Kimsey Manufacturing Co.

In the Matter of J. E. KIMSEY D/B/A KIMSEY MANUFACTURING C03I- PANY,1 EMPLOYER and SPOKANE DISTRICT COUNCIL, LUMBER & SAW- MILL WORKERS, UNITED BROTHERHOOD OF CARPENTERS AND JOINERS OF AMERICA, A. F. L., PETITIONER Case No. 19-RC-409.-Decided December 15, 1949 DECISION AND DIRECTION OF ELECTION Upon a petition duly filed, a hearing was held before Melton Boyd, 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 National Labor Relations Act, the Board has delegated its powers in connection with this case to a three-member panel [Chairman Herzog and Members Reynolds and Gray]. Upon the entire record in this 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 certain em- ployees of the Employer. 3. The Intervenor asserts that its contract with the Employer is a bar to this proceeding. At some time in 1947,3 the Intervenor and the Employer entered into a contract automatically renewable for yearly periods as of April 1 in each year in the absence of notice to change its terms. The contract provided that it should continue in effect during negotiations to revise it, if such negotiations continued beyond April 1, the yearly expiration date. It also provided, however, that if such negotiations should not result in a new agreement on or before May 1, the contract should terminate on that date. On June 1, 1948, the parties executed a "stipulated agreement" whereby they agreed to a change in the wage rates and extended their ' The Employer 's name is amended to conform to the record. 2 Local 10-100, international Woodworkers of America, C. I. 0., herein called the Inter- venor, was granted intervention. ' It is not clear whether the contract was executed on April 1 or August 14, 1947. 87 NLRB No. 110. 651 ,652 DECISIONS OF NATIONAL LABOR RELATIONS BOARD contract to April 1, 1949. About the beginning of 1949, the Intervenor notified the Employer of its desire again to modify the wage rates, and invited the Employer to participate in industry negotiations then being conducted. The Employer did not attend these negotia- tions, but agreed to abide by whatever terms were reached. There- after the employer was notified of the terms reached by negotiation and agreed to sign a new contract incorporating these terms. At the same time the Employer affirmed an oral understanding of the parties that their contract as modified and extended by the agree- ment of June 1, 1948, would remain in effect until the new contract was executed. Although the Intervenor presented a written con- tract dated June 21, 1949, to the Employer, it was not yet signed at the time of the hearing. The terms of this contract, however, were made immediately effective. The petition herein was filed on Sep- tember 15, 1949. Upon the basis of the foregoing facts, we find that the automatic renewal on April 1, 1949, of the 1947 contract, as modified and extended by the agreement of June 1, 1948, was forestalled by the Intervenor's notice of a desire to negotiate a new wage scale given early in 1949. In the absence of a new agreement between the parties on May 1, 1949, the contract would have expired by its terms on that date, except for the further agreement to continue the contract until the execution of a new agreement. As this extension agreement transformed the contract into one of indefinite duration, it cannot operate to bar this proceeding.4 As to the contract of June 21, 1949, although its terms have been put into effect, it also does not constitute a bar because it is unsigned.° 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. In accord with the stipulation of the parties, we find that all productions and maintenance employees of the Employer's Spokane, Washington, plant, excluding office and clerical employees, draftsmen, guards, professional employees, and 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. 4 Worthy Paper Company Association, 80 NLRB 19. As we have found that this contract is not a bar, it is unnecessary to rule on the Petitioner's contention that the contract and "stipulated agreement " of June 1, 1948, contain invalid union-security provisions. Solar Manufacturing Corporation, 80 NLRB 1358. OThe Intervenor would exclude Robert L. Kimsey, an hourly paid upholsterer and de- signer who is a son of the Employer . The Petitioner would include this employee. The Employer is neutral. Because of his relationship to management, we shall exclude him from the unit. Muskogee Dairy Products Co., 85 NLRB 520. KIMSEY MANUFACTURING COMPANY DIRECTION OF ELECTION 7 653 As part of the investigation to ascertain representatives for the purposes of collective bargaining with the Employer, 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 Regulations, 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 rein- stated 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 Spokane District Council, Lumber & Sawmill Workers, United Brotherhood of Carpenters and Joiners of America, A. F. L., or by Local 10-100, International Woodworkers. of America, C. I. 0., or by neither. 7 The parties hereto having filed waivers with the Board, we shall proceed to an election in this matter although proceedings under Section S (b) of the Act in Case No. 19-CC-12 involving the Employer and the Petitioner are still pending.