Swift & Co.

National Labor Relations Board - Board Decisions

Aug 26, 1974

213 N.L.R.B. 49 (N.L.R.B. 1974)

SWIFT & COMPANY
Swift & Company and Local P-46, Amalgamated Meat
Cutters & Butcher Workmen of North America,
AFL-CIO, Petitioner. Case 18-RC-9706
August 26, 1974
DECISION ON REVIEW AND ORDER
On November 9, 1973, the Acting Regional Direc-
tor for Region 18 issued his Decision and Direction
of Election in the above-entitled proceeding, in which
he directed an election in the agreed-upon unit of all
production and maintenance employees at the
Employer's Marshalltown, Iowa, plant, finding that
an existing "Master Agreement," covering such em-
ployees among others at other plants, was inoperative
as a bar to an immediate election because a contractu-
al provision for ratification had not been shown to
have been satisfied as to the Marshalltown plant.
Thereafter, in accordance with Section 102.67 of the
National Labor Relations Board's Rules and Regula-
tions, Series 8, as amended, the Employer and one of
the Intervenors' filed timely requests for review of the
Acting Regional Director's decision on the grounds
that, in resolving the contract-bar issues herein, he
made findings of fact which are clearly erroneous and
departed from officially reported Board precedent or
otherwise afforded compelling reasons for reconsider-
ation of Board's policies with regard to proof of ratifi-
cation of master agreements. The Petitioner filed a
statement in opposition to these requests for review,
but did not itself request review.
By telegraphic order dated April 23, 1974, the
Board granted the requests for review and stayed the
election pending decision on review. Thereafter, the
Intervenor filed the brief it had submitted to the Re-
gional Director as its brief on review; the Petitioner
filed a brief in support of the Acting Regional
Director's decision in which it sought to raise new
issues in addition to those on which review had been
granted;' and the Employer filed a brief on review as
well as a "reply letter" in which it pointed to rebuttal
evidence in the record which related to certain of the
Petitioner's new contentions.'
The Board has considered the entire record in this
case in the light of the grounds relied on for review,
including all submissions from the parties as limited
1 National Brotherhood of Packinghouse & Industrial Workers, hereinaf-
ter referred to as National Brotherhood or NBPIW . At the hearing, the
National Brotherhood also intervened on behalf of its Marshalltown local,
Local 50, NBPIW.
2 This attempt contravenes Sec. 102.67(g) of the Board 's Rules and Regula-
tions, Series 8, as amended , which restricts briefs on review "to the issues
raised in the request for review."
3 Thereafter, Petitioner filed a letter clarifying certain earlier statements as
obvious clerical error or as arguable.
49
thereto,4 and makes the following findings:
This case presents the question of the sufficiency of
the ratification procedures relating to a Master Agree-
ment urged as a bar to an election in an included
single-plant unit.
The Employer has executed Master Agreements
with the National Brotherhood including the Mar-
shalltown, Iowa, plant involved in the instant pro-
ceeding since 1943.5 The Master Agreement which
preceded the current Master Agreement between the
Employer and the Intervenor was effective from April
1, 1970, until September 1, 1973, and covered seven
plants represented at the local plant level by five lo-
cals. In late July 1973, the Employer and the National
Brotherhood began negotiations on the current, ex-
isting Master Agreement. The negotiations began in
late July with a constitutional negotiating committee
composed of members from each Master Agreement
local designated by such locals and the National
Brotherhood's president, George Burton, repre-
senting the employees, and Mr. Joseph Miller, repre-
senting the Employer. The negotiations culminated
on August 23, 1973, when Burton and Miller executed
a new agreement to be effective from September 1,
1973, until September 1, 1976. The agreement con-
tained the following language:
It is understood that this agreement is signed by
the Union subject to ratification by the Local
Unions.
