W.S. Ponton, of N. J. Inc.

W. S. PONTON, OF N. J., INC. 581 W. S. PONTON, OF N. J. INO. and OFFICE EMPLOYEES INTERNATIONAL UNION LOCAL 32, AFL, PETITIONER. Case No. 2-RC-2606. July ^5, 1951 Amended Decision, Order, and Direction of Election On March 26, 1951,1 the Board issued a Decision and Order in which it dismissed the petition in the instant case on the ground that the Employer's obligation to bargain on a multiemployer basis ren- dered a single-plant unit inappropriate. On April 10, 1951, the Em- ployer filed a petition to reopen the proceedings on the ground of newly discovered evidence, namely, that in January 1951, the Associa- tion had executed a new contract which the Employer had not ratified or adopted, thereby relieving the Employer of any further obligations to bargain on a multiemployer basis. On April 12, 1951, Petitioner filed a motion to reconsider the Decision and Order and to reopen the hearing. On April 17, Direct Mail Local 14, District 65, DPOWA, Intervenor herein, filed an answer in opposition thereto and on April 25, a reply brief. On May 7, 1951, the Board ordered that the record be reopened for the limited purpose of permitting the introduction of evidence con- cerning the contract allegedly executed in January 1951 between the Association and the Intervenor and the effect of such contract upon the Board's original inclusion of the Employer's employees in the association-wide unit. Thereafter, a hearing was held on May 28 and June 12, 1951, before Eugene Matthew Purver, hearing officer of the Board. The Em- ployer, Petitioner, and Intervenor but not the Association appeared and participated. 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 Act, the Board has delegated its powers in connection with this case to a three-member panel [Chairman Herzog and Members Reynolds and Murdock]. Upon the basis of the entire record in this case, the Board makes the following : Amended Findings of Fact and Conclusions At the time the Employer resigned from the Association in June 1950, it was signatory to a contract between the Association and the Intervenor, executed in January 1950 and expiring in November 1951. The Board held in the previous decision that when the Employer; resigned from the Association, the contract was still in force and 1 93 NLRB 924. 95 NLRB No. 77. 582 DECISIONS OF NATIONAL LABOR RELATIONS BOARD effect as to this Employer and that the resignation had not taken place at an appropriate time. The Board therefore found that the single-plant unit sought by the Petitioner was inappropriate and dismissed the petition. On January 8, 1951, the Association and the Intervenor entered into a new contract embodying certain changes in wages, welfare plans, and other provisions and adopting an expiration date of November 1952. The 1951 contract provides that it shall be binding only on all present members of the Association v ho may adopt it and all other present members of the Association unless the latter give due notice to the Association of such refusal to adopt. It also provides that such employers if not adopting the 1951 agreement shall continue to be bound by the contract of January 1950.2 . The Petitioner contends that as the Employer was not a member of.the Association since June 1950, had not participated in the joint negotiations leadirig,to the 1951 con- tract, and had not- accepted or ratified that contract, it is no longer bound by the multiemployer unit. The Employer points out that the 1950 contract has been completely abandoned by the new. contract to which it is not a party and therefore there is.no'reason why the Employer cannot now alter its course from joint to individual action. The Intervenor urges that the 1951 contract is only an "amendment agreement" and an extension of the 1950 contract, which is still bind- ing on and is in force and effect as to the Employer. We find merit in the Petitioner's and Employer's position. The Board's prior decision in which it found that the Employer's with- drawal in June 1950 was made at an inappropriate tinne, was predicated on the finding that at the time of the withdrawal the Employer was participating in association-wide bargaining and that the contract of 1950 which the Employer had ratified had some 1.5 months to run. The situation at the present time is quite different. Since its with- drawal, the Employer has not engaged in group bargaining and has not ratified or adopted the 1951 contract. We do not agree with the Intervenor's contention that the 1951 contract is merely an amend- ment of the former contract. The 1951 contract is clearly a complete and new document in itself and by its own terms constitutes "the full 2 Art. II, Sec. 2: "The Contract herein shall be binding on all present members of the Association who may adopt it, and shall also bind any and all other present members of the Association unless within one week from, the date of the approval or authorization of this agreement at an Association membership meeting, the non-adopting member shall forward to.the Association in writing by registered mail notice, that such member does not wish to adopt this Contract. . . . In the event any such Employer does not adopt this Agreement, such Employer and the Union shall be bound by the Contract in existence between the Association and the Union dated January 13, 1950, unaffected by the Amend- ment herein , . . . ." Any member of the Association bound by this Contract shall con- tinue to be bound by the terms hereof whether or not such Employer continues to be a member of the Association , subject to the provisions of Article XXIX:" CLIPPARD INSTRUMENT LABORATORY, INC. 583 and exclusive agreement between the parties." 3 Moreover, even if the 1951 contract be considered an amendment to the 1950 contract, this Employer would not be bound, since the 1951 agreement specifi- cally provides that only present members who do not adopt the 1951 contract shall continue to be bound by the preceding one. As it is clear the Employer was not a member of the Association when the 1951 agreement was executed, the Employer is not bound by the 1950 contract' We find, therefore, that inasmuch as the Employer has indicated a desire to pursue an independent course with respect to its labor relations, it is no longer obligated to bargain upon a multi- employer basis.-5 Accordingly, upon the basis of the above amended findings of fact and the entire record in this case, we reach the following conclusions : 1. We find that a question affecting commerce exists concerning the representation of the employees of the Employer, within the mean- ing of Section 9 (c) and Section 2 (6) and (7) of the Act. 2. We find that all production employees at the Employer's Engle- wood, New Jersey, plant, excluding office employees, salesmen, execu- tives, lithographic production employees, teamsters, guards, and all supervisors as defined in the Act constitute a unit appropriate for purposes of collective bargaining within the meaning of Section 9 (b) ,of the Act. Order IT IS HEREBY ORDERED that the Order dismissing the petition in this case be, and it hereby is, vacated. [Text of Direction of. Election omitted from publication in this volume.] 8 The preamble of the 1951 contract provides "that the present contract between the parties is hereby amended in all respects , the following to constitute the full and exclusive :agreement between the parties." 4 Assuming that the Employer is so bound, since less than 60 days remain before the Mill B date of the 1950 agreement , it would still be an appropriate time for the Employer to withdraw from the multiemployer bargaining unit. Economy Shade Company, 91 NLRB 1552; Engineering Metal Products Corporation , 92 NLRB 823. 5 Coca Cola Bottling Works Company, 93 NLRB 1414; The Milk and Ice Cream Dealers of the Greater Cincinnati, Ohio Area at al., 94 NLRB 23; Leland J. Paschich et al. d/b/a Economy Shade Company, supra; Pacific Metals Company, Ltd., 91 NLRB 696. 'CLIPPARD INSTRUMENT LABORATORY, INC. and LOCAL LODGE 789, DIS- TRICT 34, INTERNATIONAL ASSOCIATION OF MACHINISTS , PETITIONER. Case No. 9-CA-366. July 06, 1951 Decision and Order On May 11, 1951, Trial Examiner Albert P. Wheatley issued his Intermediate Report in the above-entitled proceeding, finding that 95 NLRB No. 63.