Marston Corp.

76 DECISIONS OF NATIONAL LABOR RELATIONS BOARD copy of the motion served on Local 35 was not available to its counsel. If the latter, the factual allegations in the motion relate solely to Board proceedings involving Local 35 or matters within its peculiar knowledge. We will not, in any event, require proof of the Employer's allegations as the only matters alleged therein which we deem ma- terial herein are those pertaining to the various proceedings before the Board recited above and the non-compliance of Local 35, of which we take official notice. The allegation in Local 35's response concerning the Employer's motivation or its unfair labor practices are not relevant here. As to the appropriateness of the procedure utilized by the Employer, it has selected a method of seeking termination of Local 35's certificate which has heretofore been sanctioned by the Board 2 Therefore, having carefully considered the Employer's motion, and being satisfied that the circumstances related herein warrant the exercise of the Board's powers over its certificate as requested by the Employer, IT Is ORDERED, that the certificate issued by the Board on June 1, 1956, to International Chemical Workers Union, Local 35, AFL-CIO, as the exclusive bargaining representative of the Employer's em- ployees at its Lakeland, Florida, plant, be, and it hereby is rescinded. MEMBER RODGERS took no part in the consideration of the above Order Rescinding Certificate. a Telegraph Publishing Company, 102 NLRB 1178. Marston Corporation and International Union, United Auto- mobile, Aircraft & Agricultural Implement Workers of Amer- ica, AFL-CIO, Petitioner. Case No. 7-RC-3460. March 10, 1958 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 Iris H. Meyer, 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 an industrial processor engaged at its Detroit, Michigan, plant in chemically processing and in painting and pack- aging parts and equipment. From about November 12, 1956, when 1 As in our opinion the record and the briefs adequately set forth the facts and the positions of the parties, the motion of Metal Processors Union, Local 28, International Union of Doll and Toy Workers of the United States and Canada, AFL-CIO, hereinafter called the Intervenor , for oral argument, is hereby denied. For reasons set forth below, the motions of the Employer and the Intervenor to dismiss the petition on contract bar grounds are also denied. 120 NLRB No. 10. - MARSTON CORPORATION 77 it began operations, through March 31, 1957, a period of approxi- mately 41/2 months, the Employer made sales in Michigan totaling about $44,000 to 5 corporations, over each of which the Board would exercise jurisdiction on the basis of direct outflow from Michigan. On the basis of the above sales projected over a 1-year period, the Employer's indirect outflow will exceed $100,000 annually? We therefore find that the Employer is engaged in commerce within the meaning of the Act, and that it will effectuate the policies of the Act to assert jurisdiction in this case.3 2. The labor organizations involved claim to represent certain em- ployees of the Employer. 3. The Employer and the Intervenor contend, and the Petitioner denies, that a current collective-bargaining agreement between the Employer and the Intervenor, covering employees involved herein, constitutes a bar to this proceeding. On March 15, 1957, the Employer and the Intervenor executed a "Recognition Agreement," in which the Employer recognized the Intervenor as the exclusive bargaining representative of the former's employees. Although this agreement provided, among otherthings, for a union shop, set forth certain provisions relating to seniority, and had a wage schedule appended thereto, no contract term was specified and the parties agreed therein that, within 60 days of the signing of the agreement, they would negotiate another contract covering wages, working conditions, and all fringe benefits of the above employees. On March 22, 1957, the Petitioner sent a letter to the Employer by certified mail, in substance claiming to represent a majority of the Employer's employees and expressing the Petitioner's desire to begin bargaining negotiations; this letter was received at the ' plant on March 23, a Saturday. On the following Mon- day, March 25, 1957, at 2:30 or 3 p. m., the Employer and the In- tervenor entered into a complete collective-bargaining agreement, covering all the Employer's employees, with the usual exclusions, ef- fective from that date to and including April 1, 1960, and for 1 year thereafter in the absence of notice. This agreement encompassed not only the subjects covered by the recognition agreement,4 but also such additional subjects as hours of work, working conditions, reasons for discharge, grievance procedure, leaves of absence, vacations, and holidays. The Petitioner's claim did not come to the attention of the Employer's vice president in charge of labor relations until after the execution of the second agreement. On the next day, March 26, the Petitioner filed its petition for a production and maintenance unit. 2 Cf. Miller Container Corporation, 115 NLRB 509 'Jonesboro Grain Drying Coopev ative, 110 NLRB 481, 484; The T. H. Rogers Lumber Company, 117 NLRB 1732, 1733, 1735. * All these matters were treated somewhat differently in the two agreements ,7$ DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Intervenor