Pevely Dairy Co.Download PDFNational Labor Relations Board - Board DecisionsDec 31, 194880 N.L.R.B. 1683 (N.L.R.B. 1948) Copy Citation In the Matter of PEVELY DAIRY COMPANY, EMPLOYER and INTERNA- TIONAL BROTHERHOOD OF FIREMEN , OILERS, AND GENERAL MAINTE- NANCE MEN, LOCAL No. 6, PETITIONER Case No. 14-RC-428.-Decided December 31,1948 DECISION AND DIRECTION OF ELECTION Upon a petition duly filed, a hearing was held before a hearing officer of the National Labor Relations Board. 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 National Labor Relations Act, the Board has delegated its powers in connection with this case to a three-man panel consisting of the undersigned Board Members.* Upon the entire record in this case, the Board finds : 1. The Employer is engaged in commerce within the meaning of the National Labor Relations Act. 2. The labor organizations named below claim to represent em- ployees of the Employer. 3. The Intervenor 1 asserts as a bar to this proceeding its contract executed with the Employer on August 1, 1946. The contract was for an initial term of 2 years and automatically renewable from year to year thereafter absent notice to terminate or amend given by either party at least 30 days before August 1, 1948, or any subsequent anni- versary date. By letter dated May 28, 1948, the Employer notified the Intervenor of its intention to terminate the contract. The ad- dress to which this letter was sent was incorrect and, as a result, was not received by the Intervenor until the afternoon of June 2, 1948. On that same date, the Intervenor in a letter addressed to the Employer advised the Employer of its desire to reopen the agreement. On Au- gust 6, 1948, the Petitioner sent a letter to Employer demanding rec- ognition. On that same date the Petitioner filed the petition herein. *Houston , Reynolds, and Murdock. i International Union of Operating Engineers , Locals Nos. 2, 2-A, 2-B, AFL. 80 N. L. R. B., No. 248. 1683 817819-49-vol. 80-107 1684 DECISIONS OF NATIONAL LABOR RELATIONS BOARD No new agreement has been entered into between the Intervenor and the Employer since August 1. However, on July 1, 1948, a union- authorization petition (Case No. 14-UA-2082) was filed with the Board, which case is still pending. We find that the conduct of the contracting parties hereinabove discussed clearly makes inoperative the automatic renewal clause of the contract 2 and for such reason, the contract, now expired, is no bar to the election hereinafter directed.3 We find that a question affecting commerce 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. 4. The following employees of the Employer constitute a unit ap- propriate for purposes of collective bargaining within the meaning of Section 9 (b) of the Act: All power plant and maintenance employees, including licensed sta- tionary engineers,4 but excluding professional employees, guards, and supervisors as defined in the Act. DIRECTION OF ELECTION As part of the investigation to ascertain representatives for the pur- poses 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 super- vision of the Regional Director for the Fourteenth Region, and subject to Sections 203.61 and 203.62 of National Labor Relations Board Rules and Regulations-Series 5, as amended, among the employees in the unit found appropriate in paragraph numbered 4, above, who were em- ployed during the pay-roll period immediately preceding the date of this Direction of Election, including employees who did not work during said pay-roll period because they were ill or on vacation or 2 For reasons stated in prior cases , we find no merit to the Intervenor's contention that the afore -mentioned notices given by the Employer and the Intervenor did not effectively stay the operation of the automatic renewal clause of their contract because the notices were not given more than 60 days before the terminal date of the contract as required by Section 8 (d) (1) of the Act as amended . See Matter of International Harvester Company, 77 N. L. R. B. 325. Nor is there any merit to the Intervenor 's further contention that "in view of subsequent negotiations and understandings" between the Employer and the Intervenor the contract must be held to have been continued in effect by the parties. There is no evidence in the record to show any rescission or abandonment of the written notices. 8 See Matter of H. 0. Canfield Company, 76 N. L. R. B. 606. 4 The licensed engineers have no authority to hire, discharge, discipline , or effect a change in the status of employees , and any recommendation they may make in this respect is subject to an independent investigation and final determination by the superintendent who is in charge of the power plant and maintenance department. We find, therefore, that the limited authority vested in them to direct the work of the firemen and maintenance men who assist them does not make the licensed engineers supervisors within the meaning of the Act as amended. Matter of H. J. Heinz Company, Inc, 76 N. L. It. B. 1103; Matter of Gemco Engineering and Manufacturing Company, Inc ., 76 N. L. It. B. 437. PEVELY DAIRY COMPANY 1685 temporarily laid off, but excluding those employees who have since quit or been discharged for cause and have not been rehired or rein- stated prior to the date of the election, and also excluding employees on strike who are not entitled to reinstatement, to determine whether they desire to be represented, for purposes of collective bargaining, by International Union of Operating Engineers, Locals 2, 2A, 2B, AFL, or by International Brotherhood of Firemen, Oilers and General Maintenance Men, Local No. 6, or by neither. Copy with citationCopy as parenthetical citation