Refrigeration Manufacturing, Inc., et al.

510 DECISIONS OF NATIONAL LABOR RELATIONS BOARD REFRIGERATION MANUFACTURING, INC., ET AL. i and IN- TERNATIONAL UNION, UNITED AUTOMOBILE, AIRCRAFT, AGRICULTURAL IMPLEMENT WORKERS OF AMERICA, UAW-CIO, Petitioner. Case No. 21-RC-2853. April 29, 1953 SUPPLEMENTAL DECISION, ORDER, AND DIRECTION OF ELECTION On February 4, 1953, the Board: issued a Decision and Order 3 dismissing the petition in the above -entitled proceeding. On February 19, 1953, the Board issued an order granting the motions for reconsideration of the Petitioner and the In- tervenor, International Association of Machinists, District Lodge No. 94, AFL, reopening the record in the case and re- manding the proceeding to the Regional Director for a further hearing. On March 2, 1953, the hearing was reopened before Irving Helbling, hearing officer. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed. Upon reconsideration, for reasons set forth in paragraph 3, below, the Board is now of the opinion that the 1949 agreement is not, as found in the original Decision and Order, a bar to this proceeding. Accordingly, we shall vacate the order of February 4, 1953, dismissing the petition. 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 cer- tain employees of the Employer.a 3. A question affecting commerce exists concerning the representation of employees of the Employer withinthe meaning of Section 9 (c) (1) and Section 2 (6) and (7) of the Act. In our original Decision and Order in this matter we dis- missed the petition on the ground that the 1949 collective-bar- gaining agreement between the contracting unions and the em- ployer members of the Association constituted a bar. Our decision was based on the fact that the record contained no 1 The record discloses that Peterson Showcase & Fixture Co. resigned from the Refrigera- tion Manufacturers Association of Southern California, hereinafter referred to as the Associ- ation, in June of 1952. The petition is therefore dismissed as to it. 2 Pursuant to the provision of Section 3 (b) of the Act , the Board has delegated its powers in connection with this case to a three-member panel [Members Houston, Murdock, and Styles]. 8 Not reported in printed volumes of Board decisions. 4 The hearing officer permitted the Association ; Los Angeles Building and Construction Trades Council; Los Angeles County District Council of Carpenters; Millmen & Cabinet Makers Local No. 721. United Brotherhood of Carpenters and Joiners of America; Painters Local No. 792, Brotherhood of Painters, Decorators and Paper Hangers of America, AFL; Local Union No. 371, Sheet Metal Workers International Association; and Local Union No. 196, International Brotherhood of Teamsters , Chauffers, Warehousemen and Helpers of America, hereinafter referred to collectively as the Contracting Unions, to intervene on the basis of their contractual interest. The International Associatlonof Machinists, District Lodge No. 94, AFL, was permitted to intervene on the basis of an adequate showing of interest. Local Union No 108, Sheet Metal Workers International Association was permitted to inter- vene in order to protect its interest in a bargaining unit it represents as an individual repre- sentative 104 NLRB No. 74. REFRIGERATION MANUFACTURING, INC., ET AL. 511 evidence to show that any of the parties to the agreement had served a timely notice of a desire to modify or amend on the other parties,s and therefore the contract had automatically renewed itself for a period of 1 year, thus barring the petition which was filed after the automatic renewal date. Evidence introduced at the reopened hearing shows that on or about August 20, 1952, the secretary of the Association received a letter signed by Leo A. Vie, the secretary of the Los Angeles Building and Construction Trades Council, which by its terms constituted official notice to the Association and its members "on behalf of the unions signatory to" the 1949 agreement, of "their desire to open said agreement to negotiate modification and/or amendments to said agreement." Thereafter onNovem- ber 3, 1952, Virgil Bargeron, the chairman of the Association's negotiating committee, received a letter from Earl E. Thomas, the chairman of the Unions' negotiating committee, on behalf of the unions signatory to the 1949 agreement, notifying the Associ- ation of "our intention to terminate the existing labor agree- ments between us, such termination to be effective fifteen days after the date hereof on November 18, 1952." On or about November 17, 1952, Bargeron received another letter from Thomas, notifying the Association that in accordance with article XVII-B