New Jersey Oyster Planters and Packers Association, Inc.

National Labor Relations Board - Board Decisions

Apr 15, 1952

98 N.L.R.B. 1187 (N.L.R.B. 1952)

NEW JERSEY OYSTER PLANTERS AND PACKERS ASSN., INC. 1187
A problem remains whether the 5 local route salesmen alone, ex-
cluding the remaining 31 driver-salesmen, constitute a separate ap-
propriate unit. The Employer's sales organization operates as an
integrated whole. The 4 supervisors who exercise authority over
driver-salesmen throughout the entire distribution area are all based
at Terre Haute. When new driver-salesmen are recruited for service
in outlying areas, they must be interviewed by the route sales man-
ager, who is located at Terre Haute 5 From' time to time the out-
lying driver-salesmen attend general meetings at the Terre Haute
plant. Moreover, the distances separating the Employer's different
sales areas are similar to those in other cases in which the Board
has combined central city and outlying salesmen or driver- salesmen
into a single units We find, therefore, that any unit which includes
the local route driver-salesmen must, to be appropriate, include also
the remaining driver-salesmen.
At the hearing the Petitioner expressed itself as not desirous of
representing any such over-all unit of driver-salesmen. For this
reason, as well as because the Petitioner has made no sufficient show-
ing of interest in such a unit, we will direct no election for the driver-
salesmen.
On the entire record, the Board finds that all over-the-road truck
drivers working from the Employer's plant in Terre Haute, Indiana,
excluding all driver-salesmen and all supervisors as defined in the
Act, constitute a unit appropriate for the purposes of collective bar-
gaining within the meaning of Section 9 (b) of the Act.7
[Text of Direction of Election omitted from publication in this
volume.]
6 So far as the record indicates, the branch managers at Evansville and Indianapolis
do not themselves hire any driver-salesmen.
G National Brands, Inc., 81 NLRB 1163; American Bakeries Company, 74 NLRB 399.
See also, Kraft Foods Company, 91 NLRB 525 , and John F. Trommer, 90 NLRB 1200,
involving advance-order salesmen
7 Although the Employer is currently recognizing the Petitioner as the representative
of the over-the-road drivers , that fact does not prevent the Petitioner from obtaining an
election among these employees if it desires to have its representative status formalized
by Board certification . General Bow Company, 82 NLRB 678.
NEW JERSEY OYSTER PLANTERS AND PACKERS ASSOCIATION , INC. and
UNITED PACKINGIIOUSE WORKERS OF ADIERICA , CIO, PETITIONER.
Case No . 4RC-1413. April 15,1952
Decision and Order
Upon a petition duly filed under Section 9 (c) of the National
Labor Relations Act, a hearing was held before Harold X. Summers,
98 NLRB No. 174.
1188 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
hearing 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 [Chairman Herzog and Members Styles and Peterson].
Upon the entire record in this case, the Board finds :
1. The Employer is engaged in commerce within the meaning of
the Act.
2. The labor organizations involved claim to represent employees
of the Employer.
3. No question affecting commerce exists concerning the representa-
tion 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 Intervenor 1 and the Employer contend that their current con-
tract is a bar to a present determination of representatives, while
the Petitioner contends that the contract contains an illegal union-
security clause and therefore cannot operate as a bar.
The employees sought to be represented by the Petitioner have been
represented by the Intervenor for many years. The current contract
between the Employer-Association on behalf of itself and its mem-
bers, and the Intervenor, was executed in 1949, effective from October
1, 1949, to September 30, 1950, and from year to year thereafter unless
notice to terminate was given no later than 60 days prior to the ex-
piration date. No such notice was given prior to the end of the first
or second years. The contract therefore was automatically renewed
and is currently in effect until September 30, 1952. It therefore is a
bar to the instant petition unless, as urged by the Petitioner, it con-
tains an illegal union-security clause.
The contract in question, as originally executed, admittedly con-
tained an illegal union-security clause? The Intervenor and the As-
sociation contend, however, that this defect in the contract was cured
by a supplemental agreement entered into between them on November
12, 1951,3 before the Petitioner, on November 23, 1951, made its claim
to representative status.
United Oystermen 's Union , Local 19600, AFL.
s Art. I, Sec. 1 of this agreement provided : "It is agreed that a ll classes of employees
shall be members of the Local Union and only members with paid up due books or those
with permits issued by an Officer of the Local Union, shall continue to work."
i At the hearing, the Petitioner expressed some doubt that the supplementary agreement
