Foremost Appliance Corp.

FOREMOST APPLIANCE CORP. 1033 jurisdiction over the operations of Hobbs with respect to labor dis- putes cognizable under Sections 8, 9, or 10 of the Act. The Board expresses no opinion as to whether it would take jurisdiction over or render a decision on the merits of the controversy which is the subject of the State court action. Foremost Appliance Corp. and Seafarers International Union of North America, Atlantic and Gulf District, Marine Allied Workers Division, AFL-CIO, Petitioner. Case No. 2-RC-10446. August 26, 1960 DECISION AND ORDER Upon a petition duly filed under Section 9(c) of the National Labor Relations Act, a hearing was held before Arthur E. Neubauer, 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 the production and maintenance employees of the Employer. The latter and the Intervenor contend that a current contract between them is a bar to this petition. The Employer and the Intervenor executed a contract on April 28, 1958, to expire April 18, 1960. As of April 28, 1958, the Employer was located on Atlantic Avenue, Brooklyn, New York, and employed about seven production employees.2 In the latter part of February or March 1959, the Employer opened a new location on Kent Avenue, Brooklyn, and transferred to this plant from Atlantic Avenue, 20 of about 100 employees, without an accompanying change in the character of the jobs and functions of the employees in the contract unit. On May 26, 1959, the Employer and the Intervenor executed an entirely new contract to expire May 25, 1962, covering the Atlantic Avenue and Kent Avenue locations as well as a future contemplated location at Butler Street. It appears that as of the date of the new contract, the Employer had a total of 50 to 60 employees at both I Amalgamated Local Union 355 was permitted to intervene , without objection, on the basis of a contractual interest. a Based on the Employer's testimony. 128 NLRB No. 118. 1034 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Atlantic Avenue and Kent Avenue locations. In July 1959, the Employer transferred all its employees from the plants at Atlantic Avenue and Kent Avenue to the new location at Butler Street, again without accompanying change in the jobs and the functions of these employees. The Atlantic Avenue and Kent Avenue plants were then closed down. The petition herein was filed on January 7, 1960. The Petitioner contends that the second contract was a premature extension of the prior contract, and therefore no bar. The Intervenor and the Em- ployer contend that the May 26, 1959, contract was executed at a time when the prior existing contract would not have been a bar under the Board's rules because of an expanded unit, that the new contract was therefore effective as a bar for its reasonable term, and that the peti- tion filed herein was untimely. We find merit in this contention. In Deluxe Metal Furniture Company,' the Board issued its contract- bar rules governing prematurely extended contracts in which it pro- vided in pertinent part, that : a contract will continue to be considered prematurely ex- tended if during its term the contracting parties execute an amendment thereto or a new contract which contains a later terminal date than that of the existing contract, except when executed . . . at a time when the existing contract would not have barred an election because of other contract-bar rules. [Emphasis supplied.] At the same time, in General Extrusion Co., Inc., et a1.,4 the Board announced the rule that a contract will not bar an election if executed prior to a substantial increase in personnel , defined in the following terms : a contract will bar an election only if at least 30 percent of the complement employed at the time of the hearing had been employed at the time the contract was executed, and 50 percent of the job classifications in existence at the time of the hearing were in existence at the time the contract was executed. It is clear from the quoted passages above that the Board intended to permit contracting parties to correct, by appropriately rewriting, an existing contract defective as a bar because of expanding unit or other contract-bar rules, and that such a corrected contract would operate as a bar for its reasonable term.5 Here, the record shows that about seven unit employees were on the payroll when the April 28, 1958, contract was executed, and that at the time of the new contract on May 26, 1959, the personnel complement had substantially increased 8121 NLRB 995, 1001, 1002. 4121 NLRB 1105, 1167. 5 See Wood Conversion Company, 125 NLRB 785. BORG-WARNER CONTROLS, BORG-WARNER CORPORATION 1035 to 50 to 60 employee's.6 Thus, under the General Extrusion formula, less than 30 percent of the complement was employed in the unit when the new contract in question was executed? While General Extrusion speaks in terms of the percentage of expansion as of "the time of the hearing," it is only the natural and reasonable construction of that rule to apply the expanding unit formula in the present situation as of the time the new contract was executed.' As of such time, it is found that the original, April 28, 1958, contract would not have operated as a bar if a petition were then filed for a representation election. Ac- cordingly, we conclude that the new contract of May 26, 1959, is not subject to the premature extension rules of the Deluxe case, and that it stands as a bar to the petition filed herein. We shall therefore dismiss the petition. [The Board dismissed the petition.] MEMBER RoDGERS took no part in the consideration of the above De- cision and Order. 6 The evidence shows that from February to July 1959 , employment was subject to wide fluctuations, but the average production and maintenance complement during this period was 69 employees 7 Although it does appear that at least truckdrivers were added , the record does not clearly show the extent of change in job classifications . A finding as to this factor is unnecessary in view of the result reached herein. "In March and April 1959, representation petitions in Cases Nos . 2-RC-9839 and 2-RC-9892 had been filed by two unions , not here involved , which they withdrew for unexplained reasons before the hearing scheduled in those cases on May 12, 1959. Counsel for the Intervenor testified that he was advised by the Board agent in connec- tion with those cases that the April 28, 1958, contract might not be a bar because of the expanded unit . As a consequence after the withdrawal of those petitions , the Employer and the Intervenor executed the new contract of May 26, 1959 , inter also, to correct the deficiency. Borg-Warner Controls, Borg-Warner Corporation 1 and Inter- national Union, United Automobile, Aircraft and Agricultural Implement Workers of America (UAW), AFL-CIO, and its Local 509. Case No. 21-CA-3529. August 926, 1960 DECISION AND ORDER STATEMENT OF THE CASE This proceeding was instituted by the filing of charges on April 13, 1959, alleging violations of Section 8(a) (1), (3), and (5 ) of the Act. 'Following the close of the hearing , the Respondent stated in its brief in support of exceptions to the Intermediate Report that Borg-Warner Controls , a division of Re- spondent , now operates the plants and facilities formerly operated by BJ Electronics, which was a part of Byron Jackson Division of the Respondent and that BJ Electronics is no longer in existence . These plants and facilities are those at Santa Ana , California, involved in the instant proceeding . We hereby order the record reopened for the purpose of incorporating therein and do order incorporated therein a stipulation of the parties, 128 NLRB No. 119.