H. L. Klion, Inc.

656 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of the Company, that the new presses replace letterpresses which are operated by pressmen, that the work if assigned to pressmen will not cost lithographers any jobs, and that the current bargaining contract between the Pressmen and the Company covers operators of the new press. We shall, accordingly, determine the existing jurisdictional dispute by awarding the disputed work to pressmen represented by the Pressmen rather than to lithographers represented by the Lithog- raphers. In making this determination, we are assigning the dis- puted work to the employees of the Company who are represented by the Pressmen but not to that union or its members. DETERMINATION OF DISPUTE Upon the basis of the foregoing findings .and the entire record in the case, the Board makes the following determination of dispute pursuant to Section 10 (k) of the Act. (1) Pressmen currently represented by, Dayton Printing Pressmen and Assistants' Union, Local 54, International Printing Pressmen and Assistants' Union of North America, AFL-CIO, are entitled'to operate the Company's transfer letterpresses at its plant in Dayton, Ohio. (2) Amalgamated Lithographers of America, Local 33, is not en- titled, by means proscribed by Section 8 (b) (4)'(D) of the Act, to force or require The Standard Register Company to assign the above work to lithographers who are currently represented by, it. (3) Within 10 days from the date of-this Decision and Determina- tion of Dispute, Amalgamated Lithographers of America, Local 33, shall notify the Regional Director for Region 9, in writing, whether or not it will refrain from forcing or requiring the Company, by means proscribed by Section 8(b) (4)'(D), to assign the work in dis- pute to lithographers rather than to pressmen. H. L. Klion, Inc. and Local 945, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of Amer- iea, Petitioner. Case No. 22-RC-2466.. August p28, 1964 DECISION,AND ORDER Upon a petition duly filed under Section 9 (c) of the National Labor Relations Act, 'a hearing' was held before Hearing Officer Leonard Bass. The Hearing Officer's rulings made at the hearing are free from prejudicial error 'and are hereby affirmed. 148 NLRB No. 67. H. L. KLION, INC. 657 Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its powers in connection with this proceeding to a three- member panel [Chairman McCulloch and Members Leedom and Jenkins]. 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 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 filed its petition on April 10, 1964, seeking to rep- resent all warehousemen employed by the Employer at its East Pater- son, New Jersey, warehouse, excluding office clerical employees, sales- men, guards, and supervisors as defined in the Act. Alternatively, the Petitioner would accept any unit found appropriate by the Board including a unit of warehousemen and store and office employees em- ployed in the Employer's northern New Jersey district. The Peti- tioner also contends that the contracts of neither Local 21 nor Local 888 constitute a bar to an election at this time asserting, inter alia, that Local 888 has abandoned all interest in the employees involved; that Local 21's contract was a premature extension of an earlier contract and was not properly executed to cover the great bulk of the employees involved herein; and finally, that Local 21's contract contains an il- legal union-security clause. Local 888 contends that its contract with the Employer bars an elec- tion at this time, but also stated that in the event an election is di- rected, it does not wish to appear on the ballot. Local 21 contends that its agreement with the Employer constitutes a bar to an election and that its premature extension does not remove it as a bar. It further contends the union-security clause in its contract is not unlawful. Prior to January 1964, the Employer carried on the business of re- tail furniture stores in both New York and New Jersey, and in the course of carrying on this business operated stores, offices, and ware- houses at various locations in the two States. Local 888 and the Em-, ployer were parties to a 3-year agreement expiring on April 1, 1966, covering all employees of the Employer in 11 New York counties in and around New York City. This contract by its terms applied to all "stores, warehouses and offices" located in the 11-county area. During ' Department Store Employees' Union Local 21, Retail Clerks International Association, AFL-CIO, and Local 888, Retail Clerks International Association, AFL-CIO, were per- mitted to intervene at the hearing on the basis of current contracts with the Employer. 760-577-65-vol. 148-43 658 DECISIONS OF NATIONAL LABOR RELATIONS BOARD this same period, Local 21 and the Employer were parties to a 3-year agreement extending from April 1, 1961, to April 1, 1964, and covering stores, offices, and warehouses in northern New Jersey. However, on May 30, 1963, Local 21 and the Employer executed a new contract which expires April 1, 1967. In January 1964, the Employer moved its warehouse and central office from Westbury, Long Island, to East Paterson, New Jersey. At the time, and in order to protect the rights of its members, Local 888 obtained a modification of the contract to extend its coverage to any store, warehouse, or office operated by the Employer within a radius of 15 miles west of the Hudson River. Approximately 25 of the 40 warehouse employees transferred from Westbury to East Paterson, while only 3 or 4 of the approximately 100 office employees followed the move. Since then, the Employer has increased its warehouse staff to approximately 75 employees and the office staff to approxi- mately 175. Shortly after the.move was accomplished, Locals 21 and 888 agreed that Local 21 should administer and service the employees of the East Paterson 'warehouse and office. Local 21 `thereafter requested rec- ognition for 'these employees and the Employer refused, taking the position that-it was unable to determine which of the two unions the employees desired to represent them. Local ' 21 'thereupon solicited membership; cards from the 'employees both 'in the warehouse.and the office, securing cards from 83 of the then approximately 113 em- ployees located at the East Paterson facility. Upon presentation of these cards, the Employer checked them against the payroll records and, being satisfied as to their validity, granted recognition to Local 21 and agreed that the May 1963 contract would be made applicable to the East Paterson