Fawcett-Dearing Printing Co.

FAWCETT-DEARING PRINTING COMPANY 21 in the Act,3 constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act. [Text of Direction of Election omitted from publication.] 3 We find in agreement with the parties that Irene Gaffney, Bea Ritter, Florence Flanmth, Melvin Schnure, Elmer Jung, Theodore Schwartz, and Margaret Fehl are supervisors under the Act FAWCETT-DEARING PRINTING COMPANYI and INTERNA- TIONAL MAILERS UNION, Petitioner. Case No. 9-RC-1905. July 7, 1953 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 Orville E. Andrews, 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 [Members Murdock, Styles, and Peter- son]. 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 employees of the Employer.' The Intervenor contends that its current contract with the Employer, as amended, bars this proceeding . The Employer agrees with this contention . The Petitioner contends that the contract is no bar. On September 2, 1950, the Intervenor and Employer executed a contract which provided: This agreement shall be effective from the 21st day of August, 1950, until the 1st day of April, 1953, and shall i The Employer's name appears as amended at the hearing. 2 The hearing officer properly rejected proof of alleged unfair labor practices Canada Dry Ginger Ale, Incorporated, 97 NLRB 597. The hearing officer also rejected the Em- ployer's offer of proof that the Petitioner, under its international constitution, will not accord equal privileges to all employees within the unit, and that a separate unit will be established for "fringe" employees in our opinion neither the facts appearing in the record, nor in the Employer's offer of proof, warrant a finding that the Petitioner will not accord adequate representation to all employees within the unit hereinafter found appropriate. However, if it is later shown, on appropriate motion, that equal representation has been denied to any of the employees in the unit, the Board will consider the question at such time Veneer Products, Inc., 81 NLRB 492, 494; Hughes Tool Company, 104 NLRB 318. The mo- tions of the Employer and Intervenor to dismiss are denied for the reasons hereinafter set forth in paragraph numbered 3 3Louisville Printing Specialties and Paper Products Union No. 561, International Printing Pressmen and Assistants Union of North America, AFL, was permitted to intervene on the basis of contractual interest 106 NLRB No. 3 22 DECISIONS OF NATIONAL LABOR RELATIONS BOARD continue in effect thereafter, unless sixty days written notice of a desire for change or termination shall be given by either party. Pending the determination of the conditions of a new Agreement in accordance with Part I, Section B hereof, this Agreement shall remain in effect. This Agree- ment may be reopened April 1, 1952, for negotiations concerning adjustment of wage rates and hours only, by either party giving notice sixty days in advance of its desire to so reopen this Agreement. On March 31, 1952, after timely notice by the Intervenor, the Employer and Intervenor executed a supplement which amended the original contract with respect to wages- and the cost-of- living formula, and extended its expiration date until April 1, 1955. The petition herein was filed on March 27, 1953. On the basis of these facts we find that, as the petition was filed before the expiration date of the 1950 contract, that con- tract is no bar.4 We find further that the supplemental contract is not a bar because it is a premature extension of the 1950 contract, the original term of which has expired.5 Accordingly, we find that a question affecting commerce exists concerning the representation of employees of the Em- ployer within the meaning of Section 9 (c) (1) and Section 2 (6) and (7) of the Act.' 4. We find that the following employees of the Employer constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act.' All shipping and warehouse department employees employed at the Employer's Louisville, Kentucky, plant, including the assistant foremen, but excluding all other employees , guards, foremen, and other supervisors as defined in the Act. [Text of Direction of Election omitted from publication.] 4 We cannot agree with our dissenting colleague in his interpretation of the so-called "automatic renewal clause" of the 1950 contract The provision, quoted in full above, states that after its initial term it "shall continue in effect thereafter, unless sixty days written notice of a desire for change or terinmation shall be given by either party " The Board has held that such a provision renders the contract "one which is terminable at will by either party" and cannot operate as a bar Texas Telephone Company, 93 NLRB 741, 742 Linder the circumstances, we see no warrant for treating this clause as the kind of "auto- matic renewal clause" to which our colleague adverts it seems to us that the Mill-B prin- ciple-- applicable only to a Mill-B clause which effectively operates to renew a contract for a definite term in the absence of prior notice- -should not be applied to a clause which clearly does not have that effect. 5Stewart-Warner Corporation, 100 NLRB 608 The Employer relies on Cushman's Sons, Inc., 88 NLRB 121 In that case, however, the supplement was executed at a time when the original agreement was no longer effective as a bar because as an agreement for more than 2 years it "was not a bar to an election after a lapse of a reasonable time, i.e., 2 years." Here, the supplement was executed on March 31, 1952--or within the initial 2-year period of the original contract- -at a time when the original contract was still effective as a bar 6In view of our determination, we deem it unnecessary to pass on the Petitioner's other contentions for finding the contract no bar. 7 The parties stipulated to the unit NORTHROP AIRCRAFT, INC. 23 Member Murdock , dissenting: I cannot agree with the majority that the premature extension doctrine should be applied in this case to remove the supple- mental agreement of March 31 , 1952, as a bar . The purpose of the Board ' s premature extension rule is to insure to em- ployees the right to challenge an incumbent union ' s representa- tive status at predictable and reasonable intervals ." In cases such as this , where the premature extension agreement was executed at a time when the original contract was , under Board rules , a bar, the Board has inferredthatthe subsequent agree- ment was intended to preclude the employees from seeking a change of representatives at or about the time the original contract would have expired . Therefore , in such cases the Board has entertained a rival claim or petition if it preceded the expiration date9 or the Mill B date of the original contract,'" as the case may be , Where, however , the extension agreement was entered into at a time when the original contract was not a barn or where the rival claim or petition postdated the Mill B date of the original contract ,'2 the Board has held that the subsequent agreement barred an election for the extended period. In this case the petition was filed after the Mill B date of the original contract . Therefore, it was, under the Board's con- tract-bar rules, untimely . The fact that the automatic renewal clause of the 1950 contract did not provide for renewal of that contract for a definite term is, I submit , of no significance in resolving the contract -bar issue in this case . I reach this conclusion because, in my opinion , the supplemental agreement, which was for a definite term, became effective as a bar immediately after the Mill B date of the original contract." Therefore , as the petition was filed after the Mill B date of the 1950 contract , the premature extension doctrine should not be applied to remove the supplemental agreement of 1952 as a bar to a present determination of representatives . Accordingly, I would dismiss the petition. 8Cushman's Sons, Inc., 88 NLRB 121; Wichita Union Stockyards Company, 40 NLRB 369. 9Gimble Brothers. Inc., 87 NLRB 449; Republic Steel Corporation, 84 NLRB 483. 'O International Harvester Co., 85 NLRB 1260; Northwestern Publishing Company, 71 NLRB 167. "Cushman's Sons, Inc., supr 'SPillsbury Mills, Inc„ 92 NLRB 172. 131bid. NORTHROP AIRCRAFT, INC. and INTERNATIONAL UNION, UNITED AUTOMOBILE, AIRCRAFT AND AGRICULTURAL IMPLEMENT WORKERS OF AMERICA, CIO (UAW-CIO), Petitioner . Case No . 21-RC-2931. July 7, 1953 SUPPLEMENTAL DECISION AND CERTIFICATION OF RESULTS OF ELECTION Pursuant to a Decision and Direction of Election issued by the Board on March 12 , 1953, ' an election by secret ballot was ' Not reported in printed volumes of Board decisions. 106 NLRB No. 4.