Gay Games, Inc.

In the Matter of GAY GAMES, INC., EMPLOYER and UNrrED PAPER- WORKERS OF AMERICA, CIO, PETITIONER Case No. 35-RC-296.Decided January 00, 1950 9 DECISION AND DIRECTION OF ELECTION Upon a petition duly filed, a hearing was held before William Naimark, 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 [Members Houston, Reynolds, 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. 2. The labor organizations involved claim to represent certain em- ployees of the Employers 3. A 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. The Employer and the Intervenor contend that a collective bar- gaining contract, executed by them on August 31, 1948, for 1 year, and automatically renewed by failure to give the required 60-day notice, constitutes a bar to this proceeding. The contract also contains a wage reopening clause which permitted such reopening once during the contract year, upon 30-day written notice. Neither party gave notice to the other of its desire to terminate or modify the contract before July 1, 1949, its Mill B date. On July 10, 1949, the Intervenor notified the Employer, in writing, of its desire to open "the contract and wage scale which expires August 31, 1949." On September 7, 1949, the contracting parties met and the Intervenor read its proposed 1 Muncie Novelty Printing Pressmen & Assistants' Union No. 458, affiliated with Interna- tional Printing Pressmen & Assistants' Union of North America, herein called the Inter- venor, appeared at the hearing and was permitted to intervene on the basis of its contractual interest. 88 NLRB No. 66. 250 GAY GAMES, INC. 251 contract changes. These covered not only wages, but such subjects as seniority, bonus plan, interdepartmental transfers, paid vacations, and the right of the Intervenor to conduct union business at any time. On September 14, 1949, the Employer replied in writing, submitting its counterproposals. On September 29, 1949, the Petitioner notified the Employer of its representation claim. Thereafter there were no fur- ther negotiations between the Employer and the Intervenor. The instant petition was filed October 3, 1949. The Employer and the Intervenor contend that the Intervenor's notice of July 10 was ineffective to prevent the automatic renewal of the contract, since it was not given 60 days prior to the expiration date, and that the contract was therefore automatically renewed on August 31, 1949, for an additional 1-year period. We agree. How- ever, this determination does not dispose of the contract bar issue. We have held that, where parties to a contract negotiate in accord- ance with a wage reopening provision contained therein, the contract is not reopened so as to make it vulnerable to the claim of a rival organization? Conversely, however, where the parties during the term of the contract attempt to effect modifications which are not pro- vided for therein, or are beyond the scope of the modification clause contained in the contract, the Board will deem the contract to be opened, thus making timely a rival representation claim otherwise prematurely presented in advance of the normal expiration date of the contract.3 We are of the opinion that the negotiations conducted by the Employer and the Intervenor during September 1949 went far beyond the changes permitted by the contract's reopening clause. Accordingly, we find that the contract of August 31, 1948, as auto- matically renewed on August 31, 1949, does not constitute a bar to a present determination of representatives. 4. We find, in accordance with the agreement of the parties, that all production and maintenance employees of the Employer, employed at its Muncie, Indiana, plant, excluding office and clerical employees, executives, and supervisors as defined in the Act,4 constitute a unit 2 Greenville Finishing Company, Inc., 71 NLRB 436 ; S & W Fine Foods, Inc., 74 NLRB 1316; and The Raequette River Paper Company, 85 NLRB 835. 3 Olin Industries, Inc. (Western Cartridge Company Division, East Alton, Illinois) 67 NLRB 1043 ; and United States Vanadium Corporation, Pine Creek Unit , 68 NLRB 389. 4 The Employer employs approximately 10 so -called "supervisors" whom all parties desire to include in the unit . These employees are covered by the contract between the Employer and the Intervenor. They have no authority to hire, discharge, transfer, or discipline other employees , or effectively to recommend such action. They spend approximately half their time instructing other employees how the work is to be done and the remainder working along with other employees. They also keep records of production . They are hourly paid and earn approximately 5 to 10 cents per hour more than other employees. In all other respects their hours and working conditions are identical with those of other employees. We find that these employees are not supervisors within the meaning of the Act, and we shall accordingly include them in the unit. 252 DECISIONS OF NATIONAL LABOR RELATIONS BOARD appropriate for the purposes of collective bargaining within the mean- ing of Section 9 (b) of the Act. DIRECTION OF ELECTION 5 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 super- vision 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 payroll period immediately preceding the date of this Direction of Election, including employees who did not work during said payroll period because they were ill on 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 United Paperworkers of America, CIO, or by Muncie Novelty Printing Pressmen & Assistants' Union No. 458, affiliated with Inter- national Printing Pressmen & Assistants' Union of North America, or by neither. "Any participant in the election herein may, upon its prompt request to , and approval thereof by, the Regional Director, have its name removed from the ballot.