Greenville Finishing Co, Inc.

In the Matter Of GREENVILLE FINISHING COMPANY, INC., EMPLOYER and UNITED TEXTILE WORKERS OF AMERICA, A. F. L., PETITIONER Case No. 1-R-31M.Decided October 09, 1946 Mr. William C. Waring, of Providence, R. I., for the Employer. Mr. Charles Suisman, of New London, Conn., for the Petitioner. Mr. Charles S. Joelson, of Paterson, N. J., 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 Provi- dence, Rhode Island, on August 19, 1946, before Robert E. Greene, hearing officer. 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 1. THE BUSINESS OF THE EMPLOYER Greenville Finishing Company, Inc., is a Rhode Island corporation, with its plant and principal office in Greenville, Rhode Island. It is engaged in dyeing, finishing, bleaching, and printing of cotton rayon fabrics. Its principal raw materials are cotton and rayon, which it receives from its customers as commission agents. Annual com- missions received from its customers are in excess of $100,000. All of the fabrics finished by the Employer are shipped by it to points outside the State of Rhode Island. The Employer does not deny, 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 a labor organization affiliated with the American Federation of Labor, claiming to represent employees of the Employer. Federation of Dyers, Finishers, Printers and Bleachers of America, herein called the Intervenor, is a labor organization affiliated with the 71 N. L. R. B, No. 68. 436 GREENVILLE FINISHING COMPANY, INC. 437 Congress of Industrial Organizations, claiming to represent employ- ees of the Employer. III. THE ALLEGED QUESTION CONCERNING REPRESENTATION The Employer and the Intervenor executed their first collective bargaining agreement in 1940. On October 1, 1943, a new contract was executed by them which provided that it should remain in effect until August 1, 1946,1 and from year to year thereafter unless either party notified the other at least 60 days before August 1 of any year com- mencing with 1946 of a desire to "modify or terminate." In about October 1945, a work stoppage occurred at the Employer's plant. Thereafter, on November 1, 1945, the Employer notified the Intervenor by letter that it considered the stoppage a breach of contract and, therefore, the 1943 contract was abrogated. Shortly after December 1, 1945, however, the Employer condoned the alleged breach of contract, withdrawing its abrogating action, and sometime in December negotiations between the Employer and the Intervenor commenced which culminated in a supplemental agreement, dated January 16, 1946. This agreement substantially changed the 1943 contract with respect to conditions of employment, wages, and various benefits for all employees, and extended the expiration date of that contract to August 1, 1947.1 Meanwhile, on January 6, 1946, the Petitioner notified the Em- ployer of its claim to representation, and on January 8, 1946, the Employer informed the Petitioner that an existing contract with the Intervenor, which would not expire until August 1, 1946, barred recognition of the Petitioner's claim. On or about January 10, 1946, an officer of the Petitioner consulted with an attorney on the Board's Regional staff, and apparently informed him of the Employer's re- sponse to the Petitioner's claim. The Petitioner's officer was accord- ingly advised that a petition at that time would be premature, and the Petitioner did not then file a petition. After the execution of the 1946 agreement, the Intervenor and the Employer drew up a new contract, which has not yet been exe- cuted. The evidence indicates, however, that this contract is intended merely to formalize, in a single instrument, the 1946 agreement and those provisions of the 1943 contract not changed by the 1946 agree- I Contracts for 3-year terms are a custom in the industry . See for example, Matter of The United States Finishing Company, 63 N. L R. B 575 2 The 1946 agreement contains the following language : The termination clause in the agreement shall be amended to provide that no notice of intention to terminate may be sent by either party to the other to effect a termina- tion prior to August 1, 1947. It thus appears that the 60-day automatic renewal clause of the 1943 contract is continued In force, but that the initial termination date is now August 1, 1947, instead of August 1, 1946. 438 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ment, and that there were no negotiations for new substantive terns relative to this as yet unexecuted contract. On June 14, 1946, the petition in this case was filed. At the time of the hearing, on August 19, 1946, negotiations between the Employer and the Intervenor were proceeding with respect to wages. But the 1946 agreement provides : It is agreed that there shall be no right on the part of either party to reopen the question of wages until October 1, 1946. Thirty days prior to October 1, 1946, either party may give written notice of a request for a general wage increase or de- crease, and upon the giving of such notice, the parties shall promptly negotiate such -request; provided, however, that the union agrees that it will not make such a request, unless the Textile Workers Union of America shall have reopened the question of wages on or before August 1, 1946, in the cotton and rayon textile industry in New England. 'If, after a period of thirty days for negotiations, the parties are unable to agree, the matter shall be submitted to arbitration. It is understood and agreed that such wage reopening shall be confined to the question of a general wage increase or decrease, and there shall be no right on the part of either party to raise or reopen any so-called fringe issues not involving a general increase or decrease of hourly piece-work rates... . The Intervenor and the Employer claim that the 1946 agreement is a bar to the present proceeding. It is necessary to consider first whether or not the negotiations rela- tive to wages which were proceeding at the time of the hearing con- stitute an "opening up" of the 1946 agreement during the pendency of the petition, sufficient to prevent that agreement from operating as a bar. In Matter of Olin Industries, Inc.,8 an agreement was opened by the contracting parties while a petition was pending. The open- ing there consisted of discussing and negotiating a general wage increase and reconsidering a ' reduction in the work week. We held that the agreement did not constitute a bar to the proceeding, because of the opening, finding that the wage and work-week negotiations were not contemplated by the agreement. We reiterated the principle of the Olin Industries case in Matter of U. S. Va'radium Corp .4 There, 2-weeks after a contract had been automatically