Mississippi Lime Co. of Missouri

In the Matter of Mississippi LIME COMPANY OF MISSOURI,l EMPLOYER and UNITED GAS, COKE AND CHEMICAL WORKERS OF AMERICA, CIO, PETITIONER Case No. 144-R-1.49.-Decided October 30, 1946 Verlie, Eastman ct Schla fly, by Mr. J. L. Schla fly, of Alton, Ill., for the Employer. Mr. Joseph Appelbaum, of St. Louis, Mo., and Mr. Ira 1'Villiam,, of Ste. Genevieve, Mo., for the Petitioner. Messrs. Harry H. Craig and John T. Wiley, Jr., of St. Louis, Mo., for the Intervenor. Mr. Emil C. Farkas, of counsel to the Board. DECISION AND 'ORDER Upon a petition duly filed, hearing in this case was held at St. Louis, Missouri, on July 16, 1946, before Keith W. Blinn, hearing officer. The hearing officer reserved ruling for the Board on motions made by the Employer and the Intervenor to dismiss the petition on the ground that their contract of May 6, 1946, is a bar to an election. For the reasons stated in Section III, infra, the motions are hereby granted. The hearing officer's rulings made at the hearing are free from prejudical error and are hereby affirmed, except as indicated below. Upon the entire record in the case, the National Labor Relations Board makes the following : FINDINGS OF FACT 1. THE BUSINESS OF THE EMPLOYER Mississippi Lime Company of Missouri, a Missouri corporation, operates a lime quarry and plant in Ste. Genevieve County, Missouri: During the past year the Employer purchased raw materials and supplies valued in excess of $100,000, of which more than 50 percent was purchased from points outside the State of Missouri. During the same period, the Employer sold products valued in excess of I The name of the Employer appears as amended at the heal ing 71 N. L. R. B, No. 71. 472 MISSISSIPPI LIME COMPANY OF MISSOURI 473 $100,000, of which more than 50 percent was sold and shipped to points outside the State of Missouri. 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,a labor organization affiliated with the Congress of Industrial Organizations, claiming to represent employees of the Employer. International Hod Carriers' Building and Common Laborers' Union of America, Local No. 829, herein called the Intervenor, is a labor organization affiliated with the American Federation of Labor, claim- ing to represent employees of the Employer. III. THE ALLEGED QUESTION CONCERNING REPRESENTATION On May 9, 1945, the Employer executed a collective bargaining contract with the Intervenor, providing for a 1-year term commencing June 1, 1945, and for automatic renewal for annual periods there- after, in the absence of notice to change given by either party to the other at least 30 days prior to June 1 of any year. On February 18, 1946, the Employer and the Intervenor began negotiations for a new contract, and after several conferences a tenta- tive agreement was reached on May 1, 1946. Arrangements were made by the parties to reduce this agreement to writing on May 6, 1946, and on that date the parties met again and signed the contract. Paragraph 2 of the contract states : It is understood and agreed that this agreement replaces and supersedes the collective bargaining agreement between the parties entered into on May 9, 1945. However, Article 8 provides : This agreement shall continue in full force and effect from June 1, 1946, through May 31, 1947, and shall thereafter continue auto- matically from year to year unless reopened in accordance with the provisions of this Article. Some ambiguity therefore exists in the terms of the 1946 contract, in that it is not clear whether the Employer and the Intervenor in- tended to make it effective immediately upon its execution or upon the expiration of the 1945 agreement on June 1, 1946. On April 10, 1946, the Petitioner, by letter, advised the Employer of its organizational campaign among the Employer's workers, assert- ing that they had the right to change bargaining agents upon the termination of the Employer's 1945 contract with the Intervenor. 474 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Thereafter, on May 6, 1946, the Petitioner notified the Employer, by letter, that it represented a majority of the employees and requested recognition as their exclusive bargaining agent. On the same day the Petitioner filed its petition in this proceeding at the Board's Regional Office; it is not clear, however , at what time of the day this was done. The Petitioner's letter of May 6, 1946, was not received by the Employer until May 7, 1946, after the execution of the 1946 contract, nor was the Employer advised that the petition had been filed until much later. The Employer and the Intervenor contend that the 1946 contract operates as a bar to a present determination of representatives. The Petitioner , on the other hand, argues that its petition was filed before the execution of the contract on May 6, 1946 , and was therefore timely. No petition was filed in our Regional Office within 10 days of the notice of April 10, 1946. Consequently, even if , regarded as a valid claim to representation , this notice could not itself have served to pre- vent the 1946 contract from barring a current determination of repre- sentatives.2 Ordinarily an agreement is precluded from operating as a bar if a petition is filed before its execution .3 In this case, the petition was docketed on May 6, the very day on which the 1946 contract was signed. The Petitioner asserted, however, that the contract was not executed until several hours after the filing of the petition, and offered some evidence to support its contention' Even assuming, arguendo , the correctness of the assertion , this does not detract from the contract's effectiveness as a bar. The Board cannot pay heed to the fractions of a day in matters of this sort. Where , as here, no formal proceeding is initiated by filing a petition on or before the day preceding the making of a collective bargaining agreement , the agree- ment stands as a bar to an election, at least in the absence of the Employer's actual knowledge, at an earlier hour on the day the agreement is executed, that a petition has just been filed with the Board. We assume, for purposes of this decision, that the new 1946 con- tract did not become wholly effective until June 1, 1946 , although it was executed on May 6, 1946.5 It thus appears that the Employer and Intervenor made their new agreement between the operative date of the automatic renewal clause, or Mill B date, ° of the 1945 contract z Matter of.Genci at Electric X-Ray Corporation, 67 N. L R B. 997. Matter of Ste Genevieve Lime & Quarry Company, 70' N. L. R. B. 1259. 