Lion Brand, Inc.

196' DECISIONS OF' NATIONAL LABOR RELATIONS BOARD 4. The evidence adduced herein establishes that International- Woodworkers of America, AFL-CIO, through its agent, William J'. Stringer, violated Section 8(b) (1) (A) of the Act. 5. The incidents- involved herein are, not so convictive' of' a. fixed determination on, the part of Respondent to, deprive, employees of rights, secured, by the Act as to justify a belief that the Act's preventive purposes, will or may be thwarted' unless an order to, cease and, desist from such-acts be recommended or issued. [Recommendations omitted from'publication.], Lion Brand; Inc. and International' Union of Electrical, Radio,, and Machine, Workers,, District. 3, AFL-CIO:' Case No. 3-RC- 2344. April 21,,1961 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: John H. Galvin, hearing officer. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed.2 Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, the Board hasp delegated its powers in connection with this case to a three-member panel [Members Rodgers, Leedom, and Fanning]. Upon the entire record, the Board finds : 1. Recently, upon a stipulated settlement, the Board asserted juris- diction over the Employer and entered a Decision and Order dated' June 13, 1960, in Case No. 2-CA-6768, L. & B. Products Corp., Lion Brand, Inc. (not published in NLRB volumes). In the absence of any change in the Employer's operation since that time, we find that the Employer is engaged in commerce within the meaning of the Acts 2. The labor organizations named below claim to represent certain employees of the Employer.4 ' The name of the Petitioner appears as corrected at the hearing. 2 The Intervenor and counsel for L. & B. Products contended at the hearing that the hearing officer erred in granting the motion to amend the petition to reflect a change in the name of the Employer from L. & B. Products to Lion Brand, Inc , for the reason that Lion Brand, Inc, is a different corporation which did not receive notice of these pro- ceedings The face of the petition clearly indicates in all other respects that Lion Brand, Inc., Is the Employer herein . For example, as described in the petition , the employees involved and the plant identified could only be those of Lion Brand , Inc., at the Stottville location. The record shows that Joseph . Zelinger, the general manager of Lion Brand, Inc., at its Stottville plant, received a copy of the petition and notice of these representa- tion proceedings . Moreover, there appears to be a close relationship of management and business interests between the two corporations . After the amendment to the petition, counsel who had appeared for L. & B. Products participated in the proceeding and made contentions with respect to the interests of Lion Brand, Inc . Under these circumstances, Lion Brand, Inc., cannot properly plead surprise , and the amendment of the petition with respect to the Employer's name was, as we find, merely the correction of a formal defect in the petition and was not prejudicial to the Employer. Accordingly, the motion to dis- miss the petition is denied. 9 Avco Manufacturing Corporation, Appliance and Electronics Division, 107 NLRB 295. ' Stottville Independent Union , Inc., intervened on a basis of its contractual interest in the employees. 131 NLRB No. 32. LION BRAND, INC. 197 3. The Intervenor contends that the petition filed on July 27, 1959, was untimely with respect to its contract with the Employer and that the contract is a bar. The following are relevant particulars of the first two paragraphs of the Intervenor's 5-year contract: Agreement, made this 2nd day of July, 1957, between LION BRAND, INC., a New York corporation with its principal place of business in Stottville, New York, hereinafter called employer, and, STOTTVILLE INDEPENDENT UNION, an unincorpo- rated association of employees of Lion Brand, Inc., hereinafter called Union; wherein, in consideration of mutual covenants, it is agreed, Section 1: This contract shall take effect immediately upon its execution by the contracting parties and shall terminate on June 30,1962....... [Emphasis supplied.] Testimony was offered by Leonard Cascioli, chairman of the Inter- venor, to establish that the contract was not actually executed by the contracting parties until about the middle of August 1957. The In- tervenor contends that under the terms of section 1 of the contract, supra, i.e., that the contract "shall take effect immediately upon its execution," the effective date of the contract was approximately Au- gust 15, 1957. Accordingly, Intervenor asserts that the contract is a bar for its 2-year reasonable term, or until approximately August 15, 1959, and that since the petition was filed on July 27, 1959, it was untimely as having been filed during the 60-day insulated period im- mediately preceding the expiration of the first 2 years of the Inter- venor's contract .5 However, the last paragraph of the Intervenor's contract states: IN WITNESS WHEREOF, the parties have signed this agreement in the city of Hudson, New York, on the date first above written. [Emphasis supplied.] The date "first above written," appearing in the very first para- graph of the contract quoted above, is July 2, 1957. Therefore, the contract clearly indicates that it was executed, and thereby became effective, on July 2, 1957. Thus, the filing date of the petition, on July 27, 1959, was more than 2 years after the execution and effective date of the contract. The parol evidence of Cascioli as to date of execution cannot, in circumstances such as these, serve to vary the express terms of the contract s Under well-established contract-bar policies, we find that the pe- tition was timely since it was filed more than 2 years after the effec- tive date of the Intervenor's 5-year contract.' Accordingly, we find See Pacific Coast Association of Pulp and Paper Manufacturers , 121 NLRB 990. e See Benyamin Franklin Paint & Varnish Co., 124 NLRB 54. See footnote 5, supra 198 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that the contract is not a bar, and 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. We find that the following employees constitute a unit appro- priate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act: All production and maintenance employees, excluding all office clerical employees, guards, professional employees, and supervisors as defined in the Act 8 [Text of Direction of Election omitted from publication.] 8 The unit appears as amended at the hearing. Cooks, Waiters and Waitresses Union, Local 327; and Peoria Local Joint Executive Board, Hotel and Restaurant Em- ployees International Union ; and Anna C. Rimington and Greater Peoria Restaurant Association . Case No. 13-CB-840-2.. April 24, 1961 DECISION AND ORDER On August 2, 1960, Trial Examiner Thomas F. Maher issued his Intermediate Report in this case, finding that the Respondent had violated Section 8(b) (1) (A) of the Act and recommending that they cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto. The Trial Examiner also recommended that the separate complaint alleg- ing violations of Section 8 (b) (3) of the Act be dismissed. Thereafter the Charging Party and the General Counsel filed exceptions to the Intermediate Report, and supporting briefs. 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, Leedom, and Fanning]. The Board has reviewed the rulings of the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rul- ings are hereby affirmed. The Board has considered the Intermediate Report, the exceptions and briefs, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner to the extent consistent with the decision set forth below. The complaint in this case alleges that the Union unlawfully refused to bargain with the Association by executing individual contracts with two restaurants, Vonachen's Junction and the Steak House, on June 6 and January 18, 1960, respectively. A preliminary question 131 NLRB No. 33.