National Foundry Co. of New York, Inc.

NATIONAL FOUNDRY COMPANY OF NEW YORK, INC. 357 that the ITU's compliance status prevented it from dealing effec- tively with the Employer. However, the Petitioner also testified that he knew in January 1954 that the ITU was barred from using the Board's processes . Moreover, the • Petitioner also testified that he knew that he could not personally petition the Board if he were a member of the ITU. He also admitted that he "very possibly might have" made the statement, perhaps in March, that "according to the Taft-Hartley Act, 51 percent of the employees in a particular unit are supposed to be the bargaining agent and as such he was of the opinion that ITU should rightfully be the bargaining agent." Vomacka testified that he wanted the ITU even though he knew it could not utilize the processes of the Board. He further testified that he "believes the group [supporting the decertification petition] has the majority, if we feel we want to go into the ITU, I can't see any other way"; that if the Union Were decertified it was the group's thought that they still would like to be members of the ITU. In ad- dition, Vomacka admitted that approximately 2 days before the hear- ing (April 16, 1954), which was after the decertification petition had been filed, he told employee Saum, who had remained loyal to the Union, "I think if you Would come along with us and get into our membership with us, try to get into the ITU, this would all be over with." Under all the above circumstances, we are convinced that the Peti- tioner was, in fact, acting on behalf of the representatives of the ITU, a noncomplying labor organization, when he filed the petition herein. Therefore, we shall grant the Union's motion to dismiss the decerti- fication petition) [The Board dismissed the petition.2] 1 See Bcrnson Silk Mills, Inc., 106 NLRB 826. The Union herein is also out of compliance with the filing requirements .of the Act We note, therefore , that our dismissal of the instant decertification petition is`not tantamount to a recertification of this noncomplying Union. NATIONAL FOUNDRY COMPANY OF NEW YORK, INC. and UNITED STEEL- WORKERS OF AMERICA, CIO, PETITIONER. Case No. 2-RC-6420. July 23,1954 Decision and Order Upon a petition duly filed under Section 9 (c) of the National Labor Relations Act, a hearing was held before Louis A. Schneider, 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. 109 NLRB No. 66. 358 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2. The labor organizations involved claim to represent certain em- ployees of the Employer. 3. No question affecting commerce exists concerning the representa- tion of employees of the Employer within the meaning of Section 9- (c) (1) and Section 2 (6) and (7) of the Act, for the following reasons: The Petitioner, United Steelworkers of America, CIO, herein called the CIO, seeks to represent all the production and maintenance em- ployees at the Employer's Brooklyn, New York, plant. Intervenor, Local 142, Distillery, Rectifying and Wine Workers International Union of America, AFL, seeks to represent the same group of em- ployees. The National Foundry Independent Union, herein called the Independent, and the Employer assert that a contract between them is a bar to any determination of representatives at this time. The CIO contended at the hearing that the existing contract is not a bar because (1) it is a premature extension of the 1951 contract, and (2) the contract is invalid because the president of the Independent, who• signed the contract for the Independent, is a supervisor within the meaning of the Act. The record shows that on November 14, 1951, the Employer and the Independent executed a contract effective until November 30, 1953, and thereafter for additional 2-year periods, absent notice of modi- fication or termination given 60 days prior to the expiration date of the contract. On February 14, 1953, the parties modified the con- tract and, among other things, extended its term to February 16, 1955, with the same renewal provisions as are contained in the original contract. The CIO filed its petition on November 25, 1953, rather than prior to September 30, 1953, the "Mill B" date of the contract. Prematurely extended contracts will not be a bar to an election if a petition is filed timely with respect to the "Mill B" date of the con- tract which was prematurely extended. Inasmuch as the petition herein was not timely filed under this well-established doctrine,' the present contract, although prematurely extended, will bar the present petition. As stated previously, the CIO contends that the contract was in- valid because Parker, the president of the Independent who signed the contract, was a supervisor. It offered evidence at the hearing de- signed to show the supervisory status of Parker, at the time of the execution of the 1951 contract, at the time of its extension, and at the time of the hearing. The intended effect of the testimony adduced by the CIO was to show a violation of Section 8 (a) (2) of the Act. Assuming, arguendo, that at such times Parker was in fact a super- visor, that fact might be pertinent to a charge in an unfair labor 1 Grand Leader Dry Goods Company, 106 NLRB 1141 ; Republic Steel Corporation, 84 NLRB 483. NATIONAL FOUNDRY COMPANY OF NEW YORK, INC . 