4 The hearing officer's ruling striking that testimony is reversed. 6 The testimony indicates that parts of the 1946 contract may have been put into opera- tion immediately upon its execution , although many others did not go into effect until June 1, 1946. We do not accept the view of our dissenting colleague that the old contract was "abandoned ," or "non-effective." e 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. It. B. 346. MISSISSIPPI LIME COMPANY OF MISSOURI 475 (May 1, 1946) and that contract's anniversary date, and that the new agreement became effective on the anniversary date. There are many Board precedents holding that the effective and not the execution date of an agreement controls contract bar questions.7 In many in- stances that is a salutary rule. We are persuaded, however, that these precedents should no longer be followed in situations of this particular character. In the recent Northwestern Publishing Company decision,' we refused to apply the "premature renewal" doctrine ° to a contract made between the Mill B and anniversary dates of a superseded agree- ment. We said, in part : . . . were we to find the new contract between the Employer and the Intervenor not to be a bar, we would discourage timely nego- tiation for continuing stable relations. The new contract 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 gov- erning their relations for a coming term. Where, as here, this period is reasonable in time, we fail to perceive how the new con- tract can be regarded as a premature extension of the old. Mere also it. was natural for the Employer and the Intervenor to negotiate and conclude a new agreement in the period between the Mill B and anniversary dates of the 1945 contract, and to execute it 25 clays before that earlier agreement was due to expire, rather than wait until the 365th day. The period between the Mill B and anniver- sary dates was itself reasonably short in time, a mere 30 days 1e Since they were bound to an agreement which was soon to expire, it was not extraordinary for the parties to provide that the primary terms of their new contract were to become effective only after the existing agreement had run its course. The fact that the contracting parties made the primary terms of their new agreement effective at the expi- ration of the old, rather than immediately, should not, in our opinion, slake their agreement vulnerable to a supervening petition, where that petition was filed, not only after the contract was executed, but after the Mill B date of the original contract. As in the Northwestern case, the action of the contracting parties left unimpaired the right of the employees to petition the Board to investigate and certify a new representative at any time before the Mill B date of the old agree- ment. Indeed, the conduct of the contracting parties operated to ex- 7 Matter of Foster-Grant, Inc., 54 N. L. R. B 802 ; Matter of Kimberly-Clark Corporation, 55 N L R B. 521 ; Matter of S & S Cone Corporation, 57 N. L. R. B 260; Matter of Na- tional Carbide Corporation, 67 N L. R. B 757. These decisions are reversed only insofar av they are inconsistent with our opinion herein. 871N L R B 167. 9 Matter of Wichita Union Stockyards Company, 40 N. L R. B 369 "We do not here decide what principle should govern if the "Mill B period " were an unreasonably long one. 476 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tend their opportunity for several additional days-until the actual execution of the new agreement. To direct an election in the circum- stances of this case would prejudice the continuance of stable bargain- ing relations, by discouraging contracting parties from feeling secure in executing a new collective agreement until the very instant when an old contract is due to expire. The dissenting opinion lays repeated stress upon an assumption that our decision ignores what are termed "the possibilities of fraud," and may tempt employers and labor organizations to antedate their contracts. Sufficient unto day is the evil thereof. The Board is always available to receive testimony that a contract has been improperly antedated. Absent testimony to that effect, the Board majority is unwilling either to assume that American employers or labor organi- zations would readily engage in such a practice, or to hesitate to adopt an otherwise salutary policy because of the fear that a few might occasionally do so. For these reasons, we find that the 1946 contract constitutes a bar to a present determination of representatives. We shall, therefore, dismiss the petition. ORDER The National Labor Relations Board hereby orders that the peti- tion for investigation and certification of representatives of employees of Mississippi Lime Company of Missouri, Ste. Genevieve County, Missouri, filed by United Gas, Coke and Chemical Workers of Amer- ica, CIO, be, and it hereby is, dismissed. MR. JOHN M. HOUSTON, dissenting : Hitherto the Board invariably has directed an election upon a peti- tion which, as in the present case, was filed between the execution of a contract and its effective date. Our adoption of this decisional rule and our continuous adherence to it were premised, in part, upon the idea that parties to contracts ought not to be afforded an apportunity to manipulate 11 