Northwestern Publishing Co.

In the Matter of NORTHWESTERN PUBLISHING COMPANY (WDAN), A CORPORATION, EMPLOYER and NATIONAL ASSOCIATION OF BROADCAST ENGINEERS AND TECHNICIANS (INDEPENDENT), PETITIONER Case No. 13-R-3632.-Decided September 30,1946 Mr. W. M. Acton, of Danville, Ill., for the Employer. Mr. Clarence A. Allen, of Arlington, Va., for the Petitioner. Mr. Frank L. Strand, of Champaign, Ill., and Mr. Freeman L. Hurd, of Washington, D. C., for the Intervenor. Mr. Melvin J. Welles, of counsel to the Board. DECISION AND ORDER Upon a petition duly filed, hearing in this case was held at Dan- ville, Illinois, on July 10, 1946, before Leon A. Rosell, hearing officer. At the hearing the Intervenor moved to dismiss the petition on the ground that its contract with the Employer is a bar to an election. The hearing officer referred this motion to the Board. For reasons stated in Section III, infra, this motion is hereby granted. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed. Upon the entire record in the case, the National Labor Relations Board makes the following : FINDINGS OF FACT I. THE BUSINESS OF THE EMPLOYER Northwestern Publishing Company (WDAN), an Illinois corpora- tion, publishes the Commercial News, a newspaper, and operates WDAN, a radio station, in Danville, Illinois. We are concerned solely with radio station WDAN in this proceeding. During the year 1945, WDAN was furnished approximately 65 percent of its broadcast time by the Columbia Broadcasting System, of which WDAN is an affiliate. During the same year, the ap- proximate income of WDAN was in excess of $60,000 of which ap- proximately $8,000 to $10,000 was derived from the network income 71 N. L. R. B., No. 20. 167 168 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of the Columbia Broadcasting System. Likewise during 1945 ap- proximately $1,000 of WDAN's income was derived from advertisers in the State of Indiana. In addition, WDAN broadcasts approxi- mately 25 miles into the State of Indiana, as well as in the State of Illinois. The Employer admits and we find that it is engaged in commerce within the meaning of the National Labor Relations Act. II. THE ORGANIZATIONS INVOLVED The Petitioner is an unaffiliated labor organization claiming to represent employees of the Employer. International Brotherhood of Electrical Workers, Local Union 1213, herein called the Intervenor, is a labor organization affiliated with the American Federation of Labor, claiming to represent employees of the Employer. III. THE ALLEGED QUESTION CONCERNING REPRESENTATION The Employer refuses to recognize the Petitioner as the exclusive bargaining representative of the engineering department employees of the Employer at Station WDAN until the Petitioner has been cer- tified by the Board in an appropriate unit. The Intervenor and the Employer executed their first collective bar- gaining agreement concerning the engineering department employees in 1944. On June 6, 1945, a new contract was executed, to be effective until June 6, 1946. This contract provided that it would continue in effect from year to year thereafter unless either party notified the other of its intent to change or terminate the contract at least 60 days prior to June 6 of any year. Sometime in April 1946, apparently before the 60-day period contained in the automatic renewal clause of the 1945 contract, the Employer informed the Intervenor that it desired certain changes in the 1945 agreement and the execution of a new contract. Thereafter, the Employer and the Intervenor made a new contract on May 11, 1946, effective as of that date, providing for a 1-year term and also containing a 60-day automatic renewal clause. On May 14, 1946, the Employer received a letter from the Petitioner, dated May 10, 1946, advising the Employer that the Petitioner represented a majority of the engineering department employees at Station WDAN. On May 13, 1946, the petition herein was filed. The Intervenor contends that the new contract, effective as of May 11, 1946, constitutes a bar to this proceeding. The Petitioner, on the other hand, asserts that notice to the Employer of its claim to representation was mailed before the new contract was executed, and that such notice, therefore, was timely with respect to the new contract, standing alone. NORTHWESTERN PUBLISHING COMPANY (WDAN ) 169 The Employer takes no position with respect to whether or not the new contract is a bar. We do not agree with the Petitioner's contention. Although notice of the Petitioner's claim was mailed before the execution of the new contract,Nit was, nevertheless, received by the Employer 3 days after the execution and the effective date of this agreement. We have indi- cated, and we find here, that the date of receipt by an employer of notice of a petitioner's claim to representation is controlling rather than the date such notice is mailed.,- We find, therefore', that the Petitioner's claim to representation, received by the Employer on May 14,1946, was not timely with respect to the contract executed and made effective by the Employer and the Intervenor on May 11, 1946, considered by itself. But since the new contract was made effective in advance of the ex- piration date of the agreement of June 6, 1945, it becomes necessary to consider whether or not the doctrine of "premature extension" is applicable, and the new contract consequently, not a bar. When there exists between a union and an employer a contract con- taining an automatic renewal clause, a rival union's claim to repre- sentation is timely only when made known to the employer before the operative date of the