Respondent had
engaged in and was engaging in unfair labor practices in violation of
Section 8 (b) (3) of the Act and recommending that it cease and desist
therefrom and take certain affirmative action, as set forth in the copy
of the Intermediate Report attached hereto Thereafter, the Respond-
ent filed exceptions to the Intermediate Report, and a supporting
brief
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 Jenkins 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 Inter-
mediate Report, the exceptions and brief, and the entire record in the
case, and hereby adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner
The complaint alleged, and the Trial Examiner found, that Re-
spondent violated Section 8(b) (3) of the Act by failing to comply
with the requirements of Section 8(d) (1), (3), and (4) i at a tune
when a collective-bargaining agreement which it executed on Novem-
iSection 8(d) provides in part " That where there as en effect a eoflectece-
bargaeenng contract covering employees in an industry affecting commerce, the duty to
126 NLRB No 72
MEAT AND PROVISION DRIVERS, LOCAL 626, ETC. 573
ber 17, 1958, with the Employer, Washington Rendering Company,
was still in effect.' As a defense to the charges herein, Respondent
asserts that it was under no obligation to comply with these require-
ments because its contract, which was executed during the pendency
of another union's representation petition, was unlawful under Board
decisions' and therefore did not constitute a "collective-bargaining
contract" within the meaning of Section 8 (d). In agreement with the
Trial Examiner, we find no merit in this defense.
In the prior representation proceeding, Respondent intervened and
urged its contract as a bar. In its decision in that case,4 the Board
held that Respondent's contract, which was executed 11 days after the
filing of the petition, was untimely in regard to that petition and under
the Board's contract 'bar rules could not operate as a bar to an election.
The Board did not, in the representation case, purport to pass on the
validity or effect of Respondent's contract for other purposes.' In
the ensuing election, Respondent requested that its name be placed
on the ballot, was successful in the election, and was certified by the
Board as majority bargaining representative pursuant to Section 9 (a)
of the Act. No objections to that election were filed, nor were any
unfair labor practice charges instituted.
Now, having requested and received a Board certification, Respond-
ent alleges for the first time that, in effect, it was unlawfully assisted,
and therefore that its contract with the Employer was unlawful and
not a "collective-bargaining contract" for purposes of Section 8(d).
We do not believe that the statutory duty to bargain imposed by that
section can be so easily evaded. As the Board has held in other situ-
ations, a party may not assert misconduct in which it participated as
bargain collectively shall also mean that no party to such contract shall terminate or
modify such contract, unless the party desiring such termination or modification-
(1) serves a written notice upon the other party to the contract of the proposed
termination or modification sixty days prior to the expiration date thereof, or in
the event such contract contains no expiration date, sixty days prior to the time it
is proposed to make such termination or modification ;
(3) notifies the Federal Mediation and Conciliation Service within thirty days
after such notice of the existence of a dispute , and simultaneously therewith notifies
any State or Territorial agency established to mediate and conciliate disputes within
the State or Territory where the dispute, occurred , provided no agreement has been
reached by that time ; and
(4) continues in full force and effect, without resorting to strike or lockout, all
the terms and conditions of the existing contract for a period of sixty days after
such notice is given or until the expiration date of such contract , whichever occurs
later. . . [Emphasis supplied.]
s This contract was to continue until September 1, 1959, and thereafter from year to,
year, absent 60 days ' notice to terminate.
8 See, e . g., Shea Chemical Corporation , 121 NLRB 1027 . Respondent contends further
that its November 17, 1958, contract was unlawful as the fruit of a prior 8 (d) violation,
relative to Respondent ' s earlier contract with the Employer However , the Board has
not held a contract which follows an 8(d ) violation to be itself unlawful See Bronvard
Builders' Exchange, Inc., 122 NLRB 1008
A Case No. 21-RC-5503 ( April 1959 , unpublished).
5 See Boston Machine Works Company, 89 NLRB 59
574 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
a defense to actions otherwise in violation of the Acts In the circum-
stances of this case, we hold that Respondent is estopped from assert-
ing that its November 17, 1958, contract was unlawful. As this
contract was in effect on the date of Respondent's strike, we find that
Respondent's failure to comply with the requirements of Section
8(d) (1), (3), and (4) constituted a violation of Section 8(b) (3)
of the Act.
