Purity Stores, Ltd.

National Labor Relations Board - Board Decisions

Feb 12, 1951

93 N.L.R.B. 199 (N.L.R.B. 1951)

PURITY STORES, LTD. 199
Upon the basis of the foregoing findings of fact and upon the entire record in
the case the Trial Examiner makes the following:
CONCLUSIONS OF LAW
1. International Hod Carriers', Building & Common Laborers' Union of America,
Local 210, AFL, is a labor organization within the meaning of Section 2 (5) of
the Act.
2. By executing and enforcing the contract of April 30, 1948, the Respondents,
General Contracting Employers Association, Carpenter & Skaer, Inc., and H. F.
Stimm, Incorporated, have engaged in and are engaging in unfair labor practices
within the meaning of Section 8 (a) (3) of the Act.
3. By discriminating in regard to the hire and tenure of employment, thereby
encouraging membership in the Respondent Union, of George McDonald and
Harold Odell, respectively, the Respondents Carpenter and Stimm have engaged
in and are engaging in unfair labor practices within the meaning of Section &
(a) (3) of the Act.
4. By interfering with, restraining, and coercing employees in the exercise of
rights guaranteed in Section 7 of the Act, the Respondents Association, Carpenter
and Stimm, have engaged in and are engaging in unfair labor practices within the
meaning of Section 8 (a) (1) of the Act.
5. By causing the Respondents, Carpenter and Stimm, and employer Seitz to
discriminate against employees in violation of Section 8 (a) (3) of the Act, the
Respondent Union has engaged in and is engaging in unfair labor practices within
the meaning of Section 8 (b) (2) of the Act.
6. By restraining and coercing employees in the exercise of the rights guaran-
teed in Section 7 of the Act, the Respondent Union has engaged in and is engaging
in unfair labor practices within the meaning of Section (b) (1) (A) of the Act.
7. The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 (6) and (7) of the Act.
[Recommended Order omitted from publication in this volume.]
PURITY STORES, LTD. and WAREHOUSE UNION, LOCAL No. 12, AFL,
PETITIONER
R. C. PELL, AN INDIVIDUAL D/B/A PELICAN PAPER COMPANY and WARE-
HOUSE UNION, LOCAL No. 12, AFL, PETITIONER
FRANK A. SMITH, RICHARD E. LOVE, AND ELLEN J. SMITH, A PARTNER-
SHIP, D/B/A SMITH, LYNDEN AND COMPANY and WAREHOUSE UNION,
LOCAL No. 12, AFL, PETITIONER. Cases Nos. 20-RC-965, 20-RC-
1011, and 20-RC-1012. February 12, 1951
Decision and Order
Upon separate petitions duly filed under Section 9 (c) of the Na-
tional Labor Relations Act, a consolidated hearing was held before
Benjamin B. Law, hearing officer. The hearing officer's rulings made
93 NLRB No. 23.
200 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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 Houston, Reynolds, and Styles].
Upon the entire record in this case, the Board finds :
1. The Employers are engaged in commerce within the meaning
of the Act, and we find that it would effectuate the policies of the Act
to assert jurisdiction over Purity Stores, Ltd., and Smith, Lynden and
Company,' but not over the Pelican Paper Company.3 We shall ac-
cordingly dismiss the petition as to the Pelican Paper Company on
jurisdictional grounds.
2. The labor organizations involved claim to represent employees of
the Employers.4
3. No question affecting commerce exists concerning the representa-
tion of employees of the Employers within the meaning of Section 9
(c) (1) and Section 2 (6) and (7) of the Act, for the following
reasons:
As to the two Employers over whom,we would assert jurisdiction
(Purity Stores, Ltd., and Smith, Lynden and Company), the Peti-
tioner seeks to represent separate units of all warehouse employees at
their San Francisco, California, plants, excluding office and clerical
employees, guards, and supervisors as defined in the Act. These Em-
ployers have since 1937 been members of the Distributors Association
,of Northern California, and the Association has since that time rep-
resented its members, including these Employers, in collective bar-
gaining with the Intervenor, and has executed a series of contracts
with the Intervenor on the behalf of its members. Negotiations for a
new contract with the Intervenor were begun on March 2S, 1950. On
March 31, 1950, the members of the Association, including Smith,
met in accordance with the Association's usual procedure, and a ma-
jority of the members approved the terms of the proposed agreement
between the Association and the Intervenor.' Under the bylaws of
i In view of our disposition of this proceeding , we find it unnecessary to consider the
contentions of the parties that the hearing officer was in error in rejecting evidence relat-
ing to (1) the contract bar question , and (2) the reasons for the resignations of the Em-
ployers from the Association.
2 During 1949 , Purity Stores ' out-of-State purchases amounted to about $2 , 000,000, and
the out-of - State sales of Smith , Lynden and Company were at least $ 21,600 and its out-of-
State purchases amounted to at least $71 , 000. Under these circumstances the assertion
of jurisdiction over these Employers is in accord with the Board ' s new jurisdiction policy.
Federal Dairy Go, Inc, 91 NLRB 638 , Stanislaus Implement and Hardware Company,
Limited, 91 NLRB 618 , and The Rutledge Paper Products , Iite, 91 NLRB 625
3 The Pelican Paper Company purchased out of State during 1 949 paper products valued
at $320 , 400 and sold paper products for shipment out of State valued at $7,050 during the
same period. See cases cited in preceding footnote.
