Falcon Manufacturing Co.

In the Matter Of FALCON MANUFACTURING COMPANY, EMPLOYER and UPHOLSTERERS' INTERNATIONAL UNION OF NORTH AMERICA, PETITIONER Case No. 7-R-2513.-Decided April V, 1947 Major James C. Barker, of Big Rapids, Mich., for the Employer. Messrs. Joseph Jacobs and Jacob Gross, of Chicago, Ill., and Mr. Mike Martin, of Grand Rapids, Mich., for the Petitioner. Mr. Daniel Zinn, of Grand Rapids, Mich., and Mr. Charles Kranish, of Big Rapids, Mich., for the C. 1. 0. Mr. Cuyler Coleman, of Battle Creek, Mich., for the Independent. Mr. Jerry TVohlmuth, of counsel to the Board. DECISION AND DIRECTION OF ELECTION Upon a petition duly filed, hearing in this case was held at Big Rapids, Michigan, on December 3, 1946, before Harry N. Casselman, 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 I. THE BUSINESS OF THE EMPLOYER Falcon Manufacturing Company is a Michigan corporation, en- gaged at Big Rapids, Michigan, in the manufacture of dining room furniture. During 1946 the Employer purchased raw materials val- ued at $150,000, approximately 80 percent of which was received from sources outside the State of Michigan. During the same period, the Employer manufactured finished products valued at over $300,000, of which approximately 80 percent was sold to points outside the State of Michigan. We find that the Employer is engaged in commerce within the meaning of the National Labor Relations Act. 73 N L. R B., No. 92. 467 0 468 DECISIONS OF NATIONAL LABOR RELATIONS BOARD II. THE ORGANIZATIONS INVOLVED The Petitioner is a labor organization affiliated with the American Federation of Labor, claiming to represent employees of the Employer. The United Furniture Workers of America, herein called U. F. W., is a labor organization affiliated with the Congress of Industrial Organizations, claiming to represent employees of the Employer. The Michigan Furniture Craftsmen, herein called Independent, is a labor organization affiliated with the Michigan Council for Inde- pendent Unions; claiming to represent employees of the Employer. III. THE QUESTION CONCERNING REPRESENTATION The Employer has refused to grant recognition to any union as the exclusive bargaining representative of its employees until certified by the Board. - On October 17, 1945, the Employer and the U. F. W. entered into a contract, terminating on October 17, 1946. The contract provided for automatic renewal from year to year thereafter unless either party gave notice of a desire to terminate 30 days prior to the yearly expira- tion date. No notice of termination or request for modification was made by either party before the automatic renewal date. However, on October 1, 1946, the U. F. W. submitted to the Employer an en- tirely new proposed contract. Thereafter, the U. F. W. and the Employer entered into contract negotiations. During the pendency of these negotiations, on October 23, 1946, the Petitioner requested recognition of the Employer as bargaining representative of its employees. On October 31,1946, the Petitioner filed its petition herein. Although taking no definite position, some question was raised by the U. F. W. as to its contract being a bar to the instant proceeding. While the Board has adhered to the principle that where an automatic renewal date is specified in a contract a rival claim to representation must be made prior to such date, in order to remove the contract as a bar to a representation proceeding,' such principle applies only where the automatic renewal clause remains operative. Where, as here, the Employer and the contracting union voluntarily enter into negotiations for an entirely new contract subsequent to the automatic renewal date, and thereby evince an intent to terminate, a rival claim- ant is relieved of the duty it otherwise might have had to present its representation claim prior to the automatic renewal date.2 Accord ingly, we find that the representation claim of the U. F. W. was timely made, and that the contract is no bar to the instant proceeding. ' Matter of Mill B, Inc, 40 N L. R B 346, and subsequent cases. 2 Matter of Atlas Felt Products Company, 68 N. L R B. 1; Matter of Miami Daily News, Inc, 66 N L R B 663 ; Matter of National Gypsum Company, 64 N L. R. B 59; Matter of Heat Transfer Products, Inc., 63 N. L R. B. 1124; Matter of Iroquois Gas Corporation, 61 N L. R B 302 0 FALCON MANUFACTURING COMPANY 469 We find that a question affecting commerce has arisen 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.8 IV. THE APPROPRIATE UNIT We find, substantially in accord with the stipulation of the parties, that all of the Employer's production and maintenance employees em- ployed at its Big Rapids, Michigan, plant, on an hourly rate and/or incentive rate, excluding executives, clerical employees, foremen, and all or any other supervisory employees with authority to hire, pro- mote, discharge, discipline, or otherwise effect changes in the status of employees, or effectively recommend such action, constitute a unit appropriate for the purposes of collective bargaining within the mean- ing of Section 9 (b) of the Act. DIRECTION OF ELECTION As part of the investigation to ascertain representatives for the purposes of collective bargaining with Falcon Manufacturing Com- pany, Big Rapids, Michigan, an election by secret ballot shall be conducted as early as possible, but not later than thirty (30) days from the date of this Direction, under the direction and supervision of the Regional Director for the Seventh Region, acting in this matter as. agent for the National Labor Relations Board, and subject to Sec- tions 203.55 and 203.56, of National Labor Relations Board Rules and Regulations-Series 4, among the employees in the unit found ap- propriate in Section IV, above, who were employed during the pay- roll period immediately preceding the date of this Direction,4 includ- ing employees who did not work during said pay-roll period because they were ill or on vacation or temporarily laid off, and including em- ployees in the armed forces of the United States who present them- selves in person at the polls, but excluding those employees \\ho have since quit or been discharged for cause and have not been rehired or reinstated prior to the date of the election, to determine whether or not they desire to be represented by Upholsterers' International Union of North America, A. F. L., or by United Furniture Workers of Amer- 8 The U F W. urges that Petitioner has made no adequate showing of representation, inasmuch as most of the latter 's designation cards have allegedly been revoked by a petition signed by 56 employees The U. F. W also contends that Petitioner 's designation cards were procured by fraud and misrepresentation. We have repeatedly pointed out that matters of prima facie showing of interest are administrative expedients only, and are not subject to collateral attack (Matter of 0 D. Jennings & Company, 68 N L. R B. 516). Inasmuch as Petitioner has submitted prima facie evidence of substantial membership, we believe that the issue of its actual representation can best be resolved by an election by secret ballot (Matter of Jefferson Island Salt Mining Co ., Inc., 67 N. L. R B. 1282; Matter of Continental Can Company , 58 N L R B . 1543). * Including H Kurewski who, as a regular part -time employee, the parties agreed should be eligible to vote. 470 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ica, C. I. 0., or by the Michigan Furniture Craftsmen, affiliated with the Michigan Council for Independent Unions, for the purposes of collective bargaining, or by none.' 5 On March 17, 1947, Petitioner requested withdrawal of its petition . On' March 21, 1947, the Board issued an order to show cause why such request should not be granted. Sufficient cause having been shown by the Intervenor in response to the order within the time prescribed therein , the request for withdrawal of the petition is hereby denied. 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. 1