ORDER
Upon the basis of the entire record in this case, and pursuant to
Section 10(c) of the National Labor Relations Act, as amended, the
National Labor Relations Board hereby orders that the Respondent,
Meat and Provision Drivers, Local 626, International Brotherhood
of Teamsters, Chauffeurs, Warehousemen and Helpers of America,
Independent, its officers, representatives, agents, successors, and
assigns, shall:
1. Cease and desist from :
(a) Refusing to bargain collectively with Washington Rendering
Company by : (1) Failing to serve written notice to said company of
the proposed termination or modification of any contract 60 days
prior to the expiration date thereof, or, absent any expiration date,
60 days prior to the time it is proposed to make such termination or
modification; (2) failing to notify the Federal Mediation and Con-
ciliation Service and any appropriate State agency, within 30 days
of the aforesaid notice, that a dispute exists, provided no agreement
has been reached by that time; and (3) failing to continue in full
force and effect, without resort to a strike, all the terms and conditions
of an existing contract for a period of 60 days after such notice is
given or until the expiration date of such contract, whichever occurs
later.
(b) Engaging in, or causing or instructing the employees of Wash-
ington Rendering Company to engage in, a strike, for the purpose of
modifying or terminating a collective-bargaining contract, without
first having complied with the requirements of Section 8(d) of the
Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Post in conspicuous places at its business offices copies of the
notice attached hereto marked "Appendix."' Copies of said notice,
to be furnished by the Regional Director for the Twenty-first Region,
shall, after being duly signed by an authorized representative of
Respondent Union, be posted by said Respondent immediately upon
receipt thereof, and be maintained by it for a period of 60 consecutive
e Cf. Underwood Machinery Company, 74 NLRB 641, footnote 6, enfd. 179 F. 2d 118,
121 (C.A. 1). See also Franks Bros . Company v . N.L R B ., 321 U.S 702, 704
a In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order."
MEAT AND PROVISION DRIVERS, LOCAL 626, ETC. 575
days thereafter , in conspicuous places , including all places where
notices to members are customarily posted. Reasonable steps shall
be taken by the Respondent to insure that the said notices are not
altered, defaced, or covered by any other material.
(b) Mail to the Regional Director for the Twenty-first Region
signed copies of the notice attached hereto marked "Appendix," for
posting at the offices of Washington Rendering Company, said com-
pany willing, at all locations where notices to employees are custom-
arily posted.
(c) Notify the Regional Director for the Twenty-first Region, in
writing, within 10 days from the date of this Order, what steps they
have taken to comply herewith.
APPENDIX
NOTICE TO OUR MEMBERS , AND TO EMPLOYEES OF
WASHINGTON RENDERING COMPANY -
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby give notice that :
WE WILL NOT refuse to bargain collectively with Washington
Rendering Company by : (1) Failing to serve written notice to
said Company of the proposed termination or modification of
any contract 60 days prior to the time it is proposed to make such
termination or modification; (2) failing to notify the Federal
Mediation and Conciliation Service and any appropriate State
agency, within 30 days of the aforesaid notice, that a dispute
exists provided no agreement has been reached by that time; and
(3) failing to continue in full force and effect, without resort to
a strike, all the terms and conditions of an existing contract for a
period of 60 days after such notice is given or until the expira-
tion date of such contract, whichever occurs later.
WE WILL NOT engage in, or cause or instruct the employees of
Washington Rendering Company to engage in, a strike , for the
purpose of modifying or terminating a collective -bargaining
contract , without first having complied with the requirements of
Section 8 (d) of the Act.
MEAT AND PROVISION DRIVERS , LOCAL 626,
INTERNATIONAL BROTHERHOOD OF TEAMSTERS,
CHAUFFEURS , WAREHOUSEMEN AND HELPERS
OF AMERICA , INDEPENDENT,
Labor Organization.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
576 DECISIONS ,OF NATIONAL LABOR RELATIONS BOARD
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
This proceeding was heard at Los Angeles, California , on June 22 and 23, 1959,
pursuant to a complaint of the General Counsel against Respondent, Meat and
Provision Drivers, Local 626 , International Brotherhood of Teamsters , Chauffeurs,
Warehousemen and Helpers of America , Independent . The issue litigated was
whether Respondent engaged in unfair labor practices within the meaning of Section
8(b)(3) of the Act. At the close of the hearing, the parties presented oral argu-
ment and waived the right to file briefs.
