Samuel Stamping and Enameling Co.

SAMUEL STAMPING AND ENAMELING COMPANY 635 5. 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 and is engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act. 6. All editorial and news department employees, including staff writers, State editors, telegraph editors, copy readers, reporters, assistant sports editors, society editors, file clerks, and copy boys ; and excluding editor, assistant to the editor, managing editor, assistant managing editor, sports editors, city editors, and other supervisors as defined in the Act, and part-time and temporary employees, con- stitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act. 7. American Newspaper Guild, C. I. 0., was on November 30, 1949, and at all times since has been, the exclusive representative within the meaning of Section 9 (a) of the Act of all employees in the aforesaid unit for the purposes of collective bargaining. 8. By refusing to bargain collectively with the aforesaid Union as the exclusive representative of the employees in the appropriate unit, the Respondent has engaged and is engaging in unfair labor practices within the meaning of Section 8 (a) (5) of the Act. 9. 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.] SAMUEL STAMPING AND ENAMELING COMPANY and UNITED STEEL- WORKERS OF AMERICA, CIO, PETITIONER. Case No. 10-RC-1570. December -20,1951 Decision and Direction of Election Upon a petition duly filed under Section 9 (c) of the National Labor Relations Act, a hearing was held before Paul L. Harper, hearing officer. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed. 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 Members Reynolds and Murdock]. Upon the entire record in this case, the Board finds : 1. The Employer is engaged in commerce within the meaning of the Act. 2. The labor organizations involved claim to represent certain em- ployees of the Employer.' 3. The Intervenor has represented the employees of the Employer tender the terms of a contract executed on October 10, 1942, for 1 i Local No. 31, Stove Mounters International Union of North America, AFL, was allowed to intervene on the basis of an existing collective bargaining agreement with the Employer. 97 NLRB No. 82. 636 DECISIONS OF NATIONAL LABOR RELATIONS BOARD year and automatically renewable annually thereafter in the absence of 30 days' prior notice by either party. On August 8, 1951, the Intervenor wrote the Employer requesting that this contract be opened for wage negotiations and other changes. Meetings took place between representatives of the Employer and of the Intervenor on August 8, 9, 10, 11, and 12, and on the last date the contract was signed.2 Meanwhile, on Friday, August 11 at 5: 14 p. m., a telegram addressed to W. R. Samuel, President, Samuel Stamping and Enameling Co., was filed with Western Union by the Petitioner; in which the Petitioner claimed to represent the employees of the Employer. In accordance with standing instructions from the Employer to Western Union with respect to telegrams received after the Employer's hours, a telegraph operator telephoned A. L. Johnstone, treasurer of the Employer, at his home. The operator informed Johnstone that she had a rather lengthy message from the Petitioner and attempted to read it several times. However, Johnstone told her to hold the message until Monday and send it to the Employer on the simplex (teletype) machine.' Samuel received the actual telegram over the teletype system about 9 a. m. Monday morning, August 13, 1951. It is the position of the Intervenor that the Employer did not re- ceive the Petitioner's notice of claim until August 13, the day after the execution of the contract between the Employer and the Intervenor on Sunday, August 12, 1951, and that the contract is a bar.' The Em- ployer concurs in this position. The Petitioner asserts that the Em- ployer received notice of the claim of representation on August 11, 1951,5 and that the filing of the petition within 10 days thereafter on August 20 removed the contract as a bar .6 We find merit in the position of the Petitioner. Johnstone was notified of the telegram pursuant to instructions of the Employer, which were apparently designed to insure that a responsible official of the Employer would be available to receive telegrams after working 2 Although it is set forth in the contract that the contract was entered into on August 11, 1951 , all parties agree that it was executed on August 12, 1951 , and we so find. a Ordinarily when a telegram is received by western Union for the Employer during working hours, the simplex department of Western Union sends it to the Employer on the teletype system 4 The Intervenor also contends that even if the Petitioner had given notice of its claim on Saturday , August 11, the contract was fully agreed to on August 11 ; and that as the typing and signing of the contract followed the agreement as an uninterrupted sequence, the general rule that notice received before the actual signing of a contract prevents the contract from becoming a bar is inapplicable . We find no merit to this contention for it is well established that only a contract reduced to writing and signed can constitute a bar. See for example, Newman-Crosby Steel Corporation, 73 NLRB 513. 5In view of our finding hereinafter that the contract is no bar, we need not consider the alternative contention of the Petitioner that the contract is a "members only " contract which cannot operate as a bar. General Electric X-Ray Corporation , 67 NLRB 997. SAMUEL STAMPING AND ENAMELING COMPANY 637 hours. Furthermore, Johnstone had participated in some of the nego- tiations which led to the execution of the contract on August 12, 1951, and was aware of the circulation of handbills at the, Employer's plant by the Petitioner. In view of these facts, when Johnstone was informed by the telegraph operator that the telegram was from the Petitioner, it is reasonable to believe that he was aware of the nature of the telegram,7 and was under an obligation to permit delivery of it before the contract with the Intervenor was signed. Accordingly, his lack of knowledge of the contents of the telegram may not be used to support an argument that the Employer was not notified of the Peti- tioner's claim of representation until the day after the contract was executed. We find that the telegram of August 11 from the Petitioner constituted effective notice of Petitioner's claim to representation on that date, and that the contract executed the following day is not a bar. 8 A question affecting commerce exists concerning the representation of employees of the Employer within the meaning of Section 9 (c) (1) and Section 2 (6) and (7) of the Act. 4. We find that all employees 9 at the Employer's Chattanooga, Tennessee, plant, including appliance testers, pattern and templet makers, model makers, and plant clerical employees,10 but excluding office and clerical employees, salesmen, technical employees, profes- sional employees, guards," and supervisors as defined in the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act .12 [Text of Direction of Election omitted from publication in this volume.] ' The Intervenor maintains that Johnstone did not customarily accept messages addressed to Samuel, but only those addressed to the Company The record does not support this contention . Further, we note that Johnstone gave as his reason for not listening to the contents of the telegram that he was in a hurry to take his family to dinner and the operator had stated it was a lengthy telegram. 9 See Groveton Papers Company, Inc. (Northumberland Branch ), 96 NLRB 1369; Evan - Milling Company, 94 NLRB 1127; cf. Snyder Engineering Corporation, 90 NLRB 783. The Carborundum Company, 78 NLRB 91, relied on by the Intervenor, is clearly distin- guishable. In that case , a letter was addressed to the plant manager of the employer, in which the petitioner claimed recognition. The letter was received at the plant on the same day a new contract was executed by the employer and the intervenor, but, in the ordi- nary course of business , the letter was not received by the plant manager until the followink day. The Board concluded that the employer did not have actual knowledge of the peti- tioner's claim when it executed the contract, and held the contract a bar. In the instant proceeding Johnstone, an agent of the Employer designated to receive telegrams after the Employer's working hours, had actual knowledge of a telegram from the CIO the day before the contract was signed by the Employer and the Intervenor. The only reason Johnstone did not have knowledge of the contents of the telegram was because of his refusal to allow the operator to read the telegram to him. 9 Included in the unit are the three part-time watchmen who spend more than 50 per- cent of their time in production work. 10 Included in this category are the timekeeper , stockroom clerk, and time checkers. 11 Excluded from the unit as guards are the four full -time watchmen. 12 The parties are in complete agreement concerning the appropriate unit, and the inclusion and exclusion in the various categories of employees therein.