Diamond Printing Co.

112 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and maintenance employees, the traffic manager, dispatcher-inspectors, and all other supervisory employees 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. 4. The above Union was on September 8, 1952, and has been at all times since that date, the exclusive representative of all employees in the unit aforesaid for pur- poses of collective bargaining, within the meaning of Section 9 (a) of the Act. 5. By refusing on September 30, 1952, and thereafter to bargain collectively with the above-named Union as the exclusive bargaining representative of employees in the unit aforesaid, Respondent Receiver has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (5) of the Act. 6. By the above refusal to bargain, and by other conduct found above, thereby interfering with, restraining, and coercing employees in the exercise of rights guaran- teed by Section 7 of the Act, Respondent Receiver has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act. 7. By refusing on and after June 8, 1953, to bargain collectively with the above Union as the exclusive bargaining representative as aforesaid, Respondents Carolina Scenic Stages, as a corporation and as Debtor in Possession aforesaid, and Hamish Turner have engaged in and are engaging in unfair labor practices within the mean- ing of Section 8 (a) (5) and (1) of the Act. 8. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2 (6) and (7) of the Act. 9. Respondents Carolina Scenic Stages, as a corporation and as Debtor in Pos- session, and Hamish Turner did not commit any unfair labor practices, by refusal to bargain with the Union, or otherwise, prior to May 22, 1953, but said Respondents are and have been since that date responsible for remedying the unfair labor prac- tices engaged in by Respondent Receiver prior to that date. [Recommendations omitted from publication.] HENRY C. GRABOwSIuI , TRADING AS DIAMOND PRINTING COMPANY and LOCAL No. 58, AMALGAMATED LITHOGRAPHERS OF AMERICA, CIO, PETITIONER and LOCAL No. 322, INTERNATIONAL PRINTING PRESSMEN AND ASSISTANTS UNION OF NORTH AMERICA, AFL. Case No. 4- RC-2201. July 9, 1594 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 Julius Topol, 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 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. 3. Contrary to the Petitioner and the Employer, the Intervenor contends that its current contract with the Employer is a bar to the instant proceeding. On December 8, 1952, the Employer and the Intervenor signed a collective-bargaining contract for 1 year, renew- l After the hearing the Petitioner moved to remand the case for the taking of additional testimony perta•ning to the Intervenor's contract-bar contention. In view of our dispo- sition of this contention in paragraph 3, infra, the motion is hereby denied. 109 NLRB No. 20. HENRY C. GRABOWSKI 113 able annually thereafter ". . . unless either party shall send to the other, by registered mail, sixty (60) days prior to anniversary of said date, notice of termination or desire to change any term or con- dition. . . ." By registered letter, mailed on October 8, 1953, 1 day before the "Mill B" date 2 the Intervenor advised the Employer of its desire to open the contract for certain changes. On October 9, 1953, the Em- ployer found a postal slip in his post office box in Wilmington, Dela- ware, the mailing address where he receives all of his mail, notifying him that there was a registered letter being held for him in the Wil- mington post office. The following day, October 10, the Employer obtained the registered letter. On October 2, 1953, the Petitioner requested recognition from the Employer as collective-bargaining rep- resentative of its lithographic production employees, and on Novem- ber 12 filed the instant petition. On these facts, the Intervenor argues that its notice to the Employer was untimely because it was not actually received by the Employer until after the "Mill B" date, and therefore could not prevent the automatic renewal of the contract. Assuming arguendo, that the notice was late, the Petitioner contends that the Employer waived any defect in the timeliness of the notice requirements in the contract. This view is supported by the Employer's unequivocal statement at the hearing that it considered the contract effectively terminated as of December 8, 1953, as the result of the receipt of the Intervenor's registered letter. Although, ordinarily, the Board has strictly construed provisions which forestall automatic renewal clauses, it has not applied a rigid rule where "mitigating circumstances" are shown.' Here the Inter- venor itself sent a notice of modification pursuant to the contract clearly expressing its intent to terminate the contract. Subsequently, the Intervenor did not in any way countermand its letter of termina- tion and took no steps whatsoever to dissipate the impression it had created in the mind of the Employer and any other interested parties that such letter validly forestalled automatic renewal of the contract. It was only after a rival petition was filed, and the Intervenor's rep- resentative status was thereby placed in jeopardy, that the Inter- venor chose to seize upon a technicality for the purpose of vitiating the effect of its own letter. The Board will not lend its processes to such practices. Under the circumstances of this case, we find that the a In this case , the termination date-the day preceding the first day of the new contract term-was December 8, 1953. Including that date in the computation of the 60 days required by the contract , the "Mill B " date, or day on which the automatic renewal became operative, was October 9, 1953 . Therefore , the last day on which notice to forestall auto- matic renewal could be effective was October 8, 1953 Koenig Brothers , Inc., 108 NLRB 304; Wslliains Laundry Co , et at, 97 NLRB 995; Niles Laboratory, Inc, 92 NLRB 23. 