359 practice proceeding that the Employer had dominated or interfered with the formation or administration of the Independent or otherwise violated Section 8 (a) (2) of the Act. However, where, as in the instant case,'the Board is holding a hearing on a representation peti- tion, it is not the policy of the Board to permit the litigation at such a hearing of questions whether the Employer engaged in conduct constituting unfair labor practices.2 Accordingly, we find that the evidence adduced as to Parker's supervisory status was improperly admitted by the hearing officer insofar as it was offered for the pur- pose of invalidating the contract as a bar, and we will give no weight to such evidence. On the basis of the whole record, we find that the 1951 contract between the Independent and the Employer, as extended, is a bar to the petition filed herein. We shall, therefore, dismiss the petition. [The Board dismissed the petition.] CHAIRMAN FARMER, concurring : I concur in dismissing this petition. But, since I am in basic dis- agreement with the premature extension doctrine (see my separate opinion in Sefton Fibre Can C0.3), I need not resort to tortuous reason- ing to avoid its application in this case. I would simply hold that the valid and subsisting agreement between the Intervenor and the Em- ployer is a bar to an election at this time. In order to avoid the premature extension concept to which they adhere, my colleagues look to the 1951 contract which is no longer in existence, as determinative of whether a question concerning rep- resentation now exists. The majority refuses to entertain this petition because it was filed after a date-in September 1953-which no longer has any significant relationship to the collective bargaining now going on in the plant. Relying upon this nonexistent contract, the majority agrees to dismiss this petition. But, if it can be said that a present election is inappropriate, it can only be because of the Inter- venor's current contract with the Employer. Certainly, a finding of stable labor relations cannot rest on the fact that this petition was filed 2 months after the day when the expired 1951 contract, had it never been canceled (which it was), would have renewed itself (which it did not). I am unwilling to adopt this topsy-turvy reasoning which could lead me to say that an expired contract is a bar to an election of representatives but that an existing contract is not. The contract-bar rule is grounded on the principle that a current collective- bargaining contract establishes peaceful and stable labor relations and precludes the holding of a representative election during its valid See e. g., Loris Motor Sales, Inc., 104 NLRB 1106. 8109 NLRB 360. 360 DECISIONS OF NATIONAL LABOR RELATIONS BOARD, term. In deference to this salutary principle, I would disregard the expired contract and hold that the current agreement constitutes a bar to this petition. SEFTON FIBRE CAN COMPANY and DISTRICT LODGE No. 24, INTERNA- TIONAL ASSOCIATION OF MACHINISTS, AFL, PETITIONER . Case No. 36-RC-965. July 23,1954 Decision and Order Upon a petition duly filed under Section 9 (c) of the National Labor Relations Act, a hearing was held before E. G. Strumpf, hear- ing 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 employees of the Employer. 3. No question affecting commerce exists concerning the represen- tation of the employees of the Employer within the meaning of Sec- tion 9 (c) (1) and Section 2 (6) and (7) of the Act, for the following reasons: Since December 1950, the Employer and Intervenor (Printing Spe- cialties and Paper Products Local Union No. 387, AFL) have been in a collective-bargaining relationship covering the production and maintenance employees here involved at the Employer's Portland, Oregon, plant. On November 28, 1951, the contracting parties signed an agreement covering these employees, effective from December 1, 1951, to December 1, 1952, and subject to a 60-day automatic renewal clause for yearly periods thereafter. In the absence of timely notice, this contract was automatically renewed on December 1, 1952, for an additional 1-year period. On October 31, 1952, after the automatic renewal notice date of the above contract, the Petitioner, which separately represents a small group of maintenance employees at the Employer's plant, filed a peti- tion covering the other production and maintenance employees then represented by the Intervenor. A Board field examiner informed the Petitioner that a contract bar existed and the petition was withdrawn on November 13, 1952. Another petition was filed by the Petitioner on December 10, 1952, because Petitioner heard that the Employer and Intervenor were conducting new negotiations. This petition was dismissed by the Regional Director on January 14, 1953, on contract- bar grounds and, following the Petitioner's appeal, the Board sus- tained the Regional Director's action on March 27, 1953. 109 NLRB No. 64.