Mallinckrodt Chemical Works

MALLINCKRODT CHEMICAL WORKS 187 packing and paint department, and there is no evidence that inde- pendent'investigations are made of-such recommendations in any case.' Accordingly, we find that the leadermen and board machine men have and exercise authority effectively to recommend promotions of em- ployees under them and are supervisors within the meaning of the Act s We shall therefore exclude them from the unit. We-find that the following employees of the Employer at its New Brighton, Staten Island, New York, plant constitute a unit appropri- ate for the purposes of collective bargaining within the meaning of Section 9 "(b) of the Act : All production and maintenance employees including inspectors, but excluding office and clerical employees, professional employees, testers, watchmen, guards, executives, foreman, mill leadermen, large batch leadermen, dry paint, Sabinite and Oriental leaderman, Perf-A- Tape -leaderman, shipping leaderman and raw materials leaderman in the packing and paint department, shipping leadermen in the paste paint department, block leadermen, takeoff leadermen, board machine men, and other supervisors as defined in the Act. [Text of Direction of, Election omitted from publication.] 8 There is evidence that in two instances, one involving a recommendation for suspen- sion by a takeoff leaderman and the other a, 'recommendation for discharge by a board machine man, that independent investigations were made before action was taken. Also there was testimony that separate investigations are made of recommendations for dis- charge by the shipping leaderman in the packing and paint department . However, there is no evidence of independent investigation of any other recommendations for changes in status. 9 -United States Gypsum Company, 112 NLRB 1217. Mallinckrodt Chemical Works and International Brotherhood of Electrical Workers, A. F. L., Petitioner. Case No. 14-RC- 2728. October 3,1955 DECISION AND ORDER Upon a petition duly filed under Section 9 (c) of the National Labor Relations Act, a hearing was held before Henry L. Jalette, 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 employees of the Employer.' I 1 The Independent Union of Chemical Plant Workers intervened on the basis of a contractual interest. 114 NLRB No. 48. 188 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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 seeks to sever a unit of electricians from a produc tion and maintenance unit. The Employer and Intervenor contend- that the petition is barred by their contract. - On April 28, 1954, the Intervenor and Employer entered into a contract effective January 1, 1954, covering among others the elec- tricians sought by the Petitioner. The contract was to continue in effect until January 1, 1955, and from year to year thereafter absent 60 days' notice prior to the anniversary date.of intent to terminate. The contract also provided that it could be changed "but not termi- nated" by either party's serving upon the other ... notice of the change desired at least 60 days prior to contract [anniversary date], in which event this contract shall be auto-' matically renewed for one year subject, however to such changes as may be mutually agreed upon. [Emphasis supplied.] On October 13, 1954, the Intervenor served timely notice upon the Employer seeking extensive changes in their contract.2 Modifica- tions were not agreed upon and reduced to writing until March 25, 1955. The resulting document was basically the same as the old agree- ment, incorporating, however, certain changes which had been agreed to by the parties in June 1954 and those resulting from the October 1954 reopening. This agreement was effective by its terms for 1 year from January 1, 1955, subject to automatic renewal. On March 7, 1955, some 21/2 weeks before the new document was signed, the Peti- tioner filed its petition. The Employer and Intervenor take the position that their contract is a bar to this proceeding because it automatically renewed itself . before the filing of the petition. The Petitioner argues, however, that under the rule of the American Lawn Mower case 3 its petition was timely filed. In that case the Board held, in effect, that when a contract con- tained coterminous modification and termination clauses, a broad notice given under the modification clause, which clause was itself silent as to the effect of the notice on automatic renewal, implied an intent to terminate the contract. That holding is not applicable here, for the contract under consideration expressly states that in case a 2 The proposed changes covered 12 items, which included requests for (1 ) ageneral wage increase ; ( 2) revised vacation plan; ( 3) additional holidays ; (4) changes in seniority clause; ( 5) the Employer 's supplying certain work clothes; ( 6) a washup period; (7) mechanical department merit rating increases ; ( 8) advance in rates of pay for riggers' and mechanics ; ( 9) establishing of "senior mechanics" classification ; ( 10) reclassification of certain window washers ; ( 11) changes in time limit in processing grievances; and (12) new pay rates for temporary supervisors and leadmen 3 108 NLRB 1589. FISHERMEN'S MARKETING ASSOCIATION OF WASHINGTON, INC. 189 notice to modify is given the contract will be renewed for another full term. As the contract is unambiguous in this respect, there is no room for any inference that the Intervenor in fact intended to terminate the contract when it gave notice of a desire to modify. Under these cir- cumstances, we find that on March 7,1955, when the petition herein was filed, the contract had already renewed itself for another year. Once the contract renewed itself on January 1, 1955, those limitations set forth in Section 8 (d) of the Act on the duty to bargain during the term of an agreement 4 were, of course, applicable. Negotiations for changes after January 1, 1955, in existing terms of the contract were entirely voluntary rather than mandatory.5 Under these circumstances, we find that the proposal for modification of the contract and the action taken thereon did not unstabilize the existing contractual relationship be- tween the parties to such an extent as to preclude the application of our usual contract-bar rules. As the petition was filed during the term-of the automatically renewed contract,6 it was untimely filed and the existing contractual relationship constitutes a bar. We shall therefore dismiss the petition. [The Board dismissed the petition.] MEMBER PETERSON took no part in the consideration of the above Decision and Order. 'Section 8 (d) provides in part that the duty to bargain in good faith "shall not be construed as requiring either party to discuss or agree to any modification of the terms and conditions contained in a contract for a fixed period. . . . a The modification clause states that the contract is renewed "subject . . . to such changes as may be mutually agreed upon." We construe this language as not waiving the right of either party under Section 8 (d) to refuse to bargain, after the automatic renewal of the contract, about any matters contained therein. 9 Contrary to the Petitioner 's contention , we find that the document executed on March 25, 1955, was not a new contract , superseding the automatically renewed contract, but in substance merely incorporated in the renewed contract modifications agreed to by the parties, a procedure contemplated by the "modification clause" of the old contract quoted in the text, above. Fishermen's Marketing Association of Washington, Inc. and Pacific Coast Fishermen's Union, affiliated with Seafarer's International Union of North America, AFL, Petitioner. Case No. 19-RC-1605. October 4, 1955 DECISION AND ORDER Upon a petition duly filed under Section 9 (c) of the National Labor Relations Act, a hearing was held before John H. Immel, Jr., hear- ing officer. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby, affirmed. 114 NLRB No. 49.