Mr. Miller testified that the understanding was that
the Employer would get the "ratification notice" as
soon as possible, hopefully prior to the advance time
required to put the contract into effect by September
1. Thereafter, the five local unions held separate meet-
ings for the purpose of voting on ratification 6 By the
night of August 28, 1973, three of the five locals, rep-
resenting five of the seven plants and more than two-
thirds of the employees covered by the Master Agree-
ment had ratified by unanimous votes.' After learning
this, President Burton notified the Employer by tele-
gram, sent the evening of August 28 and received by
4 See Sec . 102.67(g) of the Board's Rules and Regulations , Series 8, as
amended.
'Swift & Company, 124 NLRB 50, 51 (1959).
6 Local 6 represents 75 unit employees and has the same number of mem-
bers at I plant ; Local 10 represents 32-35 unit employees and has 33 mem-
bers at I plant; Local 12 represents 295 unit employees at 3 plants and has
the same number of members ; Local 50 represents 180 employees at Mar-
shalltown, but the record does not disclose the number of members it has.
A compilation of these figures indicates a membership of at least 748 out of
a total of 940 employees covered by the Master Agreement.
7 Locals 10, 12, and 57 with a combined membership of 663 among 675
employees. The numbers of members attending the meetings of Locals 10
and 50 are not indicated in the record , but the votes-are recorded as having
been unanimous . National Brotherhood President Burton is also president of
Local 12 and testified that approximately 110 members were in attendance
and voted unanimously to ratify.
213 NLRB No. 6
50 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Mr. Miller on August 29, as follows:
THE NATIONAL BROTHERHOOD ... MASTER AGREE-
MENT LOCALS HAVE, BY MAJORITY MEMBERSHIP AC-
TION, RATIFIED AND APPROVED THE AGREEMENT....
Following receipt of this telegram confirming ratifica-
tion, the Employer put the Master Agreement into
effect as of its effective date, September 1, 1973, in all
covered plants, including Marshalltown. At the time
Burton sent the telegram, he did not know the results
of the votes, if any, on ratification by two locals,
representing two of the seven plants and approximate-
ly one-third of the employees covered by the Master
Agreement. He later learned that the membership of
one local had rejected ratification by a vote of 20 to
40 and that the Marshalltown local had not ratified.
The instant petition for the Marshalltown employees
was filed September 4, 1973 8 At no time has the mem-
bership of the Marshalltown local, Local 50, voted on
the question of ratification .9
The Acting Regional Director found that the 1973
Master Agreement does not bar the requested election
in the Marshalltown unit because it was not ratified
by Local 50, the Marshalltown local. He held that the
contract language which requires "ratification by the
Local Unions" suggests "ratification by each Local
Union" and that neither the Employer nor the Na-
tional Brotherhood presented any clear or conclusive
evidence that any procedure other than "ratification
by each Local Union" had been contemplated. He
regarded the record as subject to several interpreta-
tions, as requiring ratification by (1) "each Local
Union"; (2) "a majority of the combined voting mem-
bership of all Local Unions together"; or (3) "a major-
ity of the Local Unions." He regarded the record as
8 The Acting Regional Director rejected the Petitioner 's contention that its
petition was filed August 31, 1973. Its petition was received on that date with
a covering letter stating , "Enclosed is our request for Petition which we wish
to file on September 1, 1973, or as soon thereafter as your office can accept
it as a petition filed. The contract expiration date is September I, 1973."
Since , pursuant to such instructions , the petition was docketed as "filed" on
September 4, 1973, the Acting Regional Director found it was filed on that
date and that therefore its timeliness was considered in relation to the Master
Agreement executed on August 23, 1973, to be effective September 1, 1973.
Petitioner filed no request for review as to this finding . Its attempt to raise
this issue in its brief on review is rejected as untimely . See In . 2, supra.