3 Koenig Brothers, Inc., supra ; cf. Augat Bros. Inc., 97 NLRB 993 ; Evans Milling Com- pany, 94 NLRB 1127. 114 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Intervenor is estopped from alleging its own delinquency in the serv- ice of notice to terminate the contract. Accordingly, we find that the contract is not a bar to the instant proceeding. 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. The Petitioner seeks to sever a group of four lithographic em- ployees from the existing pressroom unit represented by the Inter- venor since 1947. The Intervenor contends that the pressroom unit, which includes 2 letterpress operators and a papercutter operator in addition to the 4 lithographers, is the only appropriate unit. The Employer is neutral. The Employer is engaged in the lithographic production process and other printing at its plant in Wilmington, Delaware. There are four employees engaged in the lithographic work, including a multi- lith press operator, an offset press operator, a platemaker and camera- man, and the latter's apprentice 4 Except for the multilith operator who spends about 1 percent of his time operating a letterpress, there is no interchange between the lithographers and other employees in the plant. The four employees sought to be represented by the Petitioner exercise the duties normally performed by lithographers and their equipment is the same as that customarily used in the lithographic process. The Board has frequently considered the skills and techniques incident to the lithographic process and has held that all such em- ployees form a cohesive group appropriate for severance purposes. Moreover, the union requesting severance is one which has historically represented separate units of lithographic employees .5 Under these circumstances, we find that the lithographers may constitute a separate appropriate unit if they so desires Accordingly, we shall direct an election in the following voting group : All lithographic production employees at the Employer's Wilmington, Delaware, plant, including multilith operators, offset press operators, platemakers and camera- men, and apprentices, but excluding printing pressmen, typographers, office and sales employees, cutter and bindery employees, guards, and supervisors as defined in the Act. If a majority vote for the Petitioner they will be taken to have indicated their desire to constitute a separate appropriate unit, and the Regional Director conducting the election directed herein is authorized to issue a certification of representatives to the Petitioner 4 Typesetters and compositors in the plant are represented by a labor organization not involved in this proceeding. 5 Fey Publishing Company, 108 NLRB 1031; 20th Century Press, 107 NLRB 292 ; Ditto Press, Inc, 93 NLRB 733. 0 American Potash and Chemical Corporation, 107 NLRB 1418. TEXAS CITY CHEMICALS, INC. 115 for the unit described above, which the Board, under such circum- stances, finds to be appropriate for purposes of collective bargaining. In the event a majority vote for the Intervenor, the Board finds the ex- isting unit to be appropriate and the Regional Director will issue a certification of results of election to such effect. [Text of Direction of. Election omitted from publication.] CHAIRMAN FARMER took no part in the consideration of the above Decision and Direction of Election. TEXAS CITY CHEMICALS, INC. and GALVESTON METAL TRADES COUNCIL, AFL, PETITIONER and OIL WORKERS INTERNATIONAL UNION, CIO. Case No. 39-PC-691. July 9,1594 Supplemental Decision , Order, and Second Direction of Election Pursuant to a Decision and Direction of Election issued herein on January 28, 1954,1 an election by secret ballot was conducted on February 26, 1954, under the direction and supervision of the Regional Director for the Sixteenth Region, among employees in the unit found appropriate by the Board. Following the election, the parties were furnished a tally of ballots. The tally shows that of approxi- mately 89 eligible voters, 89 cast valid ballots, of which 7 were for the' Petitioner, 30 were for the Intervenor, and 48 were cast against the participating labor organizations. There were 4 challenged ballots, which are not sufficient in number to affect the results of the election. On March 4, 1954, the Intervenor filed timely objections to conduct allegedly affecting the results of the election. The Intervenor objected to the election on the grounds that (1) during the period prior to the election the Employer sponsored, established, and domi- nated an Employees' Council with which the Employer met and dis- cussed matters of hours, wages, and working conditions; and (2) within the 24-hour period immediately preceding the election, the Employer sponsored a dinner for all its employees at a restaurant near Texas City, Texas, where the Employer's plant is located and that at this dinner an officer of the Employer made a speech to the assembled employees in which he made various promises of benefits to the employees, contingent on their voting against the Intervenor. Not reported in printed volumes of Board Decisions and Orders. 109 NLRB No. 13. 334811-55-vol. 109---9