, International Longshoremen ' s and Warehousemen ' s Union, Local 6, CIO, was permitted
to intervene at the hearing
5 Smith voted to reject the agreement . Purity did not attend the meeting.
PURITY STORES, LTD. 201
the Association, an agreement approved by a majority of its members-
becomes binding upon each member unless he resigns within a pre-
scribed period.6 The agreement was formally executed by the Associa-
tion on April 4, 1950. Purity resigned from the Association on April
18, 1950, and Smith resigned on April 19, 1950. As their resignations
occurred after the prescribed escape period, these Employers indicated
at the hearing that they considered themselves to be bound by the
association contract of April 4, 1950. That contract, after providing
that the old contract should remain in force, in accordance with its
terms, to June 1, 1950, established new terms to be effective from that
date to May 31, 1953.
The Petitioner contends that a single-employer unit is appropriate
because the Employers have demonstrated an intent to bargain in-
dividually by resigning from the Association. The Association and
the Intervenor contend that the multiemployer unit is the only ap-
propriate one because the fact that the Employers failed to resign
during the escape period demonstrates an intent to continue to be
bound by group action. Counsel for Smith at the hearing stated that
it favored a multiemployer unit. Purity took no position as to the
appropriateness of the unit.
To find whether or not the single-employer units here sought by the
Petitioner are appropriate, in the face of the long history of multi-
employer bargaining, it is necessary to determine whether the two
Employers involved intend to be bound by group action or to pursue-
an independent course of bargaining. As the Employers have mani-
fested a varying intent, however, it is also necessary to determine at
what point this intent shall be controlling. By failing to exercise
their right to resign until after the escape period, and of ter the Asso-
ciation contract was executed, the Employers manifested an intent to
be bound in collective bargaining by group rather than by individual
action for at least three more years. We have held heretofore that
when an employer had become bound by a contract negotiated on his
behalf by group action, his resignation from the group during the
term of such contract will not validate a petition for a unit confined
to his employees alone.? Accordingly, the resignations of Purity and
Smith from the Association during the term of the April 4, 1950,
contract cannot serve as a basis for finding that the single-employer
units here sought by the Petitioner are appropriate.
0 In the case of a member who, like Smith , votes against the agreement , the escape period
terminates 7 days after the vote was taken. In the case of a member who, like Purity, does
not attend the meeting at which the contract is approved, the escape period terminates
7 days "afer notice of the commitment or undertaking and the vote thereon . . Such.,
a notice was sent to Purity Stores on March 31, 1950.
7 Engineering Metal Products Corporation, 92 NLRB 823
202 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
We find, therefore, that the units sought by the Petitioner in
Cases Nos. 20-RC-965 and 20-RC-1012 are not at the present time
appropriate, and shall for that reason dismiss the petitions in those
'cases."
Order
IT IS HEREBY ORDERED that all the petitions herein be, and they here-
by are, dismissed.
8 In view of our disposition herein, it is not necessary to pass upon the iemaimng issues
raised by the parties.
SELLERS MANUFACTURING COMPANY, INCORPORATED and TEXTILE
WORICERS UNION OF AMERICA, C. I. 0., PETITIONER. Case No.
314RC-241. February 12, 1951
Decision and Direction of Election
Upon a petition duly filed under Section 9 (c) of the National Labor
Relations Act, a hearing was held before Miles J. McCormick, hear-
ing 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 Houston, Reynolds, and Styles].
Upon the entire record in this case, the Board finds :
1. Sellers Manufacturing Company, Incorporated, the Employer
named herein, and hereinafter called Sellers,' and National Process-
ing Company, hereinafter called National, are jointly and severally
engaged in commerce within the meaning of the Act.
2. The labor organization involved claims to represent certain em-
ployees of Sellers .2
3. A question affecting commerce exists concerning the representa-
tion of employees of Sellers and National within the meaning of
Section 9 (c) (1) and Section 2 (6) and (7) of the Act.
4. The Petitioner seeks a unit of production and maintenance
employees at Sellers' cotton yarn plant at Saxapahaw, North Carolina.
1 The name of Sellers appears herein as amended at the hearing.
2 At the hearing , Sellers offered to prove , and moved to dismiss the petition on the ground,
that the Congress of Industrial Organizations , with which the Petitioner is affiliated, had
not complied with the filing requirements of Section 9 of the Act . The hearing officer re-
jected the offer of proof and reserved ruling on the motion to dismiss for the Board. For
reasons set forth in J. H. Rutter-Rex Manufacturing Co , Inc., 90 NLRB 130 , we sustain
the hearing officer's rejection of the offer of proof and deny the motion to dismiss. It may
be added that the Board 's records show that the Congress of Industrial Organizations was
in compliance with the filing requirements of the Act at the time the petition herein was
filed and is currently in compliance.
93 NLRB No. 29.