Southern Manufacturing Co.

784 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Southern Manufacturing Company, Petitioner and International Association of Machinists, AFL-CIO. Case No. 26-I?M-147. September 03, 1963 DECISION AND DIRECTION OF ELECTION Upon a petition duly filed, a hearing was held before J. Edward Wise, a Hearing Officer of the National Labor Relations Board. 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 National Labor Relations Act. 2. The labor organization involved claims to represent certain em- ployees of the Employer. 3. As a result of a Board-conducted election, the Union, on Octo- ber 4, 1961, was certified as the collective-bargaining representative for production and maintenance employees at the Employer's Walnut Ridge, Arkansas, plant. Bargaining for a contract began October 6, 1961, and 13 bargaining sessions were held prior to July 17, 1962, at which time the Employer informed the Union that it was ceasing operations for economic reasons the following week. Thereafter the plant closed down. In September 1962 the Union filed charges, which were amended November 6, 1962, alleging that the Employer had failed to bargain in that it had decided July 12, 1962, to close its plant and did not notify the Union of this until July 17. On October 22, 1962, the Employer notified the Union that it was going to reopen the plant and invited further negotiations. Operations actually recom- menced the first week in November. On November 7, 1962, a settle- ment agreement was signed by the parties and approved by the Regional Director. Thereafter, bargaining sessions were held on November 30, 1962, and February 19, and April 16, 1963. On March 11, 1963, an RD petition was filed. It was dismissed by the Regional Director on the ground that it was untimely filed. No appeal was taken from the dismissal. On April 9, 1963, the instant petition was filed and was subsequently dismissed by the Regional Di- rector on the same ground as relied upon by him in his dismissal of the earlier petition. On appeal, his dismissal was reversed, and the petition was reinstated. In Mar-Jac Poultry the Board indicated that on the facts of that case and in future cases revealing similar inequities, it would grant 1 The Hearing Officer referred to the Board the Union 's motions to dismiss the petition on the grounds that (1) the Board's policy set forth in Mar-Jac Poultry Company, Inc, 136 NLRB 785, is applicable in the facts and circumstances herein; and ( 2) the instant case is controlled by Case No. 26-RD-101, a decertification petition involving the same unit, which was dismissed by the Regional Director on the basis of the Mar-Jac policy. For the reasons hereinafter discussed these motions are hereby denied. 144 NLRB No. 73. FLUSHING MANUFACTURING SERVICE 785 the union a period of at least 1 year of actual bargaining from the date of a settlement agreement. Contrary to the Union we do not believe that the equities of the present case warrant the application of the policy enunciated in Mar- Jac Poultry. Where as here, there was over 9 months prior to the plant shutdown and over 5 months subsequent to the settlement agree- ment, a total of over 14 months, during which the Union had oppor- tunity to negotiate a contract, the purpose of the Board's certification year rule has been fulfilled. Upon consideration of all the circum- stances of this case, including the facts that the lapse in negotiations was occasioned solely by the Employer's cessation of operations for a period of about 4 months, that the settlement of unfair labor practices related to the Employer's refusal to bargain as to such cessation, and that the Union had the benefit of more than a year under its certifica- tion in which to negotiate, we are persuaded that the Union had a reasonable period of time subsequent to the settlement agreement in which to conclude a contract with the Employer. Accordingly, as no impediment exists to an immediate election and the Union is claiming to represent the employees in the certified unit, we find that a question affecting commerce exists concerning the repre- sentation of certain employees of the Employer, within the meaning of Section 9 (c) (1) and Section 2(6) and (7) of the Act. 4. We find, in accordance with the stipulation of the parties at the hearing, that the following employees constitute a unit appropriate for the purposes of collective bargaining within the meaning of Sec- tion 9 (b) of the Act : All production and maintenance employees, including leadmen, em- ployed by the Employer at its plant near Walnut Ridge, Arkansas, but excluding all other employees, including office clerical employees, chief inspector and production control employees, professional em- ployees, guards, watchmen, and supervisors as defined in the Act. [Text of Direction of Election omitted from publication.] MEMBER JENKINS took no part in the consideration of the above De- cision and Direction of Election. Flushing Manufacturing Service and Edsel O. Hartz. Case No. 7-CA-4086. September 25, 1963 DECISION AND ORDER On June 26, 1963, Trial Examiner Sidney Sherman issued his In- termediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor 144 NLRB No. 76.