Upon the entire record in the case, and from my observation of the witnesses, I
make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE EMPLOYER
Morris Gurewitz, doing business as Washington Rendering Company, is a sole
proprietorship engaged in the business of rendering fats at Los Angeles, California.
During the 12-month period prior to the issuance of this complaint, the Employer
shipped products valued in excess of $50,000 to Baker Rendering Company in
California. During the same period, Baker Rendering Company directly shipped
products valued in excess of $50,000 to points outside the State of California. I find
that the operations of the Employer affect commerce.
II. THE LABOR ORGANIZATION INVOLVED
Meat and Provision Drivers, Local 626, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America, Independent, is a labor or-
ganization admitting to membership the employees of the Company.
III. THE UNFAIR LABOR PRACTICES
A. The issue
The sole issue herein is whether Respondent unilaterally terminated a contract
with the Company and thereafter picketed the premises of the Company to obtain
a new contract without complying with the requirements of Section 8(d)(1), (3),
and (4) of the Act, thereby refusing to bargain in good faith with the Company
within the meaning of Section 8 (b) (3) of the Act.
The facts are basically not in dispute, the principal issue being whether, as Re-
spondent contends in its answer, a collective-bargaining agreement "was not in
force or effect or legally binding" at the crucial time. Specifically, the question
raised is the effect, if any, on said contract by a determination of the Board that
this contract was not a bar to a petition filed by another labor organization seeking
to represent these employees, Respondent Union thereafter winning the ensuing
election.
B. Sequence of events
The Company has 25 or 26 employees of whom approximately 7 or 8 are truck-
drivers. It has enjoyed contractual relations for its drivers with Respondent Union
since 1944 or 1945. On June 13, 1955, the Company and Respondent Union signed
a form contract which had been in existence in the area since 1951. It provided
that it would be in effect until March 1, 1956, and from year-to-year thereafter,
unless terminated by written notice via registered mail not less than 60 days prior
to March 1, 1956, or of subsequent years.
Although Respondent offered evidence of a form letter dated June 18, 1956, sent
to the Company and to various other employers in the industry, stating a desire to
negotiate a new contract, it is clear, and I find, in view of the termination language
of the 1955 contract, that this form letter did not serve to suspend its operation.
Furthermore, payments were made thereunder in 1957 and 1958 to the Teamsters'
general security fund for various health and welfare benefits provided in the con-
tract and no claim was ever made that the contract was not in existence. Indeed,
as late as July 1958, Respondent insisted that the 1955 contract was in effect because
it garnished the bank account of the Company in an effort to reach delinquent health
and welfare fund payments.
On November 17, 1958 a new contract was signed under the following circum-
stances, according to the uncontroverted and credited testimony of Morris Gurewitz,
the proprietor of the Company. He ascertained that a picket line had been placed
at his plant, and noticed that his men and trucks were stationed outside the plant.
MEAT AND PROVISION DRIVERS, LOCAL 626, ETC. 577
He approached Business Agent Mike Singer, of Respondent Union, and asked what
the problem was.
Singer replied, "We don't have a signed contract. We can't find it.. . . We have
to have a signed contract." Singer, Gurewitz, and another business agent of the
Union, Mike Grancich, proceeded to the office, and Gurewitz offered to sign a
contract. Singer replied that it would be necessary to give the men a wage increase.
Gurewitz's original offer of 10 cents per hour was rejected and an 18-cent per hour
wage increase for each driver was agreed upon. They signed an agreement pro-
viding that it would be effective as of October 1, 1956, until September 1, 1959, and
from year-to-year thereafter, absent 60 days' notice prior to September 1, 1959, or
in subsequent years. Attached thereto was an appendix listing the eight drivers of
the Company by name and their newly increased wage rates.
