Cushman's Sons, Inc.

In the Matter of CUSHMAN'S SONS, INC., EMPLOYER and RETAIL BAKERY & CONFECTIONERY EMPLOYEES UNION, LOCAL 1111, R. C. I. A., A. F. L., PETITIONER Case No. 2-RC-1460.-Decided January 16,1950 DECISION AND ORDER Upon a petition I duly filed, a hearing was held before Jack Davis, hearing officer. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed.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-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 National Labor Relations Act.3 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: i In its brief, Local 260, United Retail & wholesale Employees of America , C. I. 0., the Intervenor herein, urges that the petition be dismissed as fatally defective because the names of the then recognized and certified bargaining agent, as well as of the union claiming an interest in the employees involved, were omitted . However, the information lacking in the petition was readily obtained by the Board 's field examiner upon investigation and, indeed , formed the basis upon which the Intervenor was served with notice of hearing. Consequently , as the Intervenor was not prejudiced by these omissions its contention is found to be without merit. Burgess Battery Company, 76 NLRB 820. 2 The Intervenor excepts to the hearing officer's rejection of its offer of proof that the signatures on the cards submitted by the Petitioner in support of its showing of interest were forged. The question of an authentic showing of interest is an administrative matter for the Board to determine and is not litigable by the parties . Moreover , we are satisfied that the Petitioner 's showing of interest is, in all respects , proper. Accordingly , the hear- ing officer's ruling is affirmed. Tampa Transit Lines, Inc., 83 NLRB 1017 ; Henderson Lumber Company, Inc., 80 NLRB 1392. 3 Collins Baking Company, 83 NLRB 599. 88 NLRB No. 49. 121 122 DECISIONS OF NATIONAL LABOR RELATIONS BOARD In 1939 the Employer and the Intervenor entered into a collective bargaining agreement covering employees at the Employer's retail stores, effective until April 30, 1945. On October 23, 1944, the 1939 agreement, as modified from time to time, was extended to May 1, 1950.' On May 27, 1949, the Petitioner filed a petition for certifica- tion of bargaining representative which was dismissed by the Regional Director on July 8, for lack of sufficient showing of interest.5 On July 11, the Intervenor formally notified the Employer of its inten- tion to negotiate a new contract, "the A. F. L. having claimed that the contract which expires in 1950 is of too long duration." Thereafter, the Employer met with the Intervenor and on July 21, 1949, the parties executed the current contract, retroactive to May 1, 1949. This con- tract embodies the provisions of the previous agreement except that it contains no closed-shop provision; designates a new arbitrator; and limits the contract term to a 3-year period, expiring April 30, 1952. In addition, the preamble states that "the parties desire to cancel the existing contract between them in order to avoid any questions as to its validity under the National Labor Relations Act by reason of its term or duration and to substitute in place thereof the within agree- ment...." On August 1, 1949, the Petitioner wrote to the Employer claiming to represent its retail store employees and on the same day, filed the instant petition. The Petitioner contends that the current contract is a premature extension of the 1939 contract, as extended in 1944 to 1950, and further- more that the current contract for a 3-year term is of unreasonable duration. The Employer and the Intervenor argue that the current contract is a bar to a present election and that its 3-year term is cus- tomary in the industry. The Board's premature extension rule is clearly inapplicable herein. The purpose of the premature extension rule is to insure to employees the right to challenge an incumbent union's representative status at predictable and reasonable intervals.s Where we have applied the rule, the so-called premature extension agreement was executed at a time when the original contract was, under Board rules, a bar to an election. In that posture, we have inferred that the subsequent agree- ment was intended to preclude the employees from seeking a change of representatives at or about the time when the original contract was scheduled to expire, and we have, therefore, entertained a rival claim 4 On December 10, 1946, following a consent election held under Board auspices, the Intervenor was designated as bargaining representative of the employees of the Employer sought in this proceeding. Case No. 2-RC-1322. Celanese Corporation