Fish Industry Committee

National Labor Relations Board - Board Decisions

Mar 17, 1952

98 N.L.R.B. 696 (N.L.R.B. 1952)

696 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
FISH INDUSTRY COMMITTEE , COMPOSED OF THE FOLLOWING EMPLOYERS : 1
BOOTH FISHERIES CORPORATION, BRANDT COMPANY , EUCLID FISH
COMPANY, FULTON FISH COMPANY , FOREST CITY FISH COMPANY,
GREAT LAKES FOOD SUPPLIES COMPANY , HABERMAN 'S FISHERIES,
HENRY TAYLOR & SON 7 THE L . MANHEIM FISH COMPANY, STAR FISH
COMPANY, AND STATE FISH COMPANY and TEAMSTERS UNION, CLERI-
CAL EMPLOYEES , LOCAL 521, INTERNATIONAL BROTHERHOOD OF TEAM-
STERS, CHAUFFEURS , WAREHOUSEMEN AND HELPERS OF AMERICA,
AFL,2 PETITIONER . Case No. 8-RC-13110. March 17, 1952
Decision and Direction of Election
Upon a petition duly filed, a hearing was held before Carroll L.
Martin, hearing officer. The hearing officer's rulings made at the
hearing are free from prejudicial error and are hereby affirmed.a
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-member panel. [Members Houston, Murdock,
and Styles],
Upon the entire record in this case, the Board finds :
1. The Employers are engaged in the business of wholesaling and
retailing fish within the metropolitan area of Cleveland, Ohio.
The purchases,.of merchandise and supplies from outside the State
of Ohio by all the Employers amount in value to something in excess of
$1,500,000 annually. Their sales out of State total at least $125,000
annually . Some of the Employers are engaged in business in several
States. We find that the Employers, as a group, are engaged in com-
merce within the meaning of the National Labor Relations Act and
that it will effectuate the policies of the Act to assert jurisdiction in
this case.'
1 The caption has been amended to eliminate therefrom Nemehek and Polio Fisheries.
The record shows that that company is a three -man partnership having no employees, that
it never participated in the multiemployer bargaining with the Intervenor, either directly
or through a representative , and that it never signed a collective bargaining agreement
with the Intervenor . Accordingly, Nemchek and Polio Fisheries will not be included in
the multiemployer unit hereinafter found appropriate , ' nor, as it does not ,ilR'e any
employees , will it be set up as a separate appropriate unit.
'.The designation of the Petitioner has been amended in accord with the change in its
name which occurred after it filed the petition.
' At the hearing , the Petitioner moved to amend its name from Retail and Wholesale
Employees Union, Independent , to Teamsters Union, Clerical ` Employees , Local 52t,' Inter-
national Brotherhood of Teamsters , Chauffeurs , Warehousemen and Helpers of America,
AFL. The hearing officer , over the objection of the Intervenor, granted the motion. We
affirm this ruling. The evidence shows that the members of the Petitioner voted to
affiliate with the Teamsters Union and were granted a charter in that Union . After the
affiliation , the Petitioner presented to the hearing officer a new showing of interest which
we have administratively determined satisfies the requirements of the Board.
' Federal Dairy Co., Inc., 91 NLRB 638; Stanislaus Implement and Hardware Company,
Ltd., 91 NLRB 618; The Borden Company , Southern Division, 91 NLRB 628.
98 NLRB No. 109.
,FISH INDUSTRY COMMITTEE " 697
2. The labor organizations 5 involved claim to represent certain
employees of the Employer.
3. A 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.
4. The Petitioner seeks a unit composed of all full-time and part-
time fish house employees of the Employers herein, with certain
exclusions. The representative of the Employers at the hearing sup-
ported this proposed unit. The Intervenor contends that there has
been no joint bargaining which will justify a finding of a multiem-
ployer unit. It also asserts that the unit petitioned for is a hetero-
generous grouping of employees not appropriately placed in a single
unit.
From 1933 to 1942 there existed a formal association of fish house
employers in the Cleveland area . In the latter year the association
was disbanded and does not exist at the present time. However, the
former members of the association continued thereafter to engage in
collective bargaining on the same joint basis. Beginning in 1933 the
fish house employees of the Employers were represented by the Fish
Handlers Union, which subsequently became the Intervenor. This
organization has represented the employees until the recent expira-
tion of its last contract. During this period, the customary bargain-
ing procedure was as follows : Each year the Intervenor would send
letters to the various Employers stating its proposals. The Em-
ployers would meet and discuss the proposals and formulate their
position in regard to them. They would then select a committee to
negotiate with the Intervenor. The committee was composed of from
three to five members, and during all these years was invariably
headed by the same man, who was also the representative of the Em-
ployers at the hearing in this case. The authority of the committee
was limited to the negotiation of the cdntract. When agreement on
a contract was arrived at, it was submitted to each of the Employers
who signed individual but identical contracts. " The representative of
the Employers testified that in every instance the Employers accepted
the contract as negotiated.6
The Intervenor is Local 1509, Retail Clerks International Association, AFL
° The owner of the Fulton Fish Company was not present at the hearing and he wag
contacted by telephone . It was stipulated that if he were present he would have testified
that he did not sign a contract with the Intervenor for the year 1950. However, other
testimony indicates that the Fulton Fish Company is paying the wages established by the