was actually signed on November 12. The document itself bears the date November 12,
1951, and J. J. Lorden, the Intervenor's organizer , testified that he and the other signatories
signed the agreement on that day. This testimony was not successfully impeached, and
we note that in its brief the Petitioner does not argue that the date was other than
November 12. We find that the supplementary agreement was in fact entered into on
November 12, 1951, as contended by the parties thereto.
NEW JERSEY OYSTER PLANTERS AND PACKERS ASSN., INC . 1189
The supplemental agreement provides :
The Employer and the Union hereby agree to delete section
#1, article #1, of the existing agreement between the Employer
and the Union dated October 1st., 1949, and to substitute in its
place the following :
All employees now or hereafter covered by this agreement shall
become members of the Union on or after the thirtieth day fol-
lowing the effective date of this agreement or the date of their
employment, whichever is later, and shall remain members of the
Union during the life of this Agreement in accordance with the
provisions of Section 8 (a) (3) of the National Labor Relations
Act.
The Petitioner does not dispute that this amendment, if effective,
conforms with the requirements of the Act, and we so find. The Pe-
titioner does contend, however, that the amendment is insufficient to
cure the defect in the contract urged in bar because (1) it was never
ratified by the employees and therefore never became binding on the
parties; and (2) it was never published to the employees, and conse-
quently in practical effect the illegal closed shop continues to operate.
As to the first contention, the record shows that the supplementary
agreement was signed for the Intervenor by the president and the
business agent of the Intervenor and by the organizer of the Inter-
venor's International. It has never been ratified by the employees.
The original contract was signed by the same officers. The Inter-
venor's witness 4 testified that the constitution of the organization
required that contracts affecting wages and conditions of employment
must be ratified by the union membership, that this requirement ap-
plied to the original contract, that the parties understood that that
contract would not become effective until it was so ratified, and that
it was ratified before it was signed. With regard to the union-
security clause amendment, however, his undisputed testimony was as
follows :
It wasn't ratified because it wasn't necessary; it didn't change
any conditions; it was an amendment to an existing clause to
make it legal; it didn't change any conditions of the workers,
therefore it didn't need it.
The record further shows that the parties understood that the amend-
ment became effective immediately, without ratification. No conten-
tion is made that either the original contract or the supplementary
agreement themselves provide for ratification by the employees.
4 J. J. Lorden , organizer for the International.
998666-vol. 98-53-76
1190 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Under all the circumstances, it appears that these officers possessed
at least apparent authority to bind the union. In these circum-
stances, we do not look behind this apparent authority, and find that
the supplemental agreement became effective upon its execution .5
As to the Petitioner's second contention regarding lack of knowl-
edge of the amendment by the employees, we find that as the supple-
mental agreement was in writing and signed by the Employer and
the Intervenor, acting as the collective bargaining representative of
the employees, there was no need, so far as the contract bar issue is
concerned, that the employees be directly advised of the amendment 6
We therefore find that the current contract between the Associa-
tion and the Intervenor is and was, at the time of the filing of the
petition, entirely lawful on its face. As the contract has a substantial
period yet to run, we find that it is a bar to this proceeding. Ac-
cordingly, we shall dismiss the petition.
Order
IT IS HEREBY ORDERED that the petition filed herein be, and it hereby
is, dismissed.
b See Avco Manufacturing Corporation, 97 NLRB 645 ; Alaska Salmon, Industry, Inc.,
89 NLRB 1379.
6 See Canada Dry Ginger Ale, Incorporated , 97 NLRB 597 , and cases cited therein.
AMERICAN CAN COMPANY and LOCAL 79, INTERNATIONAL BROTHER-
HOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF
AMERICA, AFL, PETITIONER . Case No. 10-RC-1694. April 15,
1952
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 Morgan C. Stanford, hearing
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 [Chairman Herzog and Members Houston and Murdock].
Upon the entire record in this case, the Board finds :
1. The Employer is engaged in commerce within the meaning of
the Act.
2. The labor organizations involved claim to represent certain em-
ployees of the Employer.
3. The Intervenor, United Steelworkers of America, CIO, con-
tends that its contract of March 17, 1951, covering the .production
98 NLRB No. 175.