Robertson Brothers Department Store, Inc.

258 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2. All production and maintenance employees of the Respondent employed at its Quincy plant, exclusive of office, clerical, and professional employees, guards, and all supervisors as defined in Section 2 (11) of the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act. 3. F. W. Green and J. A. Dunn were not, at all times material herein, super- visory employees and were eligible to vote in the election held on January IT, 1951. 4. On April 20, 1951, International Molders and Foundry Workers Union of North America, AFL, Local 106, was, and at all times since has been, and now is, the representative of a majority of the Respondent's employees in the ap- propriate unit described above for the purposes of collective bargaining within the meaning of Section 9 (a) of the Act. 5. By refusing on April 23, 1951, and at all times thereafter, to bargain col- lectively with International Molders and Foundry Workers Union of North America, AFL, Local 106, as the exclusive representative of all its employees in the appropriate unit, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (5) of the Act. 6. By interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act. 7. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2 (6) and (7) of the Act. [Recommended Order omitted from publication in this volume.] ROBERTSON BROTHERS DEPARTMENT STORE, INC. and AMALGAMATED CLOTHING WORKERS OF AMERICA, CIO, PETITIONER. Cases Nos. 13-RC-1840 and 13-RC-1773. December 4,1951 Supplemental Decision and Order On July 18, 1951, the Board issued its Decision, Order, and Direc- tion of Election in the above-captioned case 1 in which it found no merit in the contentions of Retail Workers International, Local No. 37, AFL, the Intervenor, and the Employer that a subsisting collective bargaining contract between them was a bar to this proceeding. The Board found that the contract urged as a bar had been prematurely extended, and therefore under its precedents was not a bar. It directed an election. Thereafter, on July 27, 1951, the Intervenor filed its petition for reconsideration and rehearing in this case. It contended that the premature extension doctrine had not been raised either before or at the original hearing, and asserted that it had in its possession 1 95 NLRB 271. 97 NLRB No. 50. ROBERTSON BROTHERS DEPARTMENT STORE, INC. 259 evidence which, if introduced in the record, would have saved its contract with the Employer as a bar to this proceeding. It also urged that it was squarely within the rule of the De Soto Creamery 2 case issued by the Board shortly before the issuance of the decision herein. On August 10, 1951, the Board, having fully considered the Inter- venor's petition, issued an order reopening the record, and on Sep- tember 10, 1951, pursuant to notices duly served upon all the parties, a second hearing was held in this case before Ivan C. McLeod, hearing officer, at which all parties fully participated. The hearing officer's rulings made at this hearing are free from prejudicial error and are hereby affirmed. a Upon the entire record in this case, the Board finds: The original contract was executed on March 8, 1948, for an initial term expiring March 8, 1951. This contract had been amended and supplemented on several occasions. It contained no automatic re- newal provision. On January 19, 1951, the parties to this agreement again executed a "Supplemental Contract" in which, after adopting all the amendments and supplements previously executed, including the unauthorized union-security provision, and including certain changes and new provisions, the term of the original contract was extended to March 8, 1953.4 On February 10, 1951, an "Additional Supplemental Agreement" was executed by the Employer and the Intervenor in which the unlawful union-security provision was in- validated. At the first hearing the Board had before it two petitions : One, for a unit of the Employer's alteration department employees, filed on January 26,1951; the other, for a store-wide unit, filed on March 5, 1951.1 Both the Employer an the Intervenor conceded that an un- lawful union-security provision contained in the collective bargain- ing agreement between them prevented this contract from serving as a bar to the January 26, 1951, petition. They contended, however, ' De Soto Creamery & Produce Company, owned and operated by Armour & Company, 94 NLRB 1627. In this case a majority of the Board held that a new contract executed "pursuant to a 60-day notice under Section 8 (d) (1) of the Act, in the 60-day period prior to expiration of an existing contract, and which is also executed prior to the filing of a petition, will bar the petition. . . . 11 Chairman Herzog and Member Reynolds, who dis- sented, now consider themselves bound by the De Soto decision. e 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 Mem- bers Houston and Reynolds) 4 No evidence of the service of any 60-day notice by either party to the other for negotia- tion of this contract was introduced in the record at the original bearing. 5 The Board dismissed the petition in Case No. 13-RC-1773, because the unit sought therein was inappropriate, See footnote 1, supra. The issues in that case were not involved in the reopened hearing. 260 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that the supplemental contract of February 10, 1951, restored their contract as a bar to the petition filed on March 5, 19516 The record in the reopened hearing shows that the Intervenor served a notice upon the Employer approximately 60 days before the expi- ration of the March 1948 contract, requesting the reopening of the same, and seeking to negotiate terms for a new contract. We believe that this notice clearly satisfied the requirements of Section 8 (d) (1) of the Act, and that it is within the rule of the De Soto Creamery case.' We find no merit in the Petitioner's contention that the 60-day notice served by the Intervenor upon the Employer was of no effect because the terms of the contract of January 19, 1951, had in fact been agreed upon before this notice had been served.8 For reasons more fully stated in the De Soto Creamery case, we find that the 60-day notice served by the Intervenor upon the Employer before the expiration date of the original contract, and the execution of a new contract-with- in the 60-day period, barred the petition of March 5,1951.' We shall dismiss this petition. -Order IT IS HEREBY ORDERED that the petition filed herein on March 5, 1951, be, and the same hereby is, dismissed. d The Petitioner contended that the supplemental agreement of February 10, 1951, in which the unlawful union-security provision was declared inoperative , had not been pub- licized among the membership . It asserted that the Intervenor purposefully did not inform the employees that the unlawful union -security provision was no longer in force, in order to prevent the employees from leaving the Intervenor . This omission by the Intervenor to inform its membership that they were now free to stay in the union or not, prevented the contract, in the Petitioner's view, from serving as a bar. However, we will treat the February 10, 1951, supplemental agreement for what it purports to be, and, as such, It Is effective in preserving the contract as a bar. 'r See footnote 2, supra. $ The Intervenor's witness testified at the second hearing that only minor changes were made in the terms agreed upon before the 60-day notice was served. IIn its brief on the reopened hearing, the Intervenor also contends that Its contract of March 8, 1948, being for a 3-year term , was of unusual duration after the first 2-year period, and hence could not have been prematurely extended under the Board's decision in Cushman's & Sons, 88 NLRB 121. In view of our finding herein, we find it unnecessary at this time to discuss the principles involved in that case. PLAINFIELD COURIER-NEWS Co. and ELIZABETH NEWSPAPER GUILD, AFFILIATED WITH AMERICAN NEWSPAPER GUILD, CIO, PETITIONER. Case No. 2-RC-2911. December 4, 1951 Supplemental Decision Pursuant to the Decision and Direction of Election," dated July 25, 1951, an election by secret ballot was conducted in this case on August i 95 NLRB 532. 97 NLRB No. 46.