Indiana Desk Co., Inc.

In the Matter of INDIANA DESK COMPANY, INC., EMPLOYER and LOCAL No. 331, UPHOLSTERERS' INTERNATIONAL UNION OF NORTH AMERICA, AFL, PETITIONER Case No. 35-RC-136.-Decided March 15, 1949 DECISION AND DIRECTION OF ELECTION Upon a petition duly filed, a hearing was held before a hearing officer of the National Labor Relations Board. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed. At the hearing the Employer moved to dismiss the petition on the ground that an existing contract between it and the Intervenor 1 constitutes a bar to this proceeding, and that the peti- tion was not timely filed. For reasons hereinafter discussed, the motion is denied.2 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-man panel consisting of the undersigned Board Members.* Upon the entire record in the case, the Board finds : 1. The Employer is engaged in commerce within the meaning of the National Labor Relations Act. 2. The labor organizations involved claim to represent employees of the Employer. 3. The question concerning representation : On December 15, 1947, the Employer entered into a collective bar- gaining contract with "United Furniture Workers of America and its Local No. 331-J or its successor." 3 This contract was to remain in effect for 1 year from December 9, 1947, and contained a 60-day auto- matic renewal clause and a clause providing for reopening with respect i Local No 336, Furniture Workers of America, affiliated with United Paper Workers of America, CIO , was permitted to intervene at the hearing on the basis of the contract re- ferred to above. S The Employer 's request for oral argument is hereby denied, inasmuch as the facts and issues in the case are adequately presented in the record and the Employer 's brief. *Houston, Reynolds, and Murdock. This contract was- executed follgwing the election directed by the Board in Matter of Indiana Desk Company, Inc, Case No 11-R-1064, 69 N L. R. B. 1083 , 71 N L. R. B. 486. which was won by the contracting union 82 N. L. R. B., No. 9. 103 104 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to wages after June. 16, 1948, upon 60 days' notice by either party. During the term of this contract Local 331-J disaffiliated from the United Furniture Workers of America and under the name of Furni- ture Workers of America, Local No. 336, obtained a charter from the United Paper Workers of America, CIO. On July 15, 1948, Local No. 336, the Intervenor herein, notified the Employer by letter of the new affiliation and requested recognition as the successor to Local No. 331-J and asked that the "present agreement" be reopened. Ne- gotiations were thereafter begun between the Employer and the Intervenor. On September 9, 1948, the Employer and the Intervenor executed an agreement whereby they agreed to continue the 1947 contract "in force and effect without change to and including the 1st day of September, 1949, except as said `Agreement' may be modified, amended or changed by this agreement." The agreement of September 9 contained new provisions with respect to wages and piece rates, and eliminated a bonus plan and the wage reopening clause which appeared in the orig- inal contract. Insofar as the record shows, no notice was ever given by either the Employer or the Intervenor, to the other, to the effect that the contract of December 15, 1947, had been abandoned, or other- wise had become ineffective in the period between the Intervenor's dis- affiliation from the United Furniture Workers of America, and the execution of the new contract. On September 2, 1948, Upholsterers' International Union of North America, AFL, herein called the International, notified the Employer by registered mail that it represented a majority of the Employer's employees and requested a bargaining conference. On Monday, Sep- tember 13, the Board received the original petition filed herein. That petition was executed and mailed by the International on Friday, Sep- tember 10, 1948. In the meantime, the Employer on September 11, 1948, replied to the International's claim, denying knowledge of its majority, and refusing a conference on the basis of the alleged con- tract with the Intervenor. Then, on October 2,1948, the International answered the Employer's letter of September 11, 1948, and again in- dicated desire for recognition. The Employer made no response to this letter, and on October 28, 1948, the Petitioner filed an amended petition naming Local No. 331, Upholsterers' International Union of North America, AFL, as the Petitioner, instead of the International, which, as noted above, had filed the original petition on September 13, 1948. Although not too clearly stated at the hearing or in its brief, the Employer apparently takes the position that the 1947 contract coupled with the contract of September 9, 1948 , constitutes a bar to an election INDIANA DESK COMPANY, INC. 105 at this time. It also contends, as does the Intervenor, that in any event as the petition was not filed within 10 days of the representation claim of September 2, 1948, the September 9, 1948, contract bars an election under the General Electric X-Ray doctrine. The Petitioner contends that the petition was timely filed with respect to the Bill B date of the original contract of December 9, 1947, and that the Em- ployer and the Intervenor executed a premature contract which is not a bar. We find that no bar exists to an immediate determination of repre- sentatives for the following reasons : Ordinarily where a contract pro- vides for modification during its term, the negotiation or effectuation of such modification by the parties does not operate to remove the contract as a bar to a rival claim, provided there is no extension of the term of the contract.' However, where, as in the instant case, the parties not only open up the contract according to the modification provision, but also prematurely extend the expiration date of the con- tract, and the petition is otherwise timely filed, the contract cannot constitute a bar.5 Therefore, the petition having been filed prior to the operative date of the automatic renewal clause, or Mill B date, of the 1947 contract, that contract, even if still in effect, cannot operate as a bars Moreover, the petition, having been timely filed as to the 1947 contract, is not barred by the 1948 contract, which was executed before the Mill B date of the 1947 contract and extended the expiration date of that contract, resulting in a premature extention of the 1947 contract.' The Intervenor takes the position that from the time of its dis- affiliation from the United Furniture Workers of America until the execution of the 1948 contract, no contract was in effect. We find it unnecessary to decide this question because even if the 1948 contract was a totally new contract executed after a period of time during which no contract existed, we find for reasons stated below that the petition was timely filed within the meaning and intent of the General Electric X-Ray doctrine.8 The claim was made September 2, 1948; 4 Matter of Miller Meters, Inc., 71 N. L. R B. 1331 ; Matter of Greenville Finishing Company, Inc., 71 N. L. R. B. 436; Matter of S. it W. Fine Foods Inc., 74 N. L. R. B. 1316. S Matter of Houston Packing Company, 71 N. L. R. B. 1232 ; Matter of Teletype Cor- poration, 79 N L. R B. 1044 "Matter of Philip B. Wallace, Jr., George A. Wallace, Emily A. McPhee, d/b/a U. S. Pipe and Manufacturing Company, 78 N. L. R B. 15. 