9 Local 50 met on August 27 and tabled a motion to ratify until September
5. At the September 5 meeting , the motion was withdrawn and a new motion
passed to refer the Master Agreement back to the national negotiating com-
mittee for negotiation of an incentive plan applicable to the Marshalltown
unit. (This proposal had been made to, and rejected by, the national negotiat-
ing committee during the negotiations prior to the agreement executed on
August 23.) On September 7 after learning that the Employer had put the new
agreement into effect at Marshalltown, eight members of Local 50's executive
committee signed a letter to the NLRB "to set the record straight" that Local
50 had not ratified the new agreement . At the next meeting of Local 50, on
September 11, the members were informed by a first national vice president
of the National Brotherhood that they would not have to vote on ratification
because the contract had already been ratified and put into effect.
establishing only the third possible ratification proce-
dure to have been satisfied and concluded that the
contracting parties "failed to meet their burden of
proving that the ratification procedure that was con-
templated was in fact met."
The Employer and the National Brotherhood con-
tend that the 1973 Master Agreement was duly "rat-
ified by the Local Unions" "by majority membership
action," as confirmed by the telegram sent by Nation-
al Brotherhood President Burton to the Employer.
The Employer urges that it should be permitted to rely
on such report of adequate ratification without fur-
ther inquiry into a notifying union's internal proce-
dures for ratification, as has been its practice over the
years in dealing with both the Intervenor and the
Petitioner's parent.1° The National Brotherhood con-
tends that "it is elementary that in voting procedures
or on ratification procedures the majority rules and it
is not necessary for a unanimous vote." Both argue
that there is no evidence supporting the finding that
the contract contemplated "ratification by each Local
Union" rather than "ratification by majority action by
the Local Unions" and that the procedures herein suff-
ice to establish the 1973 Master Agreement a bar to
an election in the Marshalltown unit despite the fact
that the employees there had not voted on ratification.
We find merit in these contentions.
Although the Master Agreement makes "ratifica-
tion by the Local Unions" a condition precedent to
contractual validity, it does not particularize the pro-
cedure to be followed. Ratification by each local
union is not explicitly required." The evidence that
members of Local 50, the Marshalltown local, be-
lieved that their local union had to ratify in order for
the contract to bar the election petition as to that
plant is clearly without probative value in establishing
the existence of such a requirement. As indicated, the
National Brotherhood construed the required ratifi-
cation by the local unions to require majority mem-
bership action and communicated to the Employer,
prior to the petition's being filed, that ratification had
10 The record establishes that the Employer received notifications of ratifi-
cations of the Master Agreements from responsible officials of both the
National Brotherhood and the Amalgamated Meat Cutters and put the
agreements into effect . Thereafter , it received word that some locals from the
Amalgamated Meat Cutters had not approved the Master Agreement with
that Union . Both contracts required "ratification by the Local Unions." At
one time, both Master Agreements required "ratification by a majority of the
members covered" Swift & Company, 124 NLRB 50, 52 ( 1959).
11 Cf. International Harvester Company, Melrose Park Plant, 87 NLRB
1101, 1102 (1949), in which the master agreement explicitly conditioned the
applicability of a master agreement to a single covered plant upon ratifica-
tion by "each of the locals" and notice by that local to the employer of the
single-plant employee action. This result is consistent with the relevant rule
as to the necessity for individual plant actions in reference to master agree-
ments as stated in Appalachian Shale Products Co., 121 NLRB 1160, 1164
(1958): "a master agreement is no bar to an election at one of the employer's
plants where by its terms it is not effective until a local agreement has been
completed."
SWIFT & COMPANY 51
been accomplished. In our view, that interpretation
does not appear extraordinary or unreasonable; 12
both a majority of the employees and a majority of the
locals had voted favorably on the ratification issue.
We believe that the Employer was entitled to rely
on the report of the individual with whom it had
negotiated that the contract which had been reached
had, in fact., been ratified. As it happens, Burton ap-
pears to have been authorized to make such represen-
tation, since he was the National Brotherhood's
national president, the chief spokesman for the na-
tional negotiating committee, had sole constitutional
authority to execute collective-bargaining agree-
ments, and was the sole signatory for the Union on the
Master Agreement. It would indeed be disruptive of
sound collective bargaining if, when advised by a
union representative with whom it had just negotiated
a contract that ratification had been accomplished, an
employer could not rely on that representation, but
rather were required to inquire further into (a) that
individual's authority to communicate the fact of rati-
fication and (b) whether or not the reported ratifica-
tion comported with all the union's internal
requirements. 13 Accordingly, we conclude that a bind-
ing contract was arrived at upon the Employer's re-
ceipt of the notice of ratification.