of the 1949 agreement , that agreement was terminated. It is apparent from the foregoing that the 1949 agreement did not automatically renew itself but was terminated in accordance with its terms. Had the Board been aware of these circum- stances, it would not have found that contract a bar.6 The In- 5 Article XVII of the 1949 agreement reads as follows: A. The term of this Agreement shall commence on the 1st day of November 1950 and continue until the 1st day of November 1952, and for additional periods of one year there- after, unless during the month of August prior to any anniversary date of this Agreement the Refrigeration Manufacturers Association of Southern California, representing the signatory Employers hereto, or theLos Angeles Building and Construction Trades Council, representing the signatory Unions hereto, give noticetothe other of its desire to negotiate such modifications of or amendments to this Agreement or any portions thereof as are specified in said notice . That if notice is given by either group for the parties , the group receiving said notice may notify the other group not less than fifteen (15) days prior to October 1, 1952, or the end of any subsequent yearly period of any modifications of or amendments to this Agreement or any portions thereof which it desires to negotiate, as are specified in the notice. B. Negotiations upon the modifications or amendments set forth in the notice or notices shall begin not later than forty- five (45) days prior to November 1, 1952, or the expira- tion of any subsequent yearly period and continue until Agreement has been reached, pro- vided, however, if no agreement is reached on or before November 1, 1952, or the end of any subsequent yearly period either group may thereafter give written notice to the other of its intention to terminate the Agreement on a specified date, not less than fifteen (15) days after the date of said notice . Such notice shall be given by the Chairman of the Ne- gotiating Committee representing the group desiring to terminate the agreement to the Chairman of the Negotiating Committee representing the other group . Regardless of the giving of such notice of intention to terminate, the parties shall continue to negotiate until agreement is reached or until the agreement has been terminated on the date spe- cified in the notice of intention by the giving of a prior written final notice of termination. 6 The Teamsters contends that the record does not contain any evidence to show that it was a member of the Los Angeles Building and Construction Trades Councilor that it had au- thorized the Council or its negotiating committee chairman to act in behalf of the Teamsters 512 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tervenors contend that even though the 1949 contract fails as a bar, the petition should be dismissed because the contract executed on February 17, 1953, constitutes a bar to a present determination of representatives because it was executed after the petition had been dismissed and prior to the Board's order reopening the record. We find no merit in this con- tention for the reason that the contract was executed while Petitioner' s motion for reconsideration was before the Board. 7 4. The Petitioner seeks a unit coextensive with the unit covered by the 1949 contract discussed above. The Inter- venors, except the IAM, contend that the unit sought by the Petitioner is unduly vague and incapable of definitive de- scription and' that it is therefore inappropriate. In its original petition the Petitioner sought all production and mainte- nance employees of the employer members of the Association. It amended its petition on the record to exclude various groups of employees currently represented as separate bar- gaining units 8 and certain employees of Weber Showcase and Fixture Co., Inc.9 With the exceptions noted above, all pro- with respect to reopening the 1949 agreement and that therefore the 1949 agreement was not reopened as regards its interest. We find no merit in the Teamsters' contention. The Team- sters signed the 1949 agreement and the "Resolution to Continue," as did both Vie and Thomas. The termination letters were sent on behalf of the unions signatory to the agreement and in accordance with the terms of article XVII ofthe agreement. At a meeting held on July 9, 1952, between representatives of the Association and representatives of the Contracting Unions. both Vie and Thomas were present although the representative of the Teasmters was absent. This meeting was for the purpose of exploring in a preliminary way matters relating to re- opening the contract. Moreover, pursuant to the notices sent out by Vie and Thomas, further negotiations were conducted which resulted in the execution of a contract on February 17, 1953, which was signed by the Teamsters . In the light of the above circumstances it is clear that both Vie and Thomas had apparent authority to act on behalf of the Teamsters , and that the Association was justified in acting in reliance thereon . Altamont Knitting Mills, Inc., 101 NLRB 525. 