1950 contract , according the same holiday and vacation privileges , and is abiding by the
other terms of that contract. The testimony also shows that this Employer had for the
preceding 10 years joined the other Employers in granting a committee authority to
negotiate a contract with the Intervenor and apparently had signed the contract each of
those years . We find that the failure of the Fulton Fish Company to sign the 1950
contract does not, in the absence of affirmative acts or declarations , indicate an unequivocal
intent on the part of that Embloyer hereafter to pursue an individual course in labor
698 DECISIONS OF NATIONAL LABOR RELATIONS BOARD -
' The Intervenor asserts that the pattern of bargaining described
above will not support a finding of a multiemployer unit. It points
-to the dissolution of the formal association of fish house Employers,
the fact that their negotiating committee did not have the power to
bind each Employer, and the additional fact that separate rather than
group contracts were signed by the individual Employers. We do
not agree with this contention of the Intervenor. The Board has
-previously held that the fact situations, asserted by the Intervenor
are not prerequisites to the establishment of a multiemployer unit'
As the Employers have jointly bargained with the Intervenor for
-many years, and have executed collective bargaining agreements in
pursuance of that bargaining, we find that a multiemployer unit is
appropriate. -
As indicated above, the Intervenor asserts that the unit sought by
the Petitioner is inappropriate in that it would be composed of em-
ployees in different job categories totally unrelated to one another.
The Petitioner seeks to represent the fish house employees of the
Employers, sometimes referred to as fish handlers. Their job con-
sists primarily of cleaning, cutting, filleting, and packing fish. Some
of them occasionally do delivery work in addition to their regular
duties. Two or three of the Employers who sell at retail in addition
to their wholesale business have their fish handlers do some retail sell-
ing across the counter. The employees of one Employer also spend
some of their time in operating fishing boats. All of the employees
sought to be represented by the Petitioner have been included within
the coverage of the contracts between the Employers and the In-
tervenor. While they are engaged part of the time in the other duties
mentioned, no employees are assigned exclusively to these other chores,
but rather perform them as part of their principal job as fish handlers.
We find that the fish handlers, including those who do some delivering,
retail selling, or fishing', may appropriately be included within one
unit. - -
We find that the following employees constitute a unit appropriate
for the purposes of collective bargaining within the meaning of Section
9 (b) of the Act.
All full-time and part-time 8 fish house employees of the Employers
relations . We will therefore include the Fulton Fish Company in the multiemployer unit
found appropriate hereinafter. For similar reasons, we will include Henry Taylor & Son
as to whom there is some question as to whether or not it signed the 1950 contract.
+ Bryant's Marina, Inc., 92 NLRB 718.
e It appears that at least one of the Employers and probably others have part-time
employees . However, the record does not contain sufficient evidence to determine their
eligibility to vote. We find , therefore , that all regular part-time employees of the
Employers who work a substantial amount of time as fish handlers shall be eligible to vote
in the election directed herein.
FOX MIDWEST AMUSEMENT CORPORATION 699
-named in the caption , excluding office employees , guards, professional
employees , managers, and supervisors a as defined in the Act.
[Text of Direction of Election omitted from publication in this
volume.]
° Doubt exists as to the status of the foremen within the employ of the Employers. Scant
testimony was adduced as to the supervisory nature of the foremen of some of the
Employers ; no testimony was taken as to others . We find that those foremen who meet
=the requirements of a supervisor as defined in Section 2 (11) of the Act are excluded from
the unit found appropriate. Those who do not so qualify and who perform the work of
fish handlers are included.
-Fox MIDWEST AMUSEMENT CORPORATION, Fox PLAINS THEATRES COR-
PORATION AND Fox MIDWEST THEATRES, INC. and KENNETH CARAWAY
INTERNATIONAL ALLIANCE OF THEATRICAL STAGE EMPLOYEES & MOVING
PICTURE MACHINE' OPERATORS OF THE U. S. & CANADA, LOCAL No.
495 AFL; CO"MTVILLE CENTRAL LABOR UNION; BROTHERHOOD OF
PAINTERS, DECORATORS AND PAPERHANGERS OF AMERICA, LOCAL No.
211, AFL; INTERNATIONAL HOD CARRIERS' BUILDING & COMMON
LABORERS' UNION OF AMERICA, LOCAL No. 193, AFL; AND INTER-
NATIONAL UNION OF PLUMBERS AND STEAMFITrERS , LOCAL No. 399
and KENNETH: CARAWAY. Cases Nob. 17-CA-366 and 17-CB-39.
March 18, 1952
Decision and Order
On September 5,1951, Trial Examiner Arthur Leff issued his Inter-
mediate Report in the above-entitled proceeding, finding that the
Respondents had engaged in and were engaging in certain unfair
labor practices and recommending that they cease and desist there-
from and take certain affirmative action, as set forth in the copy of
the Intermediate Report attached hereto. Thereafter, the Respond-
ent Unions and the Respondent Companies filed exceptions to the
Intermediate Report and the Respondent Companies filed a support-
ing brief.
The Board 1 has reviewed the rulings made bythe 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, the brief, and the entire record in
1 Pursuant to the provisions of Section 8 (b) of the National Labor Relations Act, the
Board has delegated its powers in connection with this case to a three -member panel
[Members Houston , Murdock , and Styles].
98 NLRB No. 115