Modern Plastics Corp.

716 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Modern Plastics Corporation and District 39, Inter- national Association of Machinists and Aerospace Workers, AFL-CIO, Petitioner. Case 7-RC-6342 February 6, 1968 DECISION AND DIRECTION OF ELECTION By CHAIRMAN MCCULLOCH AND MEMBERS FANNING AND ZAGORIA Upon a petition duly filed under Section 9(c) of the National Labor Relations Act, as amended, a hearing was held before Hearing Officer L. W. Tucker. The Employer made a "special ap- pearance" at the hearing and filed a brief. Pursuant to the provisions of Section 3(b) of the Act, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel. The Board has reviewed the Hearing Officer's rulings made at the hearing and finds they are free from prejudicial error. They 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 t involved claim to represent certain employees of the Employer. 3. The Petitioner requests an election in a production and maintenance unit. The Employer contends, inter alia, that no question concerning representation exists. The Intervenor has represented the Employer's employees since 1940. In 1958 it joined with the Employer in a collective-bargaining agreement for "a period from May 1, 1958, to April 1, 1959, and [continuing] for additional one year periods unless cancelled in writing by one party to the other at least 30 days before May 1st of any year." The con- tract also provided that the subject of wages could be opened at any time by either party. Prior to May 1, 1964, no notice of either cancellation or modifi- cation was given by either party. However, on May 20, 1964, the Intervenor requested the Employer to renegotiate wages, vacations, and insurance coverage. During the course of these negotiations, on June 16, 1964, the Petitioner filed the instant petition, and a hearing was scheduled thereon. On July 14, 1964, the Regional Director informed the parties of his determination to dismiss the petition on the basis of a contract bar, and canceled a hearing scheduled for July 15. On July 17, 1964, the Peti- tioner filed an unfair labor practice charge in Case 7-CA-4789, alleging that the Employer had dominated and assisted the Intervenor in violation of Section 8(a)(2) and (1) of the Act. On June 26, 1964, the negotiations between the Employer and the Intervenor culminated in the execution of writ- ten modifications of their contract; no change was made in 'the termination or automatic renewal provi- sion. Thereafter, the Regional Director notified the parties by a letter dated July 31, 1964, that he would take no action to carry out his proposed dismissal of the petition until such time as an in- vestigation of the unfair labor practice charges had been completed.2 Thereafter, on November 23, 1965, the Board is- sued its Decision and Order in Case 7-CA-4789,3 finding that the Employer interfered with and dominated the Intervenor in violation of Section 8(a)(2) and (1), and ordering that the Intervenor be disestablished. However, on June 22, 1967, the Court of Appeals for the Sixth Circuit set aside the Board's order,4 and, on September 13, 1967, Case 7-CA-4789 was closed. Subsequently, on October 27, 1967, pursuant to an order issued by the Re- gional Director, a hearing was held on the instant petition, and thereafter this matter was transferred to the National Labor Relations Board. Meanwhile, in the spring of 1965 the Employer and the Intervenor agreed to written modifications of their contract, including a 2-year extension until April 1, 1967, with automatic renewal for 1 year if notice of cancellation was not received at least 30 days prior to May 1, 1967. On March 20, 1967, the Intervenor gave the Employer such notice, and on June 20, 1967, a new 2-year agreement, ending May 31, 1969, was executed. We find no merit in the Employer's contention that the instant petition is inoperative because it was dismissed by the Regional Director in his tele- gram of July 14, 1964. Aside from other consider- ations, the Regional Director, in that telegram, merely expressed his intention to dismiss the peti- tion as his reason for canceling the previously scheduled hearing. As made clear in his letter to the parties dated July 31, 1964, the Regional Director's expressed intention was never carried out because of the filing of the unfair labor practice charge. Accordingly, we find that the instant peti- tion has not been dismissed. The Employer asserts that its 1958 contract, as automatically renewed for the period April 1, 1964, until April 1, 1965, is a bar to the petition. We find, however, that the aforesaid contract is not a bar to ' Employee's Committee of Modern Plastics Corporation intervened on the basis of its contract interest in the employees involved. 2 We take administrative notice of this letter which, although not a part of the record herein, is referred to in the Employer's brief and a copy of which was sent to all parties. 3 155 NLRB 1126. " Modern Plastics Corporation v. N.L.R .B., 379 F.2d 201 (C.A. 6). 169 NLRB No. 99 MODERN PLASTICS CORPORATION 717 this proceeding, because the decision herein is issu- ing after the expiration date of that contract . United Fruit Company, 134 NLRB 287, fn. 23. We further find that none of the subsequent contracts between the Employer and the Intervenor are a bar, as they are not asserted as a bar to this petition , and, in any event, they were executed after the instant petition was filed, and while it was still pending before the Board. The Employer also contends that the Regional Director failed to make an adequate investigation of the Petitioner's showing of interest. However, showing of interest is an administrative matter, and we are administratively satisfied that Petitioner has made an adequate current showing of interest. We also find no merit in the Employer 's conten- tion that further processing of this petition is con- temptuous of the court's decision in Case 7-CA-4789. Although the court there held that the Intervenor was not a dominated union , and set aside the Board's Order that it be disestablished, neither the issue as to the timeliness of the petition herein, nor the question concerning representation raised thereby , nor any other issue herein , was be- fore the court in that case. We therefore find that a question affecting com- merce exists concerning the representation of em- ployees of the Employer within the meaning of Sec- tions 9(c)(1) and 2(6) and (7) of the Act.5 4. The Petitioner and the Employer agreed to the appropriateness of a plantwide production and maintenance unit. They also agreed that "local" truckdrivers should be included in the unit, but the Petitioner contended that these employees should not be mentioned specifically in the unit descrip- tion. The position of the Intervenor on this issue is unclear. The drivers in question, presently three in number, are ordinarily assigned to pick up and deliver parts at local stops in town, or between the Employer's plants. However, when not driving, these employees are assigned other duties within the plant. In these circumstances, we find that the local truckdrivers have interests in common with the production employees, and we shall specifically include them in the production and maintenance unit. Accordingly, we find that the following em- ployees constitute a unit appropriate for the pur- poses of collective bargaining within the meaning of Section 9(a) of the Act: All production and maintenance employees at the Company's plants located at 489 North Shore Drive and 425 Ninth Street in Benton Harbor, Michigan, including local truckdrivers, but excluding office clerical and professional employees, guards and supervisors as defined in the Act. [Direction of Elections omitted from publica- tion. ] 5 It is noted that the representative of the Intervenor who appeared at the hearing agreed with the Petitioner that a question concerning representation exists and an election should be held. 6 An election eligibility list, containing the names and addresses of all the eligible voters, must be filed by the Employer with the Regional Director for Region 7 within 7 days after the date of this Decision and Direction of Election The Regional Director shall make the list available to all parties to the election No extension of time to file this list shall be granted by the Regional Director except in extraordinary circumstances. Failure to comply with this requirement shall be grounds for setting aside the election whenever proper objections are filed. Excelsior Underwear Inc., 156 NLRB 1236.