the date upon which their relationship commenced or renewed so as to effect a foreclosure of the right of employees to select new reprsentatives, if they so desired, at reasonable periods. Not only was it contemplated that the rule would place an effective brake upon the possibilities of fraud, but it was also considered that, in the inter- ests of stable industrial practice, it was desirable to encourage defini- tiveness with respect to establishment of substantive contractual terms which were to govern the relationship of an employer with his em- ployees. Lapses in time between the date upon which a contract was executed and the date upon which its substantive terms became effec- tive were thought to lessen the chances for the achievement of certainty 11 By antedating a contract made after a rival claim or petition was filed MISSISSIPPI LIME COMPANY OF MISSOURI 477 which written contracts have as their basic appeal in the field of labor relations. The Board was additionally motivated by a realization that a contrary rule would operate to impose an undue burden upon a rival labor organization to keep in constant awareness of the state of negotiations between contracting parties, ready at all times to file its petition whenever execution of a new agreement seemed imminent at the risk of being foreclosed for a further contractual period of time 12 The decision in this case discards this salutary rule. The factual circumstances which have persuaded my colleagues to abandon it ap- pear much less compelling to me and I therefore am unable to agree with them. Applying the principles agreed upon by the Board in the recent Northwestern Publishing Company case, my colleagues apparently have concluded that, because the petition here was filed after the auto- matic renewal date of the Intervenor's old contract, the petitioning union has lost nothing, and should not now be heard to complain ir- respective of what action the employer and the intervenor may have undertaken with respect to their contractual relationship. I agree that a petition which is filed after to automatic renewal period has begun to run generally raises no question concerning representation. However, even though recent cases may be interpreted as consecrating the automatic renewal period to the exclusive and uninhibited use of contracting parties without fear of intrusion by rival labor organiza- tions, we have in no -case, of which I am aware, stated that under no circumstances would a rival petition be entertained if filed after the so-called Mill B date. Indeed, we took care to express the contrary in the Northwestern Publishing case itself by pointing out that if the petition there, albeit, filed after the Mill B date had preceded the ex- ecution of the contract we would have directed an election 13 I think it is therefore clear that the mere filing of a petition after the Mill B date ipso facto does not preclude consideration of the petitioner's claim to representation, but that the timeliness of suoh a petition depends upon the status of the contractual relationship which is urged as a bar to the petition. Since the petition here was filed before the contract was effective, it follows that the present case resolves itself factually into the type of situation in which the decisional rule to which I have adverted is applicable, unless some importunate consideration of policy now dictates the creation of an exception. From the insistence of the majority opinion that the principles es- tablished in the Northwestern Publishing case must govern here, it would appear that my colleagues consider their decision as a step in ' See Matter of American White Cross Laboratories, Inc, 60 N. L. R B. 1148, at p. 1150, and cases cited in footnote 5 therein 13 There the execution date and the effective date of the contract were one and the same-the normal situation. 478 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the direction of industrial stability. I note, however, that between the execution of the contract and the date upon which it became opera- tive, there was a period of time in which no certainty existed as to the terms and conditions of employment governing the relationship of this employer and his employees. This unsettled hiatus resulted from the abandonment of the old contract, and the non-effectiveness of the new one. It is precisely this period which ordinarily we have set aside as an opportune moment for employees to change bargaining representa- tives, if they so desire. To deny them the right to make a selection of representatives during this period hardly strikes me as conducive to industrial stability. To do so solely because the contracting parties raise as a bar an ineffective contract appears to be a negation of the very policy which my colleagues consider of paramount importance in this case. And, despite the vague limitation upon the immunity of con- tracting parties fixed by the majority, the danger to the concept that employees be free, at reasonable periods, to change representatives, is still inherent in the decision since automatic renewal clauses may now well be written to provide for unreasonably long periods of time, thereby creating opportunities for techniques of foreclosure which are repugnant to basic objectives of the Act. Nor is there any valid explanation, from another aspect of policy, for the rejection of our rule that the effective date of a contract con- trols in issues of this type. I assume that my colleagues would con- cede that the possibilities of fraud are as extant now as they were when the cases establishing our rule were decided. Yet the whole effect of the majority decision in the present case is to pronounce those possi- bilities negligible and entitled to no consideration. I am not con- vinced that the present decision discloses any valid reason for a de- parture from customary practice, and I must dissent from the dis- missal of this petition.