facility. Following the granting of recognition, Local 21 and the Employer negotiated various modifications in the Local 21 agreement in order to make uniform the terms and conditions of employment of the two groups of employees. Thus, Local 21's contract was modified to in- clude a wage classification for "hi-lo operators," a night-work differ- ential, and a further modification of the wage rates for warehouse and, office employees to reflect the higher wage rates previously estab- lished under Local 888's contract. Some of these modifications were incorporated into a new "Schedule A" which was substituted for the original "Schedule A" attached to the May 1963 contract. Later modifications in the contract dealing with specific problems at the Paterson warehouse were set forth in a letter of understanding sent by the president of Local 21 to the Employer's executive vice president in- March 1964. The rest of _Local 21's contract remained unchanged. H. L. KLIONN, INC. 659' From these facts it is clear that following the transfer of the ware- house and office functions from Westbury, New York, to East Pater- son, New Jersey, Local 888, whose contract then covered the employees employed at these facilities, abandoned its contract rights to represent the employees involved herein. In these circumstances, we find that Local 888's contract does not constitute a bar to the petition herein. Following Local 888's abandonment of its contract rights, Local 21 sought and received recognition from the Employer. The Petitioner argues that there is nothing in writing that would constitute a con- tract between Local 21 and the Employer and that "Schedule A" is not a signed agreement and does not fall within the terms of the Board's decision in Appalachian Shale 2 which held that to be a bar a. contract must be signed and contain substantial terms and conditions of employment. The record shows that in addition to the substitution of the new "Schedule A," and the exchange of the March letter of understanding, the Employer and Local 21 agreed to apply their exist- ing written contract to the new facility. The language of Local 21's May 1963 contract encompassed the new warehouse and.office facility within its terms. Without relying on the recognition clause of the contract, however, the Union, at the request of the Employer, went. out and secured membership cards from the employees on the premises and exhibited to the Employer its proof of majority status on Jan-' uary 18, 1964. The Employer then 'recognized the Union as bargain- ing agent for these employees and agreed with Local 21 to extend the May 1963 contract to the new facility?, The parties later mutually agreed to modify the terms of the contract to reflect the higher bene- fits brought over into Local 21's area by.the transfers. The new bene- fits were negotiated and put into effect, and the employees were rep- resented by Local 21 in several grievances with the Employer prior to the filing of the petition herein. In these circumstances we'conclude that the agreement to apply the existing written contract would op- erate as a bar absent any merit to Petitioner's remaining contentions 4 Petitioner contends that the May 1963 contract is not a bar because it was prematurely extended and because-so it claims-the contract was executed at a time when there was less than 30 percent of the employee complement at work, and, moreover, contained an illegal union-security clause. We reject these contentions as without merit. Petitioner did not file for an election until April 10, 1964, 10 days after the original contract would have expired absent the execution of the 2 Appalachian Shale Products Co., 121 NLRB 1160 , 1164. 1 3 of Miratile Manufacturing Company, Inc., 124 NLRB 48, in which the Employer and Intervenor were asserting an accretion doctrine to bring a new facility within the terms of an existing contract. 4 See Grainger Brothers Co., 146 NLRB 609, where the Board under dissimilar facts held that an expressed or written adoption of a contract was not necessary for that con- tract to be a bar. 660 DECISIONS OF NATIONAL LABOR RELATIONS BOARD May 1963 contract. The primary purpose of the premature-extension rule is to protect petitioners in general from being faced with pre- maturely executed contracts at a time when the Petitioner would nor- mally be permitted to file a petition. However, the Board's rule is not an absolute ban on premature extensions, but only subjects such extensions to the condition that if a petition is filed during the open period calculated from the expiration date of the old contract, the pre- mature extension will not be a bar.-' As to the claim that less than 30 percent of the employee complement was employed at the time the contract was signed, we do not accept the Petitioner's contention that the actual date of the signing of the contract (May 1963) is the determinative date since it is clear that on January 18, 1964, when the parties agreed to apply the contract to the new facility, more than 30 percent of the employees were then em- ployed in more than 50 percent of the job classifications.6 Finally, we reject Petitioner's claim that the contract clause in "Schedule B" stating that part-time employees will receive a pay in- crease "After 3 Months Service When Join Union" constitutes an un- lawful union-security clause. We note that article 1 of the contract lawfully requires part-time employees to become and remain members of the Union after 3 months' service. As the related clause on wage increases in "Schedule B," while somewhat ambiguous, is not clearly unlawful when read in context with article 1, we find it does not remove the contract as a bar.7 We conclude, therefore, that Local 21's May 1963 contract became effective for contract-bar purposes on April 1, 1964. Accordingly, as the petition was filed after April 1, 1964, but more than 90 days prior to April 1, 1967, the terminal date of the May 1963 contract, we find that the contract is a bar to the present petition and we shall order the petition dismissed. [The Board dismissed the petition.] Deluxe Metal Furniture Company, 121 NLRB 995, 1001. General Extrusion Company, Inc., 121 NLRB 1165. 7 Cf. Paragon Products Corporation, 134 NLRB 662. Safeway Stores, Incorporated and Levina McGinnis. Case No. 27-CA-1484. August 31, 1964 DECISION AND ORDER On June 3, 1964, Trial Examiner Herman Marx issued his Decision in the above-entitled case, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recom- mending that it cease and desist therefrom and take certain affirmative 148 NLRB No. 76.