Respondent does not challenge the facts concerning the execution of this agree-
ment, but basically contends that the contract was not legally binding because of
the Board decision in a representation case involving a petition filed on November 6,
1958, prior to the execution of the contract, with hearings held in January and Feb-
ruary 1959, and the Board decision handed down on April 9, 1959.
That representation proceeding involved the employees of the Company in Case
No. 21-RC-5503 (unpublished) and was filed by United Packinghouse Workers of
America, AFL-CIO. The Board noted in its Decision and Direction of Election
that Respondent Union and another labor organization had intervened at the
hearing "on the basis of their contract with the Employer." The Board went on to
find that a question concerning representation existed, inter alia, noting "The Team-
sters' union signed a contract with the Employer dated November 17, 1958. As
the petition herein was filed ele ien days prior to the execution of this contract, it
can not act as a bar to this proceeding." Elections were duly directed among two
groups, group A, not material herein, and group B, consisting of "All drivers and
sales drivers excluding all other employees." Named on the ballot in group B were
the petitioner and Respondent Union. The election was held on May 5, and of seven
eligible voters, Respondent Union received all seven votes. On May 14, 1959, the
Board certified Respondent Union as the bargaining representative of the employees
in unit B, described above.
On May 5 Business Representative Singer of Respondent Union wrote to the
Company as follows:
You are aware that on May 5, 1959 this Local Union won a National Labor
Relations Board election at your premises. At this time, as the exclusive
bargaining representatives of your driver-employees, we request that negotia-
tions be commenced as soon as possible for the purpose of consummating a
collective bargaining agreement covering these employees.
We request at this time that within five days from receipt of this letter you
inform us as to the time and place that such negotiations can commence.
Hoping to hear from you shortly, I remain-
On May 22, Singer again wrote to the Company as follows:
Recently you submitted a check for dues check-off for the month of May,
1959.
This will advise you that Local Union 626 is taking the position that the
collective bargaining agreement executed on November 17, 1958 is in all legal
effect expunged, since the holding of the election. In Case No. 21-RC-5503,
as a result of the ordering of this election, the contract in existence at that time
is of no further legal effect or validity. Therefore, any action by the Company
in accordance with the terms and provisions of the defunct contract represents
simply a carrying out of the terms of that agreement for an interim period until
a new collective bargaining agreement is arrived at and executed.
Unless we hear from you to the effect that you agree with this position, we
intend to simply hold this check and not cash it. Needless to say, upon your
request we will be happy to return the check to you.
Hoping to hear from you soon in this regard, I remain-
In an incident, similar to that of November 17, 1958, Gurewitz arrived at his
plant on May 12 at 6 a.m.; discovered that the gates were closed; and encountered
Singer, Grancich, and a third business agent of Respondent Union, Charley Reka.
He asked Singer what the problem was and Singer replied, "We have no contract
and there is a strike on." Gurewitz in turn insisted that there was a contract in effect.
Respondent retained Independent Industrial Relations Counsel Clarence Brown,
who met with Singer 2 or 3 days later. Brown claimed on this occasion that there
554461-60-vol. 126-38
578 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
was a contract in force between Respondent Union and the Company but Singer
replied tnat it was "null and void." The parties have stipulated that on May 12,
1959, Respondent Union submitted a new contract proposal to the Company and
that Respondent Union is presently picketing in an effort to have the Company
execute it. This proposed agreement contains an effective date of May 5, 1959, with
a duration through May 5, 1960, and from year to year thereafter.
Health and welfare payments have been made through May 1959 by the Company
to the fund under the November 1958 contract. In addition, union dues have been
checked off and remitted to Respondent up to April 1959. At least in the case of
the health and welfare payments, this is manifestly a date subsequent to the Board
representation decision.
C. Conclusions
(1) It is unnecessary to dwell in detail on the Board's contract-bar rule. Suffice
it to say that it is a rule pursuant to which the Board will not determine the repre-
sentative of employees subject to a collective-bargaining agreement which meets
certain general requirements such as reasonable duration, coverage of employees in
an appropriate unit, and contains substantive terms and conditions of employment
which are consistent with the policies of the Act.