asserts, in substance, that each agreement between the Employer and the Intervenor bars an election at this time. The Employer relies on the second agreement alone. As to the first agree- ment, the Board has held that agreements which are merely "tempo- rary and provisional in character" and which the parties contemplate ,superseding with a permanent agreement, cannot serve as a bar.' In the instant case, it is clear that the first agreement, which was designed to continue in,effect only until, within a limited period, the parties had negotiated a permanent contract, was merely temporary and provi- sional in character,; it therefore cannot serve as a bar to this proceeding. Nor:-can the second agreement serve as a bar, as the Employer received the Petitioner's letter claiming representation 2 days before the execution of that agreementand the Petitioner filed its petition within 10 days after its claim .7 As we have found that neither agreement may serve as a bar to this proceeding, we find, that 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 parties,generally agree that ,a production and maintenance ,unit, including shipping and receiving personnel, but excluding pro- fessional employees, guards, and supervisors as defined in the Act, is appropriate. However, the Petitioner, would exclude office clerical employees, and the Employer and the Intervenor would include them, on the ground that they were included in the overall units established in the agreements described above. As their unit placement is in issue, we,-hall exclude office clerical employees from the production and .maintenance unit, notwithstanding their previous inclusion therein by agreement of the parties.' We find that all production and maintenance employees at the Employer's plant at Detroit, Michigan, including shipping and re- ceiving personnel, but excluding office clerical employees, professional employees, guards, and supervisors as defined in the Act, constitute a Bridgeport Brass Company,-Aluminum Division , 110 NLRB 997. As the Petitioner's claim was addressed to the Employer, and not to any specific Individual , we reject the contention of the Employer and the Intervenor that this claim was not "received" Until after the execution of the second agreement , when it first came to the attention of the Employer 's vice president in charge of labor relations. Belle-Moe, Inc., 81 NLRB 6, footnote 3. Consequently , Snyder Engineering Corporation, 90 NLRB 783, and The Carborundum Company, 78 NLRB 91 , relied on by the Employer , are clearly distinguishable because in those cases the petitioners addressed their letters to specific individuals The fact that the Petitioner's claim was delivered on a Saturday, when the plant was not normally open, is immaterial under the circumstances of this case, as the claim was in any event received and available to the Employer in ample time before the agreement of March 25 was executed. 7 General Electric X-Ray Corporation, 67 NLRB 997. 8 Dura Steel Products Company, 109 NLRB 179 , 182 As we exclude office clerical employees for the reasons indicated , we find it unnecessary to consider whether they are also confidential employees. SAFEWAY TRAILS, INC. 79 -unit appropriate for the ,purposes of collective bargaining within the meaning of Section 9 (b) of the Act. 5. The Petitioner has filed charges against the Employer in Case No. 7-CA-1694, alleging, among other things, that the Employer, by ,executing the aforementioned contracts, violated Section 8 (a) (2) of the Act. The Petitioner nevertheless desires to proceed to an election at this time, and it appears that the alleged violation of Section 8 (a) '(2) is related at least in part to the unresolved question concerning the representation of the Employer's employees. Under these circum- -stances, we find that direction of an immediate election at this time, without requiring withdrawal of the Section 8 (a) (2) charges, will effectuate the policies of-the Act. Such direction is, however, without prejudice to, and any certification resulting therefrom shall be spe- cifically conditioned upon, any determination which may be made concerning the status of the Intervenor here in the pending Case No. 7--CA-1694.9 [Text of Direction of Election omitted from publication.] ME3MERS'RODGERS and BEAN took no part in the consideration of the above Decision and Direction of Election. ' 6 See New York chipping Association, etc., 107 NLRB 364, 376; Michigan Bell Telephone Company, 63 NLRB 941, 944, and cases cited therein. -Safeway Trails, Inc. and Division 1112, Amalgamated Asso- ciation of Street, Electric Railway and Motor Coach Em- ployees of America, AFL-CIO, Petitioner. Case No. 4RC-3490. March 10, 1958 DECISION AND DIRECTION OF ELECTIONS Upon a petition duly filed under Section 9 (c) of the National Labor Relations Act, a hearing was held before Alan Zurlnick, hearing officer. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed. Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its powers in connection with this case to a three-member panel [Chairman Leedom and Members Jenkins and Fanning]. 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 em- ployees of the Employer. Lodge No. 1023, Brotherhood of Railroad Trainmen, hereinafter referred to as BRT, intervened on the basis of a contractual interest in the Employer's drivers. Lodge 447, Dis- 120 NLRB No. 13.