For these reasons, we find that the 1973 Master
Agreement was duly ratified as to all plants covered
therein, and put into effect prior to the filing of the
instant petition, and constitutes a bar to the pro-
cessing of the petition. We shall therefore dismiss the
petition.
ORDER
It is hereby ordered that the petition filed herein be,
and it hereby is, dismissed.
MEMBERS KENNEDY AND PENELLO , dissenting:
This case presents an application of the contract-
bar principle enunciated in Appalachian Shale Prod-
ucts Co.,14 that, where a contract requires ratification
as a prior condition, the contract does not bar a repre-
sentation petition unless ratified prior to the filing of
the petition. It is well settled that the party or parties
asserting that a contract is a bar to an election bear
the burden of proving that the contract was properly
12 Thus, "subject to ratification by the employees" is frequently construed
to mean "subject to a vote showing majority approval by the employees" in
cases presenting ratification questions to the Board . See, e .g., M & M Oldsmo-
bile, Inc., 156 NLRB 903, 906 ( 1966), enfd . 377 F.2d 712 (C.A. 2, 1967);
General Motors Corporation, Chevrolet Division (Livonia Spring and Bumper
Plant), 151 NLRB 156, 159 (1964).
13 The Board has held in unfair labor practice cases that "it is for the union,
not the employer, to construe and apply its internal regulations relating to
what would be sufficient to amount to ratification ." M & M Oldsmobile, Inc.,
supra, 156 NLRB at 905--906, 377 F.2d at 717.
121 NLRB 1160 (1958).
executed prior to the filing of the petition. We are not
satisfied that this burden has been met in the present
case.
The pertinent facts show that the Petitioner seeks to
represent a unit of production and maintenance em-
ployees at the Employer's Marshalltown, Iowa, plant.
The Marshalltown unit has been represented by the
Intervenors and covered by Master Agreements along
with other units at several of the Employer's plants.
The Master Agreement effective April 1, 1970, until
September 1, 1973, described each plant as a separate
unit. Negotiations with the Employer for a new Mas-
ter Agreement were conducted by a negotiating com-
mittee composed of representatives of the National
Brotherhood and elected representatives from the in-
dividual plant units including representatives from
the Marshalltown unit. On August 23, 1973, the Em-
ployer and the National Brotherhood executed a new
Master Agreement effective September 1, 1973, until
September 1, 1976, which provides in part: "It is un-
derstood that this agreement is signed by the Union
subject to ratification by the Local Unions." (Empha-
sis supplied.) Thereafter, the terms of the Master
Agreement were put into effect in all covered units
including the Marshalltown unit even though the
Marshalltown local never ratified the Master Agree-
ment.
In our view, the quoted language of the 1973 Agree-
ment, set forth above, requires ratification by each
local union, including the Marshalltown local. As in-
dicated earlier, the parties claiming that a contract is
a bar to an election bear the burden of proof. It is
clear to us that on this record the Intervenors and
Employer have failed to meet their burden. They have
failed to introduce evidence to support a conclusion
that "ratification by the Local Unions" meant any-
thing other than local union. Nor have they elicited
testimony as to what procedure was followed to
achieve ratification of prior contracts.
Apparently aware of the glaring omissions in the
record the majority states that it would be a disruption
of sound collective bargaining if an employer could
not rely on the representation of a union representa-
tive that ratification had been accomplished. If our
colleagues really mean this they have in effect re-
moved ratification as a prerequisite and have replaced
it with a mere representation on behalf of a union to
an employer. We fail to see how ignoring the desires
of the employees promotes sound collective bargain-
ing.
In view of the foregoing, we find in agreement with
the Acting Regional Director that the 1973 Agree-
ment was not ratified insofar as the Marshalltown
unit is concerned and is therefore not a bar to the
petition in this case.