Royal Dalton, Ltd.

760 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that he had the authority to discipline or discharge the assistant; that half of his time was spent in physical labor and the remainder of his time was devoted to preparation of reports. He further testified that the recapping plant managers I and II have the usual functions of foremen as well as the authority to recommend the discharge of em- ployees. We find that the warehouseman and the recap managers I and II are supervisors as defined in the Act and shall therefore exclude them from the unit. We find that all employees in the Employer's recap plant at 443 Eye St. N. W., the servicemen employed at the retail store locations at 443 Eye St. N. W., and 2316-18 Rhode Island Ave. N. W., the warehouse employee and the chauffeur-porter at 1112 19th St. N. W., but excluding all sales personnel, clerical employees, guards, the warehouseman, the recapping managers I and II, and all other supervisors as defined in the Act, constitute a unit appropriate for the purpose of collective bargaining within the meaning of Section 9 (b) of the Act. [Text of Direction of Election omitted from publication.] Royal Dalton, Ltd. and Warehouse & Distribution Workers Union, Local No. 688, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, AFL, Petitioner. Case No. 14-RC-690. May 16, 1955 DECISION AND ORDER Upon a petition duly filed under Section 9 (c) of the National Labor Relations Act, a hearing was held before William F. Trent, 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 Petitioner and the Intervenor, International Ladies' Gar- ment Workers' Union, AFL, are labor organizations which claim to represent certain employees 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. Petitioner seeks a unit of production and maintenance employees. The Intervenor and the Employer contend that their contract of De- cember 22, 1954, is a bar to this proceeding. For reasons set forth below, we find merit in the Intervenor's contention. On December 10, 1954, the Employer wrote to the Intervenor that as the latter had been the recognized bargaining representative for a 112 NLRB No. 100. ROYAL DALTON, LTD. 761 production and maintenance unit of its predecessor company, the Em- ployer would like to negotiate a contract with the same labor or- ganization. Negotiations followed immediately, and on December 22, 1954, a contract was executed to be effective January 3, 1955, until May 31, 1956. By letter, dated December 21, 1954, the Petitioner in- formed the Employer that as it had learned the Intervenor had been permitted to carry on active organizational work on the Employer's premises, the Petitioner was demanding that it be accorded the same privilege. No demand for recognition or other demand was made. This letter was mailed December 22 and received by the Employer on December 23, the day following the execution of the contract. On December 28, 1954, the Employer replied that as no demand for recognition had been made prior to the execution of the contract on Deecember 22, the Petitioner's request must be refused. On the same day, December 28, the instant petition was filed. The Petitioner contends that as the contract of Dcember 22 was by its own terms not to become effective until January 3, 1955, such contract is vulnerable to a petition filed prior to the latter date and cannot constitute a bar. The Intervenor urges that although the general rule was correctly stated by the Petitioner, there are mitigating circum- stances in the facts of this case, which should persuade the Board to relax the rule in this instance. The evidence, which is uncontradicted, shows clearly why the Em- ployer requested the postponement of the effective date of the contract. It will be noted there were only 5 working days left in the calendar year due to the Christmas and New Year holidays in that period. There was, furthermore, a shortage of material which might have re- sulted in less than full working days. A new contract put into effect for only a few days at the end of the calendar year would entail con- siderably expensive bookkeeping operations for the Employer. In Mississippi Lime Cognpany,' the Board reviewed the reasons for adopting the general rule, which in most cases it had found to be a salutary one. However, in that case we held that where a contract was executed between the operative date of an automatic renewal clause and the expiration date, such contract should bar a representation petition, even though filed prior to the effective date of the contract. This exception to the general rule has been followed in later cases.2 In the instant case, there is no evidence as to the terms of a preceding contract; nor does it appear that the instant contract was executed during such automatic renewal period. By reason thereof, the ex- ception previously established is not applicable to the instant proceed- ing. Nevertheless, we believe that the present circumstances do not 1 lftississippa Imne Conipana/, 71 NLRB 472 De Soto Creamery & Produce Co , 94 NLRB 1627, 1629-33; Arvin Industries, Inc., 104 NLRB 300. 762 DECISIONS OF NATIONAL LABOR RELATIONS BOARD warrant application of the general principle. In support of this con- clusion, we note that the contract is not a stop-gap agreement, but a written complete contract covering wages and working conditions; that the record contains no evidence of fraud or of a desire by the parties to manipulate the effective contract date to preclude the filing of rival petitions; and finally that the effective contract date, which was postponed for only a few days at the end of the calendar year, cannot be said to have been unreasonably delayed. A contract executed under these circumstances clearly tends to stabilize bargaining relations, which should not be disrupted by a new election at this time. We find for the reasons set forth above, that the contract of Decem- ber 22 constitutes a bar to a present determination of representatives- We shall, therefore, dismiss the petition.' [The Board dismissed the petition.] a The Petitioner also contends that even if we consider the contract execution date con- trolling in this case, the continet is nevertheless not a bar on other giounds• (l) The contract was in violation of Section 8 (a) (1) and 8 (a) (2) of the Act , (2) it contained an illegal moon-security clause, and (3) the contract was executed after the Employer had become .mare of Petitioner's interest in the employees We find no merit in the first contention, as it is clearly established that unfair labor practice charges will not be con- sideied in a iepiesentation proceeding Nor do we find merit in the second contention, for reasons set forth in 11Izlivaul,ee Gas Light Company, 111 NLRB 837 In support of its third contention, the Petitioner cited the case of Associated Food Dsstributors, Inc , 109 NLRB 574 Iiowevei, the latter is clearly distinguishable In that case, the Employer was notified of it majoiity claim to be followed by the filing of it petition In the instant case, theie iias no evidence of a (lain of maloiity or of an intent to file a iepresen tation petition. The fact that on the day the contract was signed the Employee was shown a. encular distributed by the PCUtionee to employees, does not constitute such notice of claim as to prevent it coutiact b.ii Orkin "The Rat Man," Incorporated 1 and Warehouse Employees Union, Local #322, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, AFL, Pe- titioner. Case No. 5-1?C-1498. May 17,1955 DECISION AND ORDER Upon a petition duly filed under Section 9 (c) of the National Labor Relations Act, a hearing was held on June 23, 1954, before Robert W. Knadler, hearing officer. On January 12, 1955, the Board issued its Order reopening the record for the taking of further evi- dence, and remanding the case to the Region for the purpose of further hearing. Such further hearing was held on February 15, 1955, before the same hearing officer. The hearing officer's rulings made at the. hearings are free from prejudicial error and are hereby affirmed. Upon the entire record in this case, the Board finds that : The Petitioner seeks to represent a unit of all servicemen engaged in termite control at the Employer's Richmond, Virginia, opera- 1 The name of the Employer appears in the caption as amended at the hearing. 112 NLRB No. 101.