Roosevelt Memorial Park, Inc.,

ROOSEVELT MEMORIAL PARK, INC. 517 Roosevelt Memorial Park, Inc., and International filing of the petition on April 22, 1970, and therefore Industrial Workers Union of America, Local No. 13, Petitioner. Case 4-RC-8650 December 29, 1970 DECISION AND DIRECTION OF ELECTION BY CHAIRMAN MILLER AND MEMBERS FANNING AND JENKINS On April 22, 1970, Petitioner filed a petition under Section 9(c) of the National Labor Relations Act, as amended, seeking to represent certain of the Employ- er's employees. Thereafter, the Regional Director administratively dismissed the petition on the ground that a collective-bargaining agreement existed be- tween the Employer and the Intervenor and that the agreement constituted a bar to an election. The Regional Director's dismissal of the petition subse- quently was reversed on appeal to the Board which reinstated the petition and directed the Regional Director to issue a notice of hearing thereon. Accordingly, a hearing was held before Hearing Officer Gary H. Feinberg of the National Labor Relations Board. Following the hearing and pursuant to Section 102.67 of the National Labor Relations Board Rules and Regulations and Statements of Procedure, Series 8, as amended, by direction of the Regional Director for Region 4, the case was transferred to the Board for decision. A brief was filed by the Petitioner. 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 reviewed 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, 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 involved claim to represent certain employees of the Employer.' 3. The Intervenor asserts that an oral collective- bargaining contract, agreed upon in March 1969 and put in written form and signed in December 1969, is a bar to the petition herein. The Petitioner contends that the Intervenor has failed to prove that the contract, which was undated,2 was signed prior to the cannot serve as a bar to an election. The Intervenor adduced testimony from three agents of the Intervenor and the representative of the Employer who signed the contract to support its position that the contract is a bar to an election. John H. Daniels, president of the Intervenor, stated that he signed the contract "it seems like to me it was this past winter." Benjamin Irvin, Intervenor's business man- ager, testified that he signed the contract "around the 15th of December" 1969. Martin Banks, business manager for the Laborers' District Council, testified that he "could not give any date." And Ray Silverstein, the Employer's representative, asserted that he signed the contract "in the early part of December 1969." The Intervenor also introduced evidence to show that the terms of the contract had been complied with beginning in March 1969, after the oral agreement had been concluded, and that the employees had ratified the oral agreement shortly thereafter. The Petitioner's evidence consisted primarily of the testimony of John Benedetto, Petitioner's business manager. Prior to filing the petition in this case Benedetto had served as a field representative for the Intervenor. In that capacity he had dealt with the Employer and had participated in the negotiations for a new contract until February 1969. He testified that he had never seen a copy of the contract, although policing the terms of the agreement was one of his duties, and further testified that, in conversations with Silverstein after the filing of the petition, Silverstein stated that the Employer had a "moral contract" with the Intervenor which it intended to honor. Moreover, Silverstein admitted that the Employer had withheld payment of dues checked off from its employees' pay from July 1969 to April 1970, and also conceded that he had told Benedetto and others that the dues were not remitted because there was no contract. In rebuttal the Intervenor introduced evidence to show that information regarding the contract was deliberately withheld from Benedetto. And Silverstein testified that the delay in sending the Union the checked-off dues was occasioned by the necessity of computing the amounts paid by each employee and obtaining the signatures on the checks from the owners who were located in Ohio. It is well settled that the party or parties asserting that a contract is a bar to an election bear the burden of proof that the contract was fully executed, signed, t Laborers' District Council of Metropolitan Area of Philadelphia and bargaining contract with the Employer Vicinity (Local 57), affiliate of Laborers' International Union of North 2 The absence of a date is not in itself sufficient to vitiate the contract America , AFL-CIO, intervened on the basis of an existing collective- as a bar Western Roto Engravers, Incorporated, 168 NLRB 986 187 NLRB No. 74 518 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and dated prior to the filing of the petition by the Petitioner.3 We are not satisfied that this burden has been met in this case . The contract is undated and the testimony in support of Intervenor's contention that it was executed prior to the demand for recognition and the filing of the petition is vague, ambiguous, and inconsistent with other testimony of the signatories, the testimony of Petitioner's witnesses, and facts admitted in the record. We therefore find that the collective-bargaining contract relied upon by the Intervenor is not a bar to an election. Accordingly, we find that a question affecting commerce exists concerning the representation of employees of the 3 Bo-Low Lamp Corporation, I I I NLRB 505, 508, Appalachian Shale Products Co, 121 NLRB 1160 4 The intervenor did not state at the hearing whether or not it wished to participate in an election It may appear on the ballot in the election herein directed if it so indicates S 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 L R B v Wyman-Gordon Co, 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 Employer within the meaning of Sections 9(c)(1) and 2(6) and (7) of the Act. 4. The parties have stipulated, and we find, that the following employees of the Employer constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act: All general laborers and operators of all mechani- cal equipment and mechanics, excluding clerical, sales personnel and supervisors as defined in the Act.4 [Direction of election 5 6 omitted from publication.] by the Employer with the Regional Director for Region 4 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 6 As indicated in footnote 3, Laborers ' District Council of Metropolitan Area of Philadelphia and Vicinity (Local 57), affiliate of Laborers' International Union of North America, AFL-CIO, will appear on the ballot only if that union so desires