Consolidated Novelty Co., Inc.

CONSOLIDATED NOVELTY CO., INC. Consolidated Novelty Company, Inc. and District 154, International Association of Machinists and Aerospace Workers, AFL-CIO, Petitioner. Case-RC-8321 October 30, 1970 DECISION AND DIRECTION OF ELEC- TION CHAIRMAN MILLER AND MEMBERS BROWN AND JENKINS Upon a petition duly filed under Section 9(c) of the National Labor Relations Act, as amended, a hearing was held before Hearing Officer Douglas J. Muir. On June 16, 1970, the Regional Director for Region 9 issued an order transferring this case to the National Labor Relations Board. Thereafter, the Employer and the Intervenor filed briefs. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel. The Board has considered the Hearing Officer's rulings made at the hearing and finds that they are free from prejudicial error. They are hereby affirmed. Upon the entire record in this case, including the briefs, the Board finds: 1. The Employer is engaged in commerce within the meaning of the Act and it will effectuate the purposes of the Act to assert jurisdiction herein. 2. The labor organizations i involved claim to represent certain employees of the Employer. 3. A question affecting commerce exists concern- ing the representation of the employees of the Employer within the meaning of Section 9(c)(1) and Section 2(6) and (7) of the Act. The Employer and the Intervenor contend that the petition should be dismissed because the contract is a bar to an election. The facts show that the Petitioner and the Intervenor have had contractual relationship since 1951 at the Employer's Patterson, New Jersey, plant, and since 1957 at the Employer's Amsterdam, New York, plant. The employees engaged in the Employer's manufacture of artificial Christmas trees at the Patterson and Amsterdam plants (i.e., all unit employees herein) have been represented by the Intervenor. In late May or early June 1969, the Employer decided to move its Patterson Christmas tree operation to Mayfield, Kentucky, and so in- formed its employees, offering them continued 197 employment and assistance in the move. None of the employees moved. Production was begun at the Mayfield plant at about the middle of August 1969. A contract covering the Mayfield plant was executed by the Employer and the Intervenor. The Preamble of the contract opens: "Agreement made this 13th day of June 1969.. and states: WHEREAS, because of serious economic condi- tions the Employer has not been engaged in production in Patterson, New Jersey approximate- ly six (6) months. WHEREAS, it becomes necessary to relocate production facilities. NOW, THEREFORE, the parties hereto mutually agree. . . . The Intervenor contends that the contract, though dated June 13, 1969, was negotiated by July 22, 1969, and signed around August 15, 1969. However, there is no date other than June 13, 1969 appearing in the contract and no indication of retroactivity from some later date of execution. There was a substantial change in the number of employees at Mayfield between the written June 13 contract date and the alleged August 15 execution date. The Employer had, at most, 7 employees through June and July 1969, and hired over 100 people during the first 2 or 3 weeks of August when it began production. We find no merit in the contentions of the Employer and the Intervenor that the contract is a bar to an election. The agreement provides that it was made June 13, 1969, by which time the Employer had hired at most seven employees, so that at the time of contract execution the Employer did not have 30 percent of its anticipated complement. The conten- tion that the contract was executed on August 15, 1969, retroactive to July 13 or 14, 1969, is irrelevant as the Board has held as a general rule that where the meaning of contract terms is clear such terms cannot be varied by reference to extrinsic matters.2 More specifically, the Board has held that parol evidence that would vary the execution date plainly set out in a contract is inadmissible to establish the contract as a bar.3 Under these circumstances, it is clear that there is no merit to the Employer's contention that the new contract was executed when it had a substantial and representative complement and is a bar for that reason under General Extrusion.4 Nor is there merit in the Employer's alternative position that the contract is a bar because it is an extension of its New Jersey contract to the relocated plant, since such an extension does not bar a petition unless, as is not the i United Service Employees Union , Local 377, RWDSU , AFL-CIO, was permitted to intervene based on its contractual interest. 2 Lindmart Jewelry Mfg Co. 119 NLRB 651, fn 2. 3 Lion Brand, Inc, 131 NLRB 196, 197 4 General Extrusion Co, Inc., 121 NLRB 147 186 NLRB No. 51 198 DECISIONS OF NATIONAL LABOR RELATIONS BOARD fact here, a considerable proportion of the employees were transferred.5 4. The parties stipulated, and we find, that the following employees constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act: All production and maintenance employees em- ployed by the Employer at its operation in Mayfield, Kentucky, excluding all office clerical employees, all professional employees and all guards and supervisors as defined in the Act.6 [Direction of Election 7 omitted from publication.] 5 Montville Warehousing Company, Inc., 158 NLRB 952, 954; Arrow Company, 147 NLRB 829. 6 An issue arose at the hearing with regard to the inclusion and eligibility of laid-off employees, should an election be directed . The record indicates that the Employer's artificial Christmas tree operation in Mayfield, Kentucky, is seasonal, with peak employment from September through December each year . The Petitioner urged that only those employees on an eligibility list submitted by the Employer for an election should be eligible to vote. The Intervenor argued that all laid-off employees with a reasonable expectancy of recall should be included . The Employer took the position that only employees who had not found other work should be entitled to vote. As we are directing an immediate election which will be held at peak season , the contentions of the parties as to the inclusion and eligibility of laid -off employees are not relevant. 7 In order to assure that all eligible voters may have the opportunity to be informed of the issues in the exercise of their statutory right to vote, all parties to the election should have access to a list of voters and their addresses which may be used to communicate with them . Excelsior Underwear Inc., 156 NLRB 1236; N.LR.B. v. Wyman-Gordon Company, 394 U.S. 759. Accordingly, it is hereby directed that 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 9 within 7 days of 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.