It is an administrative rule of the Board whereby the Board determines that the
policies of the Act are best effectuated by giving employees a chance to select a
new bargaining representative or, on the other hand, deciding that the stability of
labor relations dictates that the status quo shall be maintained.
Applying this to the present case it is clear that all the Board was saying in its
Decision and Direction of Election was that the contract was not entered into
timely enough by some days so as to forestall consideration of the representation
petition by the outside labor organization. The Board in no way passed upon the
validity or duration of the contract and I find that the conduct of the representation
election on May 5, 1959, in no way expunged the November 1958 contract I
further find that the Company has complied with the terms of the contract, so far
as permitted to do so by Respondent Union.
(2) Moreover, as the General Counsel contends, a consideration of the language
of the Act in Section 8(d) serves only to support the foregoing. Section 8(d) of
the Act provides that a party desiring the termination or modification of a collective-
bargaining contract covering employees in an industry affecting commerce must
take certain steps. These are as follows:
(1) serves a written notice upon the other party to the contract of the pro-
posed termination or modification sixty days prior to the expiration date
thereof, or in the event such contract contains no expiration date, sixty days
prior to the time it is proposed to make such termination or modification;
(3) notifies the Federal Mediation and Conciliation Service within thirty
days after such notice of the existence of a dispute, and simultaneously there-
with notifies any State or Territorial agency established to mediate and con-
ciliate disputes within the State or Territory where the dispute occurred,
provided no agreement has been reached by that time; and
(4) continues in full force and effect, without resorting to strike or lockout,
all the terms and conditions of the existing contract for a period of sixty days
after such notice is given or until the expiration date of such contract, whichever
occurs later:
It is undisputed herein that Respondent Union did not comply with the foregoing
provisions.
(3) In reality, the net effect of the Board decision and the certification in the
representation case was to add a certification to the existing status of Respondent
Union as the recognized bargaining agent. This is implicit from a consideration of
certain other language found in Section 8(d) of the Act which provides as follows:
"The duties imposed upon employers, employees, and labor organizations by para-
graphs (2), (3), and (4) shall become inapplicable upon an intervening certification
of the Board, under which the labor organization or individual, which is a party
to the contract, has been superseded as or ceased to be the representative of the
employees. . . ."
This language recognizes the fact that an outside labor organization may super-
sede the incumbent labor organization as the result of an election and that the duties
imposed upon employers and unions by Section 8(d) may then become inapplicable.
One logically deduces from this that there was no intention to treat with or alter
MEAT AND PROVISION DRIVERS, LOCAL 626, ETC. 579
the status resulting from a victory by the incumbent labor organization, as was the
case here.
(4) The General Counsel has directed attention to a Board decision which in my
belief supports his position herein. In Shea Chemical Corp., 121 NLRB 129, the
Board treated with the problem of an employer confronted by conflicting repre-
sentation claims in a so-called Mid-West Piping situation i and held as follows:
After full consideration of all the implications of the Gibson [William D.
Gibson Co., etc., 110 NLRB 6601 exception, we have decided to overrule that
case. We now hold 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.
This is not to say that the employer must give an undue advantage to the rival
union by refusing to permit the incumbent union to continue administering its
contract or processing grievances through its stewards . . . . [Emphasis
supplied. ]
It is significant that the Board then ordered the employer in that case to withdraw
recognition from the contracting union, the contract having been executed subsequent
to the filing of the petition by the other labor organization, only until such time as
the contracting union had demonstrated its majority representative status pursuant to
a Board conducted election.
This amounts to a statement that the Board was merely directing an employer
who had entered into a contract in the face of a conflicting representation claim
not to give effect to the contract until the signatory labor organization achieved
majority status in an election. This is in no way a statement that the contract was a
nullity, not in force, or not logically binding thereafter. And in the present case
the contracting labor organization proceeded to win the election, precisely the con-
tingency envisaged in the Shea decision.
Finally, as set forth, the June 1956 letter from Respondent Union to the Company,
contrary to the position of Respondent, could not have served to and did not serve
to open up the contract.
