American Can Co.

438 DECISIONS OF NATIONAL LABOR RELATIONS BOARD American Can Company and Independent Clerical and Office Workers Union of Houston, Petitioner. Case No. 39-RC-1315. Marcia 26, 1959 DECISION AND ORDER Upon a petition duly filed under Section 9 (c) of the National Labor Relations Act, a hearing was held before Clifford W. Potter, 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 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, for the following reasons: The Petitioner seeks to represent a unit of the Employer's office clerical employees. Both the Employer and the Intervenor, Office Employees International Union, Local 129, AFL-CIO, contend that their current collective-bargaining agreement is a bar to this pro- ceeding. On September 8, 1958, the Board issued a Decision and Order 1 dismissing a petition involving the parties herein. In that case, the Petitioner sought to represent the same unit it now seeks. The Em- ployer and the Intervenor contended that their existing collective- bargaining agreement, effective from October 8, 1956, through No- vember 30, 1959, was a bar to the petition. The Petitioner con- tended that the contract was not a bar on the grounds that a schism had occurred within the ranks of the Intervenor. The Board found that contracts of 3 years' duration are common in the industry and that no schism had occurred; it therefore held the contract to be a bar and dismissed the petition. On September 23, 1958, the Board issued two lead cases in the field of contract bar. In Pacific Coast Association of Pulp and Paper lllanufacturers.2 it was held that henceforth any contract having a fixed term in excess of 2 years would be treated as a bar only during its first 2 years, notwithstanding the fact that a sub- stantial part of the industry may be covered by contracts for a longer term. And in Deluxe Metal Furniture Comnpany,3 the Board held that, to be timely in relation to a contract of more than 2 years' 1 Case No. 39-RC-1271 , unpublished. 2121 NLRB 990. 8 121 NLRB 995. 123 NLRB No. 58. AMERICAN CAN COMPANY 439 duration, a petition must be filed from 150 to 60 days before the end of the first 2 years of the contract term or after the expiration of this 2-year period. The Petitioner contends that, under the Board's new contract-bar rules, its petition has been timely filed, since the first 2 years of the term of the collective-bargaining agreement between the Employer and the Intervenor expired on or about October 8, 1958, some 12 days before the instant petition was filed. The employer and the Inter- venor, however, contend that the prior decision of the Board is binding on all the parties, that the Board has placed its "stamp of approval" on the existing bargaining relationship, and, in the interests of stability and fairness, the instant petition should be dis- missed. For the reasons stated hereinafter, we find merit in the con- tentions of the Employer and the Intervenor. It is a rule of statutory construction that amended provisions of a statute which are intended to be applied prospectively will not affect a proceeding which has been entirely closed before the change be- came effective.4 Although the present case does not involve a question of statutory interpretation, the principle is the same insofar as it is sought to apply a newly announced contract-bar rule retroactively to a case that has already been closed. In dismissing this petition, we are merely adhering to our prior decision which settled,. as between the parties, the issue of whether, and for how long, the instant agreement would bar another petition. As the contract had been previously determined to be a bar for 3 years, and as this petition was filed at the beginning of the third year, we shall dismiss the instant petition.' [The Board dismissed the petition.] CHAIRMAN LEEDOM and MEMBER FANNING, dissenting : When the Board, after much deliberation , changed its contract-bar rules, it "abandoned the `substantial part of the industry ' test for long-term contracts by adopting a uniform period of 2 years as the measure of the reasonable period during which a contract will bar a representation proceeding." 6 It was the Board's intention to set forth general rules in all cases for all industries , to be applied in the lead ' See 1 Sutherland, " Statutory Construction ," 438 (3d ed., 1943 ) ; Dunlap v. United States, 43 F. 2d 999 ( D.C. Idaho, N.D. 1930), appeal dismissed per curiam 45 F. 2d 1021 (9th Cir., 1930). 5In a representation case previously dismissed for lack of jurisdiction , the Board enter- tained and granted a motion for reconsideration and vacated its prior order where the jurisdictional rules had been amended following the original dismissal . Skyview Trans- portation Co., 92 NLRB 1664. In that case , however, the Board was faced with the alternative of either vacating its prior order or permanently barring the petitioner from filing a petition seeking to represent that employer 's employees . No such radical alterna- tive is presented in the instant case because, with the passage of time, the contract will cease to be a bar. ' Pacific Coast Association of Pulp and Paper Manufacturers, supra. 440 DECISIONS OF NATIONAL LABOR RELATIONS BOARD cases and thereafter. The import of the majority's decision, how- ever, is to perpetuate a discarded rule in certain cases which, it so happens, were decided prior to the issuance of the new contract-bar rules. The Petitioner is thus placed in a worse position than it would have occupied had it not filed the previous petition which was dismissed.' Indeed, its instant petition is treated by the majority as a request for reconsideration of the earlier decision. With this, we cannot agree. One of the principal objectives of the contract- bar policy is to provide employees with the opportunity to select representatives at reasonable and predictable intervals. We have now determined that this "reasonable and predictable" period should be no longer than 2 years. Yet the employees here involved will be denied the opportunity of selection for an extra year. Since neither the Act nor the Board's rules place any limit on the number of petitions that may be filed concerning the representation of a unit of employees," we would entertain the instant petition in the light of the Board's revised contract-bar rules. As the contract was filed in the third year of the contract's duration, we would direct an election immediately." T See, e .g., East Tennessee Packing Company, 122 NLRB 204 ; The Steck Company, 122 NLRB 12. In both these cases, the revised contract-bar rules were applied to petitions which were pending at the time that the Board announced its new contract-bar rules. 8 Thalheimer Brothers, Incorporated, 93 NLRB 726, footnote 1. The only restriction appears in Section 9 ( c) (3) of the Act, which limits the number of elections which may be held within a 12-month period. e Deluxe Metal Furniture Company, supra. Lakeview Mining Company and United Steelworkers of America, AFL-CIO, Petitioner. Case No. 36-RC-1375. March 26,1959 SUPPLEMENTAL DECISION, ORDER, AND DIRECTION OF SECOND ELECTION The Board 1 issued a Decision and Direction of Election herein on November 28, 1958,2 in a unit of the Employer's mine employees. Contrary to a stipulation of the parties, the Board excluded mill em- ployees from the unit because the Employer had no mill employees at the time of the hearing. Thereafter, the Employer filed a motion to amend, concurred in by the Intervenor and opposed by the Peti- tioner, requesting inclusion of mill employees in the unit as the mill had commenced operations on November 29. By telegraphic order, dated December 12, 1958, the Board granted the Employer's motion. 1 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 [Members Rodgers, Bean, and Fanning]. 2 Unpublished. 123 NLRB No. 57.