renewed pursuant to its terms, negotiations were entered into by the contracting parties concerning the modification of wage rates. The rival union filed its petition 2 days later. We found that the negotiations were not pro- vided for in the contract, and the contract was, therefore, "opened up." 8 67 N. L. R. B. 1043. A 68 N. L. R. B. 389. GREENVILLE FINISHING COMPANY, INC. 439 We held, therefore, that the renewed contract was inoperative as a bar. However, we indicated in the Vanadium case that negotiations for modifications which are provided for in a contract do not "open up" the contract, saying : The Board has held that where a contract provides for modifica- tions during its term, the negotiation or effectuation of such modification by the parties, without attempting to renew or extend the terms of the contract, does not operate to open the contract so as to permit the representation claim of a rival union to raise a question concerning representation. We, are of the opinion that the negotiations in the instant case were substantially within the scope of the provision in the 1946 agree- ment permitting wage negotiations. Accordingly, we find that the rule enunciated in the Olin Industries case does not apply here, and we do not consider the 1946 agreement to have been "opened up" so as to prevent that agreement from constituting a bar. The Petitioner first notified the Employer of its claim to repre- sentation in January, before the execution of the 1946 agreement. Nevertheless, the Intervenor and the Employer contend that delay in filing the petition until June prevented such notice from being operative, under the doctrine of the General Electric X-Ray case.5 The Petitioner asserts, on the other hand, that sufficient extenuating circumstances exist to excuse this delay. But we are not persuaded that the circumstances of this case justified the Petitioner's waiting to file its petition until more than 5 months after its initial claim to representation. We find, therefore, that the notice of January 6, 1946, was inoperative and cannot itself prevent the 1946 agreement from barring an elections As the Petitioner's original claim to representation is found to have been inoperative, the filing of the petition on June 14, 1946, must be considered as the only effective notice to the Employer of the Peti- tioner's claim.7 And since that petition was filed after the execution of the 1946, agreement, it was untimely unless, as contended by the Petitioner, this agreement, by "prematurely" extending the 1943 con- tract, cannot serve as a bars ° Matter of General Electric X-Ray Corporation, 67 N. L. R. B. 997. ° There is no merit in the Petitioner's contention that the 1946 agreement is not a contract at all because of the as yet unexecuted contract mentioned above. It is clear that this latter contract is intended merely to formalize, in one instrument, the 1946 agreement and those provisions of the 1943 contract which continue unchanged. 'Cf. Matter of Ste. Genevieve Lime & Quarry Company, 70 N. L. R. B. 1259; Matter of Fifth Ave. Shoe Corporation, 69 N. L. R. B. 400. ° The Intervenor and the Employer contend that the 1946 agreement cannot be deemed a premature extension of the 1943 contract , because the latter has been abrogated and hence no contract existed at the time the 1946 agreement was executed . However, when the Employer answered the Petitioner's first claim to representation , it indicated that the 1943 contract was still in effect. Furthermore , the 1946 agreement indicates on its face that it is revising the "existing agreement." Considering all the evidence, it is clear that the 1943 contract was still effective when the 1946 agreement was executed. 440 DECISIONS OF NATIONAL LABOR RELATIONS BOARD In the Northwestern Publishing Company case,° recently decided by the Board, it was determined to limit the premature extension doctrine to those cases where notice of the petitioning union's claim to representation was made known to the employer before the opera- tive date of an automatic renewal clause, or "Mill B date," 10 of an old contract. In that case, notice of the petitioning union's claim was received by the employer after the Mill B date of an old contract be- tween the employer and the intervenor, and after the making of a new contract which superseded the old. Because of these two facts, Ave found that the new contract constituted a bar, holding: . .. notice of the petitioners' claim to representation was received by the Employer after the Mill B date of the old con- tract between the Employer and the Intervenor. The new con- tract, therefore, 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 . . . [Petitioner] failed to do so. Had the Petitioner here filed its petition a reasonable time before Julie 1, 1946, we would direct an election on this record. Nothing in the events of January prevented or discouraged its taking such action. Here the only operative notice of its claim to representation is the petition which was filed after the Mill B date of the old con- tract, as in the Northwestern case. True, this employer knew that the Petitioner had made a conflicting claim to representation before the Employer executed the 1946 supplemental agreement with the Intervenor on January 16. Regardless of such knowledge, however, the Petitioner's opportunity to present timely notice of its repre- sentation claim was not foreclosed. Having waited until after June 1, 1946, the Mill B date of the 1943 contract, the Petitioner may not rely upon an asserted implication of lack of good faith in the execu- tion of the January 16, 1946, agreement" The principle established in the Northwestern decision prevails. We find, accordingly, that the 1946 agreement is a bar to a current determination of representatives. We shall, therefore, dismiss the petition, without prejudice, however, to the filing of a new petition a reasonable time before June 1, 1947, the next Mill B date of the 1946 agreement. 03-tatter of Northwestern Publishing Company (WVDAN), a corporation, 71 N L R B. 167 10 The operative date of an automatic renewal clause has come to be known as the "Mill B date" of a contract Matter of Mill B, Inc, 40 N L R B 346. 11 Our decision in Matter of Erie Concrete if Steel Supply Co , 55 N. L R. B 1124, is overruled only to the limited extent that it is inconsistent with the opinion herein. GREENVILLE FINISHING COMPANY, INC. ORDER 441 The National Labor Relations Board hereby orders that the peti- tion for investigation and certification of representatives of em- ployees of Greenville Finishing Company, Inc., Greenville, Rhode Island, filed by United Textile Workers of America, A. F. L., be, and it hereby is, dismissed without prejudice.