Baldwin Auto Co., Inc.

88 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Baldwin Auto Company , Inc and Local 259 United Automobile Workers, Petitioner Case 29-RC-1029 August 14, 1969 DECISION ON REVIEW AND DIRECTION OF ELECTION By MEMBERS FANNING, JENKINS, AND ZAGORIA On September 16, 1968, the Regional Director for Region 29 issued a Decision and Order in the above-entitled proceeding in which he found the petition barred by the current contract between the Employer and the Intervenor, Amalgamated Local Union 355, concluding on the evidence that the Petitioner had not been able to support its contention that such contract is a premature extension of the antecedent contract with respect to which its petition had been timely filed The Petitioner thereafter filed a timely request for review on the grounds that the Regional Director erred in finding (1) that the current contract was not shown to be a premature extension, and (2) that, in any event, the current contract, by reason of its broad mid-term modification provision, did not satisfy the requirements of Appalachian Shale Products Co , 121 NLRB 1160 The Intervenor filed opposition to the request for review The Regional Director decided to treat the Petitioner's second ground for seeking review as a motion for reconsideration and on November 6, 1968 issued a Supplemental Decision and Order in which he rejected the contention No request for review was filed with respect to the Supplemental Decision On June 10, 1969, the National Labor Relations Board, by telegraphic Order, granted the Petitioner's request for review of the Regional Director's finding that the existing contract is not a premature extension Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Board has delegated its powers in connection with this case to a three-member panel The Board has considered the entire record with respect to the issue under review and makes the following findings The Employer is a retail automobile dealer The Petitioner seeks an election in a unit of its approximately 9 service department employees currently represented by the Intervenor The Employer and the Intervenor have a contract covering such unit, effective from its July 26, 1967, execution date to August 1, 1970, which contract they interpose as a bar to the petition The Petitioner contends that its petition, filed May 24, 1968, was timely with respect to an antecedent contract, effective from October 25, 1965, through July 31, 1968, and that the current agreement, under the Board's premature extension doctrine was inoperative as a bar As above indicated, the Petitioner contends that the Regional Director erred in concluding from the record that the existing contract was not shown to be a premature extension of the antecedent agreement In support of its contention, the Petitioner introduced in evidence a copy of the contract which it alleges was antecedent to the current contract advanced as a bar Puchelt, the present shop steward for unit employees, identified it as a copy of the antecedent contract which Talkow, the Intervenor's business agent, gave him when he was elected shop steward in 1965 or 1966 Puchelt testified that when Talkow gave him the document he said "this is the contract " Puchelt further testified that, in response to his request, Talkow had two meetings with unit employees for the discussion of their grievances or any changes they wished to make in the contract prior to the negotiations due in June pursuant to the broad reopening clause of the contract, and that he participated in some of the negotiations (using the copy of the contract introduced in evidence by the Petitioner as his working copy)' on the assumption that the negotiations were pursuant to its reopening clause Finally, he testified that when he received a copy of the current contract in the mail he read it through and noted that some changes had been made which were not included in the negotiations, specifically, that nothing had been discussed in those negotiations pertaining to the extension of the contract to 1970 2 The Intervenor introduced in evidence a contract which it asserts is a duplicate of the original antecedent contract, and which, unlike the copy relied on by the Petitioner, has an expiration date of July 31, 1967, and has no mid-term reopening clause It was testified that this duplicate was prepared at the Employer's request as a replacement for its copy of the original which was lost or misplaced The duplicate admittedly was signed after the filing of the instant petition Although the Intervenor asserts that the duplicate is the same as the original in its files, the latter was not introduced in evidence We note that the provision for broad reopening on July 1, 1968, in the current 3-year contract is identical in language to that contained in the copy of the antecedent contract introduced in evidence by the Petitioner Upon the foregoing and the entire record in this case, we believe the Intervenor has not satisfactorily controverted the Petitioner's evidence that the July 'Puchelt testified that certain markings on the document were placed there by him to indicate questions or grievances which employees wished to have resolved in the negotiations He further testified that certain crossed out articles in the body of the contract (i e article XII-Welfare funds article X I I l -United Welfare) Fund - Security Division andd article X V I- Vacations paragraph a) were crossed out when he received the copy of the contract 'The Intervenors business representative Talkow in his testimony said he did not believe he gave Puchelt a copy of the antecedent contract but may have given one to the shop steward before him He also testified that Puchelt was present during 1967 negotiations on the subject of contract duration However his recollection of events occurring in 1966 and 1967 was admitted by him to be unclear 178 NLRBNo 37 BA L D W'I N AU TO. CO. 89 26, 1967, contract was a premature extension of the antecedent agreement. In so finding, we note that the copy of the earlier contract introduced by the Petitioner to support its contention was the best evidence available to it, and the Intervenor's steward testified he had been given that copy by the Intervenor for his use in negotiations and handling grievances. On the other hand, the copy introduced by the Intervenor was not the original, but a replacement for the Employer's lost copy signed after the filing of the petition. In these circumstances, we are constrained to rely on the document introduced by the Petitioner as the accurate copy of the underlying contract, and find that the July 26, 1967, contract relied on by the Employer and Intervenor was a premature extension of the earlier contract. As the petition was timely filed with respect to the termination date of the underlying contract, we find there is no contract bar to an election. Accordingly, we find that a question exists concerning the representation of certain employees of the Employer within the meaning of Section 9(c)(1) and Section 2(6) and (7) of the Act, and 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: 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 shop employees in the service department at the Employer's location in Baldwin, New York, excluding all other employees, including office clericals, new and used car salesmen, watchmen, guards and supervisors as defined in the Act. [Direction of Election' omitted from publication.] '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 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 29 within 7 days of the date of this Decision on Review 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.