7 Matter of Houston Packing Co., 71 N. L. R. B. 1232; Matter of Philip B. Wallace, Jr., George A. Wallace, Emily A. McPhee, d/b/a U. S. Pipe and Manufacturing Company, 78 N. L. R. B. 15; Matter of Continental Can Co., 78 N. L. R. B. 819; Matter of Teletype Cor- poration, 79 N. L. It. B 1044. S Matter of General Electric X-Ray Corporation, 67 N. L. R. B. 997, the Board held that where a bare claim is presented, and a contract is executed between the time the claim is made and the time the petition is filed, the petition must be filed within 10 days after the claim is made, or the contract operates as a bar, unless there are extenuating circum- stances. 106 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the contract was executed September 9, 1948; and the petition was filed Monday, September 13, 1948 (actually the eleventh day from the time the claim was made). Ordinarily the petition, having been filed more than 10 days after the Petitioner makes its representation claim, would be barred by the contract executed during that period and dismissed. However, in this case the petition was executed and mailed to the Regional Director's office by registered mail on Friday, September 10, 1948. As the Re- gional Director's office was closed on Saturday and Sunday, September 11 and 12, the petition was not received and docketed there until Monday, September 13. Under these circumstances, we do not believe that strict adherence to the 10-day rule of the General Electric X-Ray doctrine would be warranted in this case.9 We find that a question affecting commerce exists concerning the representation of employees of the Employer, within the meaning of Section 9 (c) (1) and Section 2 (6) and (7) of the Act. 4. The Appropriate unit : The petitioner seeks a unit composed of all production and main- tenance employees, including watchmen, firemen, and intracity truck drivers, but excluding office clerical employees, temporary employees, foremen, superintendents, and all other supervisors.0 Some question exists as to the inclusion in the appropriate, unit of the following categories : Foremen: The Petitioner would include the four foremen in the proposed unit. The Employer and the Intervenor take no position on their inclusion or exclusion. Although these employees have no authority to hire or discharge, they make effective recommendations affecting the hiring or discharge of employees. We shall therefore exclude them from the appropriate unit 11 Cabinet Makers: The Petitioner would include the cabinet makers in the proposed unit for the reasons that they are included in similar units in other shops in the town, in which the Employer operates. The Employer and the Intervenor take no position with respect to the inclusion of these employees. Although the cabinet makers possess some slight control over their apprentices, they have no authority to 9 Cf. Section 203.86, National Labor Relations Board Rules and Regulations -Series 5, as amended, which provides as follows : In computing any period of time prescribed or allowed by these rules , the day of the act, event, or default after which the designated period of time begins to run, is not to be included The last day of the period so computed is to be included unless it is a Sunday or a legal holiday, in which event, the period runs until the end of the next day, which is neither a Sunday nor a holiday. 10 The Petitioner took the position at the hearing that a unit was desired which was identical with the one established by the Board in Case No. 11-R-1064, referred to in footnote 3. 31 Matter of Lloyd Corp., Ltd., 79 N. L. R. B. 1477. INDIANA DESK COMPANY, INC. 107 hire or discharge, or effectively to recommend such action. Therefore, we shall include them in the appropriate unit. Watchmen: The Petitioner would include the watchmen in the pro- posed unit.12 The Employer and the Intervenor take no position on their inclusion. These employees spend 15 to 20 minutes out of each hour in making rounds about the plant. The balance of their time they spend in the boiler room where they keep the fire going in the boiler. According to established practice, we shall include them in the pro- posed production and maintenance unit.13 We find that all production and maintenance employees at the Employer's Jasper, Indiana, plant, including watchmen, cabinet makers, firemen, and intracity truck drivers, but excluding office clerical employees, temporary employees, foremen, superintendents, and all supervisors as defined in the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b). DIRECTION OF ELECTION As part of the investigation to ascertain representatives for the purposes of collective bargaining with Indiana Desk Company, Inc., Jasper Indiana, an election by secret ballot shall be conducted as early as possible, but not later than 30 days from the date of this Direction, under the direction and supervision of the Regional Director for the Region in which this case was heard, and subject to Sections 203.61 and 203.62 of National Labor Relations Board Rules and Regula- tions-Series 5, as amended, among the employees in the unit found appropriate in paragraph numbered 4, above, who were employed during the pay-roll period immediately preceding the date of this Direction of Election, including employees who did not work during said pay-roll period because they were ill or on vacation or temporarily laid off, 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, and also excluding employees on strike who are not entitled to reinstatement, to determine whether they desire to be represented, for purposes of collective bargaining, by Local No. 331, Upholsterers' International Union of North America, AFL, or by Local No.. 336, Furniture Workers of America, affiliated with United Paper Workers of America, CIO, or by neither.14 The testimony at the hearing is conflicting with respect to whether there are two or four watchmen. " Matter of Steelweld Equipment Co., Ino., 76 N. L. R. B 831. 14 Any participant in the election directed herein may , upon prompt request to, and approval thereof by, the Regional Director, have its name removed from the ballot.