I find therefore as alleged by the General Counsel that Respondent unilaterally
terminated its contract with the Company on May 5 and engaged in a strike on and
after May 12, 1959, to obtain a new contract. I further find that Respondent did
not comply with the requirements of Section 8(d)(1), (3), and (4) of the Act
which were applicable in this situation in that it failed to continue in full force and
effect a contract with the Company, failed to serve a timely written notice on the
Company to terminate the contract, and also failed to give appropriate notice to
the Federal Mediation and Conciliation Service or the California State Conciliation
Service. I find that it has thereby refused to bargain in good faith within the
meaning of Section 8(b) (3) of the Act. Broward County Carpenters' District Coun-
cil, et al. (Broward Builders' Exchange, Inc.), 122 NLRB 1008; Local No. 156,
United Packinghouse Workers, et al. (Du Quoin Packing Company), 117 NLRB 670;
and Retail Clerks International Association Local No. 1179, et al. (California Asso-
ciation of Employers for and in behalf of J. C. Penney Company), 109 NLRB 754.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondent Union set forth in section III, above, occurring in
connection with the operations of the Company described in section I, above, have
a close, intimate, and substantial relation to trade, traffic, and commerce among the
several States, and tend to lead to labor disputes burdening and obstructing com-
merce and the free flow thereof.
V. THE REMEDY
Having found that Respondent Union has engaged in conduct violative of Section
8(b)(3) of the Act, I shall recommend that it cease and desist therefrom and take
certain affirmative action designed to effectuate the policies of the Act.
Upon the basis of the foregoing findings of fact, and upon the entire record in the
case, I make the following:
CONCLUSIONS OF LAW
(1) Meat and Provision Drivers, Local 626, International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of America, Independent, is a labor
organization within the meaning of Section 2(5) of the Act.
1 Mid-West Piping cE Supply Go., Inc., 63 NLRB 1060.
580 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
( 2) Morris Gurewitz d/b/a Washington Rendering Company is an employer
within the meaning of Section 2(2) of the Act.
(3) All drivers and sales drivers at the Los Angeles , California , rendering plant
of the Company , excluding all other employees , constitute a unit appropriate for
the purposes of collective bargaining within the meaning of Section 9(b) of the Act.
(4) Meat and Provision Drivers, Local 626, International Brotherhood of Team-
sters, Chauffeurs , Warehousemen and Helpers of America , Independent , is, and at
all times material herein has been, the exclusive representative of the employees in
the above appropriate unit for the purposes of collective bargaining within the
meaning of Section 9 ( a) of the Act.
(5) By refusing to bargain collectively with the Company , Meat and Provision
Drivers, Local 626, International Brotherhood of Teamsters , Chauffeurs , Warehouse-
men and Helpers of America, Independent , has engaged in unfair labor practices
within the meaning of Section 8 (b) (3) of the Act.
(6) The above unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and ( 7) of the Act.
[Recommendations omitted from publication.]
The Great Atlantic and Pacific Tea Company , National Bakery
Division and Bakers Local Union No . 57, American Bakery
and Confectionery Workers International Union , AFL-CIO,
Petitioner. Case No. 9-IBC-36993. February 10, 1960
DECISION AND DIRECTION OF ELECTION
Upon a petition duly filed under Section 9 (c) of the National Labor
Relations Act, a hearing in this case was held before Thomas M.
Sheeran, 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 [Members Rodgers, Bean, and Fanning].
Upon the entire record in this case, the Board finds:
1. The Employer is engaged in commerce within the meaning of the
Act.
2. Bakers Local Union No. 57, Bakery and Confectionery Workers
International Union of America, referred to herein as BCW Local
57, and its International, referred to herein as BCW were permitted
to intervene on the basis of the Local's contract interest. The Peti-
tioner and the Intervenors are labor organizations claiming to repre-
sent certain employees of the Employer.
3. The Intervenors contend that a contract between BCW Local 57
and the Employer, effective August 10, 1958, is a bar to this proceeding
for the first 2 years of its term. The Petitioner maintains that the
contract is not a bar because of a schism in BCW Local 57, allegedly
caused by the basic intraunion conflict in BCW which resulted in its
expulsion from AFL-CIO. The Intervenors, however, contend that
the schism allegations should be rejected on the ground that the action
occurred an unreasonably long time after the beginning of the basic
126 NLRB No. 71.