7Cf. General Electric Company, 100 NLRB 1318. To hold otherwise would be to penalize the Petitioner for the necessary delay inherent in the Board's decisional processes. The Petitioner promptly brought to the Board's attention the facts which now constrain us to re- verse our original decision, as soon as the Petitioner became cognizant of them. Moreover, these factors were within the peculiar knowledgeofthe Contracting Unions and the Employers. slntervenor IAM has executed individual contracts covering machinists with Refrigeration Manufacturing, Inc., Refrigeration Engineering, Inc., and Ward Refrigeration and Manufactur- ing Co. Certain employees of Weber Showcase and Fixture Co., Inc., are covered by separate contracts between that company and Local Union 108, Sheet Metal Workers International Association, Local 721 Cabinet & Millmen, and Painters Local No. 792, Brotherhood of Painters, Decorators and Paper Hangers of America, AFL. These agreements are known as the "Store Fixtures Agreements." The employees covered by these agreements work in separate departments, under separate supervision, and on a product different from that worked on by the employees involved in this petition. We shall exclude them from the unit hereafter found appropriate. 9 Weber Showcase Exhibit No. 1 lists these employees . Most of the employees on this list are professional or technical employees and machine shop and toolroom employees. The machine shop and toolroom employees at one time comprised a separate bargaining unit but are no longer represented by a bargaining representative. The list also includes janitors and guards . We find that all employees on the list are properly excluded from the unit hereinafter found appropriate. REFRIGERATION MANUFACTURING, INC.. ET AL. 513 duction and maintenance employees of the employer members of the Association engaged in the production of commercial refrigeration products are included in the unit sought by the Petitioner. With the exception of Weber Showcase and Fixture Co., Inc., none of the Employers manufactures any other product. The Association and the Contracting Unions as joint representatives have conducted negotiations covering these employees since 1946. On the basis of the above factors and on the entire record, we are persuaded that the unit sought by the Petitioner is appropriate for the purposes of collective bargaining. We find that the following employees of the employer mem- bers10 of the Refrigeration Manufacturers Association of Southern California constitute a unit appropriate for the purposes of collective bargaining within the meaning of the Act: All production and maintenance employees, excluding employees covered by contracts between the International Association of Machinists and employer members of the Association," employees covered by the "Store Fixtures Agreements,i12 employees listed in "Weber Showcase's Ex- hibit No. 1,"13 outside service employees, office and clerical employees, guards, and supervisors as defined in the Act. ORDER IT IS HEREBY ORDERED that the Order of the Board dated February 4, 1953, in this matter be, and it hereby is, vacated and set aside. [Text of Direction of Election omitted from publication.] lORefrigeration Manufacturing , Inc.. Refrigeration Engineering, Inc., Super Cold Corpora- tion, Weber Showcase 8- Fixture Co., Inc., Coldew Manufacturing Company, Vering Manu- facturing Co.. C. W . Refrigeration & Mfg. Co., Ward Refrigeration & Mfg. Co., Low Tempera- ture Mfg. Co. ii See footnote 8, supra. i2See footnote 8, supra. 12 See footnote 9, supra . The following classifications are excluded by this reference: Draftsman-designers (class A & B), draftsman- engineering (class AA-A-B-C), chief tooling inspector , inspector tooling (class A & B). tool planner & liaison ( class A & B), inspector- assembly (class A & B), inspector -fabrication (class A & B). inspector - quality control, janitors , jig & tool builders (class A-B -C), laboratory technician, machinist-general, machinist -bench (class A & B), machinist -helper , materials analyst, procurement follow up, production planner (class A & B), research mechanic (class A & B), scheduler (class A & B), shop follow up, timekeeper (class A & B), tool- crib attendant.