Kohlman Bros. & Sugarman Co.

National Labor Relations Board - Board Decisions

Jun 25, 1947

74 N.L.R.B. 381 (N.L.R.B. 1947)

In the Matter of GORDON W. CALLENDER , MARSHALL C. CALLENDER,
WILSON S. CALLENDER , GEORGE BOIZELLE , D/B/A KOHLMAN BROS. &
SUGARMAN COMPANY, EMPLOYER and TRANSPORT WORKERS UNION
OF AMERICA , LOCAL 206 , C. I. 0., PETITIONER
In the Matter of GORDON W. CALLENDER , MARSHALL CALLENDER,
GEORGE Bo1ZELLE AND Miss ALMA O. PEARCE, D/B/A SEAGO-CALLENDER
COMPANY, EMPLOYER and TRANSPORT WORKERS UNION OF AMERICA,
LOCAL 206, C . I. 0., PETITIONER
Cases Nos . 15-R-1954 and 15-R-1955, respectively .Decided
June 05, 1947
Chaffe, McCall, Bruns, Toler cf Phillips, by Mr. Harry McCall, Jr.,
of New Orleans, La., for the Employers.
Messrs. Ernest Scott and J. C. Brown, of New Orleans, La., for the
Petitioner.
Mr. Al Liska, of New Orleans, La., for the Intervenor.
Mr. Irving D. Rosemnan, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
Upon separate amended petitions duly filed, hearing in these con-
solidated cases was held at New Orleans, Louisiana, on April 29, 1947,
before C. Paul Barker, hearing officer. The hearing officer reserved
ruling for the Board on separate motions made by the Intervenor
and the Employers to dismiss the petitions. For reasons stated in
Section III, infra, the motions are hereby denied. The hearing officer's
rulings made at the hearing are free from prejudicial error and are
hereby affirmed.
Upon the entire record in the case, the National Labor Relations
Board makes the following :
FINDINGS OF FACT
1. TILE BUSINESS OF THE EMPLOYER
Kohlman Bros. & Sugarman Company, a partnership, consisting
of Gordon W. Callender, Marshall C. Callender, Wilson S. Callender,
74 N L . R. B., No. 65. 381
382 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and George Boizelle, is engaged in the wholesale grocery business in
New Orleans, Louisiana. In connection with its business the partner-
ship operates a warehouse in New Orleans, Louisiana, with which we
are here concerned. During a 12-month period the partnership pur-
chased food stuffs valued in excess of $21,000,000, of which approxi-
mately 75 percent represented shipments from points outside the State
of Louisiana. During a similar period, approximately 20 percent of
the partnership's sales represented shipments to points outside the
State.
Seago-Callender Company, a partnership, consisting of Gordon
W. Callender, Marshall Callender, George Boizelle, and Alma O.
Pearce, is also engaged in the wholesale grocery business in New
Orleans, Louisiana. We are also concerned herein with this partner-
ship's warehouse which is located a short distance from the ware-
house mentioned above. During a 12-month period the partnership
purchased food stuffs valued in excess of $2,000,000, of which approxi-
mately 75 percent represented shipments from points outside the State
of Louisiana. During a similar period, approximately 50 percent
of the partnership's sales represented shipments to points outside the
State.
In addition to the identity of three of the four partners of each
partnership, it appears that both partnerships are under common
management and are operated as an integrated unit with frequent
interchange of employees.
Each partnership admits and we find that each is engaged in com-
merce within the meaning of the National Labor Relations Act.
We find further, in accordance with the admissions of each partner-
ship, that, for the purpose of this proceeding, the two partnerships
constitute a single Employer within the meaning of Section 2 (2)
of the Act.
II. THE ORGANIZATIONS INVOLVED
The Petitioner is a labor organization affiliated with the Congress
of Industrial Organizations, claiming to represent employees of the
Employer.
International Brotherhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America, Local 270, herein called the Intervenor,
is a labor organization affiliated with the American Federation of
Labor, claiming to represent employees of the Employer.
III. THE QUESTION CONCERNING REPRESENTATION
On September 11, 1946, Petitioner filed the instant petitions, and by a
letter addressed to the Employer, dated the same day, requested a meet-
ing for the purpose of negotiating a collective bargaining agreement,
KOHLMAN BROS. & SUGARMAN COMPANY 383
This letter was received by the Employer at 8: 30 a. in. on September 12,
1946. At 10: 00 a. in. on that clay, the Employer and the Intervenor
executed a collective bargaining agreement covering the employees
involved herein.' The record discloses that the Employer and the
Intervenor had been negotiating concerning a contract since the end
of August 1946, and that the terms thereof had been settled on Septem-
ber 11, but execution was postponed to September 12 to permit the
Employer's attorneys to "scan" the agreement. The contract which