of America, 83 NLRB 103. CUSHMAN'S SONS, INC. 123 or petition if it preceded the expiration date 7 or the Mill B date of the original contracts as the case may be. Where, however, the original contract would not have been a bar to a rival petition because of un- reasonable or indefinite duration, it cannot be said that the subsequent agreement prematurely extended a definite termination date and thereby deprived the employees of the right to seek a change of bar- gaining representatives at predictable intervals. Thus, in the instant case, the original contract ,.9 which expired in 1950, was one of unreasonable duration and, under well-established Board principles, was not a bar to an election after a lapse of a reason- able time, i. e., 2 years. Indeed, for several years before July 21, 1949, when the new contract was executed, the employees could have effec- tively sought a change of bargaining representatives. In these cir- cumstances, we are unable to view the 1949 contract as seeking to fore- stall the right to seek a change of bargaining representatives or as a premature extension of an existing agreement.10 In addition, the agreement asserts, in effect, that it was entered into in order to comply with Board policy which prevents a contract of unreasonable duration from barring an election during a portion of its term. Accordingly, because the agreement is not a premature extension, we attach no sig- nificance for contract bar purposes to the fact that the Petitioner's rival claim and petition preceded the expiration date of the old con- tract. We are concerned instead with the timing of the claim and petition with respect to the execution date of the current contract. In this connection, it is apparent that the claim and petition followed the execution date and were therefore untimely made." As to the contention addressed to the reasonableness of the term of the July 21, 1949 contract, it is well established that, in the absence of a showing of custom in the industry, a contract for more than 2 years, is presumed to be unreasonable, and therefore a bar to a repre- sentation proceeding only during the initial 2-year'period of its exist- ence.12 In this connection, the evidence adduced by the Intervenor indicates that, in the New York City area, of the 4 agreements in the retail baking industry exclusive of the agreement in question, the 7 Gimble Brothers, Inc., 87 NLRB 449; Teletype Corporation, 79 NLRB 1044; Don Juan, Inc., et al., 71 NT,RB 734. 'International Harvester Co. (McCormick Works), 85 NLRB 1260 ; International Har- vester Company ( Indianapolis Works ), 82 NLRB 740 ; Indiana Desk Company, Inc., 82 NLRB 103; National Hardware Corporation, et al., 80 NLRB 368. We consider it unnecessary to pass upon the question of whether the 1944 contract was an extension of the 1939 agreement or a new agreement. 10 Cf. Magnolia Petroleum Company, 57 NLRB 1714 . The Broderick Company (Header- Press Division ), 85 NLRB 708. 11 The petition of May 27 , 1949, having been dismissed for lack of sufficient showing of interest, the requests or claims upon which it was based , were thereafter inoperative. Dolese 4 Shepard Company, et al., 57 NLRB 1598. 12 Puritan Ice Company, 74 NLRB 1311. 124 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Petitioner has 1 agreement with a retail chain of 3-year duration,13 1 agreement with another retail chain. of 1-year duration, and 2 agree- ments with employer associations representing small chain and inde- pendent stores, both of 1-year duration. The record indicates further that 1 of the employer association agreements covers about 300 stores in the area. In view of the foregoing, we are of the opinion that no showing has been made that 3-year contracts are customary in this industry. 14 Accordingly, we find that the current contract is of un- reasonable duration and constitutes a bar to an election for a 2-year period only. We shall, therefore, dismiss the petition, without pre- judice, however, to the filing of a new petition a reasonable time before April 30, 1951. ORDER Upon the entire record in the case, the National Labor Relations Board hereby orders that the petition herein be, and it hereby is, dismissed. CHAIRMAN HERZOG, dissenting : On all these facts and after all these years, I think that the Cush- man employees are now entitled to a chance to decide whether they desire to be represented by the Petitioner or by the Intervenor. 19 The Intervenor failed to adduce evidence relative to the number of stores covered by this agreement or the number of employees covered by any of the four agreements. 11 General Aniline & Film Corporation, 79 NLRB 79 . Cf. Omar, Incorporated, 69 NLRB 1126.