automatic renewal clause? This principle was enunciated in the Mill B case,3 and the operative date of an automatic renewal clause has come to be known as the "Mill B date." The Board, desiring to implement the Mill B rule, formulated the premature extension doctrine in the Wichita case 4 In that case, a new contract was executed and made effective before the Mill B date of an old contract. The rival union's claim to representation was received by the employer after the new contract was executed, but before the Mill B date of the old. Holding that the new contract was a premature extension of the old contract, and hence could not operate to prevent the employees from seeking a change of representatives, the Board said : Were we to hold that the parties to a collective bargaining agreement covering a period of several years could forestall a petition for investigation and certification of representatives by entering into a supplemental agreement modifying the contract I See Matter of United States Rubber Co., Detroit Plant, 62 N. L . R. B. 795 Cf., however, Matter of Ste. Genevieve Lime & Quarry Company, 70 N. L. R. B. 1259 , issued September 10, 1946, wherein we held that the filing of a petition with the Board , before the execution of a contract prevents the contract from operating as a bar, even if the employer does not receive actual notice of the petitioning union 's claim to representation until after the execution of the contract. 3 The rival union's claim, in order to be effective must be followed by the filing of a petition within 10 days, unless extenuating circumstances intervene, assuming the peti- tion itself was not filed before the operative date of the automatic renewal clause. Matter of General Electric X-Ray Corporation, 67 N. L. It. B. 997. 8 Matter of Mill B, Inc., 40 N. L. It. B. 346. 4 Matter of Wichita Union Stockyards Company, 40 N. L It. B 369. 170 DECISIONS OF NATIONAL LABOR RELATIONS BOARD in advance of the date fixed therein for reopening negotiations, the right of the employees to seek a change of representatives after the lapse of a reasonable time might be defeated. So to hold would require of employees desiring to change representatives, acceleration of organizational activities so that they would be ready to assert a claim of majority representation at any time the contracting parties might elect to discuss modification of the exist- ing agreement, thus leading to disaffection and unrest under the existing agreement instead of stabilized labor relations. To have held otherwise in the Wichita case would have meant fore- closing the rival union from presenting the timely notice of its claim to representation permitted in the Mill B case. Here there was no automatic renewal, but negotiation between the parties which terminated in an agreement executed between the Mill B date and the date when the old contract was due to expire, and be- fore the Employer learned of the Petitioner's claim. Here, unlike the Wichita case, notice of the Petitioner's claim to representation was received by the Employer after the Mill B date of the old contract be- tween the Employer and the Intervenor. The new contract, there- fore, could not itself have foreclosed the Petitioner, which had had reasonable opportunity to present timely notice of its claim to the Employer before that date. But here it failed to do so. Inasmuch as there was no such foreclosure, the rationale of the Wichita case does not apply .5 On these facts, were we to find the new contract between the Employer and the Intervenor not to be a bar, we would discourage timely negotiation for continuing ,stable relations.° The new con- tract in this case, made effective between the Mill B and expiration dates of the old agreement, was consummated within the usual period for contracting parties to negotiate and conclude new agreements governing their relations for a coming term. Where, as here, this period is reasonable in time, we fail to perceive how the new contract can be regarded as a "premature" extension of the old. For these reasons we find that the contract of May 11, 1946, be- tween the Employer and the Intervenor is a bar to a determination of representatives at this time. We shall, therefore, dismiss the petition. 5 Our decision in Matter of Memphis Furniture Co , 51 N L R B. 1447, in which the Petitioner's claim was regarded as not made before the Mill B date , is overruled to the extent that it is inconsistent with the opinion herein 9 This is not to say that we would consider the new contract to be a bar to an election if the Petitioner had notified the Employer of its claim to representation before the execu- tion of that contract, albeit after the Mill B date of the old agreement (and had also met the requirements laid down in 'Matter of General Electric X-Ray Corporation, supra). In such a situation we have repeatedly held that a current determination of representatives is not precluded. Matter of Atlas Felt Products Company, 68 N. L. R. B I; Matter of National Gypsum Company, 64 N L R B 59 ; Matter of Heat Transfer Products, Inc., 63 N I, R. B 1124 ; Matter of Iroquois Gas Corporation, 61 N. L. R. B. 302 . See however, Matter of Con P. Curran Printing Company, 67 N. L. R. B. 1419. NORTHWESTERN PUBLISHING COMPANY (WDAN) ORDER 171 The National Labor Relations Board hereby orders that the peti- tion for investigation and certification of representatives of employees of Northwestern Publishing Company (WDAN), a corporation, Dan- ville, Illinois, filed by National Association of Broadcast Engineers and Technicians (Independent), be, and it hereby is, dismissed.