was made retroactive to September 11, 1946, provides for an initial
period ending May 31, 1947, and for its automatic renewal for annual
periods thereafter in the absence of notice to terminate given by either
party thereto at least 30 days before May 31 in any year thereafter.
At the hearing the Employer and the Intervenor urged the agreement
as a bar to this proceeding.
We find no merit in the position of the Intervenor and the Employer.
As noted above, the petition was filed on September 11, 1 day before
the actual signing of the contract. Our precedents are clear that a
petition filed on or before the date preceding the execution of a collec-
tive bargaining contract prevents that instrument from serving as a
bar.2 And it is immaterial that the effective date of the contract was
retroactive to the date of the filing of the petition.3 Moreover, apart
from these considerations, inasmuch as the initial term of the contract
has already expired, the contract is clearly no bar to petitions which
antedated its operative automatic renewal notice date.
In view of the foregoing, no obstacle exists to a present determina-
tion of representatives.
We find that a question affecting commerce has arisen concerning the
representation of employees of the Employer, within the meaning of
Section 9 (c) and Section 2 (6) and (7) of the Act.
IN. TILE APPROPRIATE UNIT
We find, in, accord with the agreement of the parties, that all truck
drivers, warchousemen, and helpers at the New Orleans, Louisiana,
warehouses, of the Employer, excluding all supervisory employees with
authority to hire, promote, discharge, discipline, or otherwise effect
'The Intervenor and the Employer admit that, just before executing their agreement,
they discussed the contents of the Petitionei's letter It also appears that the letter was
the first notice the Employer had of the Petitioner's claim
2 Matter of Mississippi Lime Company of Missouri, 71 N L R. B. 472
Matter of Ste Genevieve Lime cC Qnariy Conipanp, 70 N I. R B 1259
Although the amended petitions tollowed the contract, they merely set forth the full
title of the Eniplojer by adding the names of the partners, and, therefore, did not affect
the timeliness of the original petitions on the contract bar issue.
Matter of Geier al Electric X-Ray Cot poration, 72 N L R B 1245
3 Matter of Public Serzi,ce Corporation of New Jersey, 72 N. L. It. B. 224 , Matter of
Continental Gin Company, 72 N. L R B. 1208.
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384 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
changes in the status of employees, or effectively recommend such
action, constitute a unit appropriate for the purposes of collective
bargaining within the meaning of Section 9 (b) of the Act.4
DIRECTION OF ELECTION
As part of the investigation to ascertain representatives for the
purposes of collective bargaining with Gordon W. Callender, Marshall
C. Callender, Wilson S. Callender, George Boizelle, d/b/a Kohiman
Bros. & Sugarman Company, New Orleans, Louisiana, and with Gor-
don W. Callender, Marshall Callender, George Boizelle and Miss Alma
0. Pearce, d/b/ a Seago-Callender Company, New Orleans, Louisiana,
an election by secret ballot shall be conducted as early as possible, but
not later than thirty (30) days from the date of this Direction, under
the direction and supervision of the Regional Director for the Fif-
teenth Region, acting in this matter as agent for the National Labor
Relations Board, and subject to Sections 203.55 and 203.56, of National
Labor Relations Board Rules and Regulations-Series 4, among the
employees in the unit found appropriate in Section IV, above, who
were employed during the pay-roll period immediately preceding the
date of this Direction, including employees who did not work during
said pay-roll period because they were ill or on vacation or temporarily
laid off, and including employees in the armed forces of the United
States who present themselves in person at the polls, but excluding
those employees who have since quit or been discharged for cause and
have not been rehired or reinstated prior to the date of the election,
to determine whether they desire to be represented by Transport
Workers Union of America, Local 206, C. I. 0., or by International
Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers
of America, Local 270, for the purposes of collective bargaining, or
by neither.
CHAIRMAN HERZOG took no part in the consideration of the above
Decision and Direction of Election.
4 This unit conforms to the unit covered by the afore -nientloned contract between the
Employer and the Intervenor.
5 Any pai ticipant in the election herein may , upon its prompt request to, and approval
thereof by , the Regional Director , have its name removed from the ballot.