Packerland Packing Co., Inc.

National Labor Relations Board - Board Decisions

Feb 24, 1970

181 N.L.R.B. 284 (N.L.R.B. 1970)

284 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Packerland Packing Company , Inc. and
Amalgamated Meat Cutters and Butcher
Workmen of North America , AFL-CIO,
Petitioner . Case 30-RC-1079
February 24, 1970
DECISION ON REVIEW, AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS
BROWN AND JENKINS
On September 15, 1969, the Regional Director for
Region 30 issued his Decision and Direction of
Election in the above-entitled proceeding, in which
he found that the existing contract between the
Employer and the Intervenor, Independent
Employees Union of Packerland Packing, was a
premature extension of their antecedent contract and
therefore inoperative as a bar because the petition
was timely filed with respect to the antecedent
contract's termination date.
Thereafter, pursuant to National Labor Relations
Board Rules and Regulations, the Employer filed a
timely request for review, contending that in finding
its existing contract to be a premature extension, the
Regional Director departed from Board precedent.
The Petitioner filed opposition to the request for
review.
By telegraphic Order dated December 9, 1969, the
National Labor Relations Board granted the request
for review. Thereafter the Petitioner filed a brief on
review.
Pursui nt to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
Board has delegated its powers in connection with
this case to a three-member panel.
The Board has considered the entire record in this
case, including the Petitioner's brief on review, and
finds that no question exists concerning the
representation 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 Employer is engaged in meat packing. In
1962 the Employer recognized the Intervenor as the
representative of production and maintenance
employees, including truckdrivers, at its Green Bay,
Wisconsin plant and negotiated with it a contract
covering such employees for a 3-year term, effective
September 1, 1963, to September 1, 1966. On
January 18, 1965, the Petitioner filed a petition in
Case 30-RC-177 contending that the Intervenor was
defunct or that a schism existed removing the
contract as a bar to an immediate election. After a
hearing, the Regional Director issued a Decision and
Order in which he rejected the Petitioner's
contentions and dismissed the petition. Thereafter,
on May 20, 1966, more than 90 days before the
expiration date of the 1963 contract, the Intervenor
and the Employer executed a 3-year contract,
effective from September 1, 1966, when the 1963
contract was due to expire, to September 1, 1969.
However, on June 6, 1966, the Petitioner filed a
timely petition in Case 30-RC-474 and the parties
entered into a consent election agreement. The first
election held pursuant thereto was set aside, a
second election was held, and the Regional Director
on March 29, 1967, certified the Intervenor as the
representative of the employees involved.
Subsequent to its certification the Intervenor and
the Employer entered into negotiations and on May
1, 1967, executed a new 3-year contract effective
June 1, 1967, to June 1, 1970. It is this contract
which they urge as a bar to the instant petition filed
June 9, 1969.
The Petitioner contends that the existing contract
may not operate as a bar herein on the alternative
grounds (1) that it is a premature extension of the
antecedent contract, (2) that the Intervenor is
defunct and (3) that a schism exists within the
Intervenor affecting the contract unit. The Regional
Director found merit in the first ground and made
no ruling on grounds (2) and (3).
The Employer, in its request for rev.iew, contends
that its current contract, having been negotiated
during the Intervenor's certification year, is not
subject to the premature extension doctrine. We find
merit in this contention. Here, in our judgment, the
contractual parties were entitled to replace their
existing agreement, which was negotiated before the
initiation of the proceeding which resulted in the
Intervenor's certification, with a new agreement for
a term of reasonable duration during which the
incumbent would be free from a challenge to its
representative status.'
We turn then to the other grounds advanced by
the Petitioner for removing the current agreement as
a bar, to wit, that the Intervenor is defunct or that a
schism exists within it affecting the contract unit.
The record indicates that in early 1969, after
negotiations were initiated by the Intervenor for a
mid-term modification of the existing contract, the
Petitioner resumed its organizational efforts among
the Employer's employees.' In March 1969, the
Intervenor's 7-member executive board met with
agents of the Petitioner, and all but the president,
Roger Pemberton, signed authorization cards for the
Petitioner. The next day Pemberton notified the six
other executive board members by letter that by
joining the Petitioner they had revoked their
In its brief on review, the Petitioner argues, in effect, that because the
Employer, in the light of the provisions of Section 8(d) of the Act, may not
have been compelled to negotiate the current agreement with the
Intervenor, the fact that it voluntarily did so should not render the new
contract immune from the premature extension doctrine We reject this
argument as we believe that where an employer, in a situation like that
here present , agrees to negotiate a new contract with a newly certified
incumbent union , such union is entitled to the same certification benefits
which a union with no preexisting contractual relationship would enjoy
'At the time of the Intervenor 's certification as representative of the
Employer' s employees, it was also certified in Case 30-RC-473 as
representative of a unit of approximately 25 production and maintenance
employees of A Frankenthal & Son, a concern which processed hides
obtained from the Employer
181 NLRB No. 48
PACKERLAND PACKING COMPANY 285
memberships in the Intervenor, and were removed
as officers and members of the executive board, and
he appointed other employees to serve as officers
and executive board members. Thereafter both
factions have claimed to be the leaders of the
Intervenor and the issue is the subject of pending
litigation in a state court.
In April 1969, pursuant to notice, president
Pemberton caused a vote by secret ballot to be
conducted among the employees of the Employer
and of A. Frankenthal & Son. As stated on the
notice of election, the issue was: "Do you want
[Pemberton and his newly appointed executive
board] as your Independent Union executive
committee, and do you want to accept the proposal
of management, for which we negotiated, and
additional negotiation for more." (sic) The ballot
provided for but a single answer to both questions.
The employees voted "no" by a margin of about
180 to 90. Nevertheless Pemberton and his
appointees have continued as the Intervenor's
executive board, have negotiated new contracts with
the Employer for its truckdrivers and with the
Frankenthal concern for all its employees, and have
processed grievances. The Intervenor continues to
receive checked off dues and has money in its
treasury. At the hearing, a lawyer appeared on
behalf of the Pemberton group and Pemberton
stated that the Intervenor stood ready, willing and
able to administer the existing contract.
In contrast, the former members of the executive
board who became members of the Petitioner have
held a number of employee meetings purporting to
be meetings of the Intervenor, in which they have
voted , inter alia , to oust Pemberton and to affiliate
with the Petitioner. The former members of the
executive board have attempted to process
grievances in the name of the Intervenor, but the
Employer has refused to deal with this rival faction.
Leaders of the rival faction appeared at the hearing
and claimed to be the successor of the Intervenor.
In the circumstances above outlined and upon the
entire record, it is clear that the Intervenor is not
defunct, and we are not satisfied that a schism exists
within the Intervenor creating confusion as to the
identity of the bargaining representative under the
existing contract.3 Accordingly, we find the existing
contract to be a bar and we shall dismiss the
petition.
ORDER
It is hereby ordered that the petition be, and it
hereby is, dismissed.
'See Hershey Chocolate Corporation , 121 NLRB 901