Boise Cascade Corp.

BOISE CASCADE CORPORATION Boise Cascade Corporation and United Papermakers and Paperworkers , AFL-CIO, Petitioner. Case 8-RC-7409 September 26. 1969 DECISION AND ORDER By CHAIRMAN MCCULLOCH AND MEMBERS FANNING AND JENKINS Upon a petition duly filed under Section 9(c) of the National Labor Relations Act, as amended, a hearing was held on April 4. 1969, before Donald E. Howard, Hearing Officer. On May 6, 1969, the Regional Director for Region 8 transferred the case to the National Labor Relations Board. Thereafter, the Employer, the Petitioner, and the Intervenor' filed briefs. Pursuant to the provisions of Section 3(b) of the Act, the Board had 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, including the briefs and statements of the parties, 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 issue is whether a question affecting commerce exists concerning the representation of employees of the Employer within the meaning of Sections 9(c)(1) and 2(6) and (7) of the Act. The Petitioner contends that the contract between the Employer and the Intervenor covering an expanding production and maintenance unit in a new plant, executed on the date the Petitioner requested recognition and filed an election petition. does not bar the petition. The Employer and the Intervenor contend that the, number of employees and job classifications in the unit have not so significantly increased from the date of execution of the contract as to remove the contract as a bar. They further contend that the Petitioner's request for recognition and filing of the petition on the same day the contract was executed do not remove the contract as a bar. The Employer began hiring on January 3, 1969, and started production on January 29 in its new corrugated-paper container plant in Marion, Ohio. On February 4, the Intervenor requested recognition on the basis of seven signed authorization cards out of an employee complement of eight on that date. The Employer signed a letter of recognition on the 'International Brotherhood of Pulp . Sulphite and Papermill Workers, AFL-CIO, herein referred to as Intervenor. 673 same day. The Petitioner began soliciting cards on February 10 and by February 11 had enough to support the filing of a petition. The Employer and the Intervenor began bargaining on February 10, and on February 12 reached agreement. Between 2:30 and 3:30 p.m. on the latter date, they signed a contract. Meanwhile, at 3.30 a.m. on February 12, the Petitioner sent a telegram to the Employer expressing an interest in the plant and requesting recognition as the bargaining agent. Also, at noon on February 12, it filed the instant petition at the 8th Regional Office (Cleveland). The Employer received the telegram at about 9 a.m. that morning but, having previously recognized the Intervenor, continued negotiating with it. and executed the above-mentioned contract with the Intervenor effective as of that date. The telegram made no mention of the Petitioner' s intention to file a petition F. W. Lackey, the Employer's representative who executed the contract, was unaware of the Petitioner' s interest in representing the employees until the morning of February 12, when he received the Petitioner's telegram requesting recognition, and he was unaware of the filing of the petition until he received notice thereof by mail the following day, February 13. On February 12, the execution date of the contract, there were nine production and maintenance employees employed in eight job classifications. There are 29 job classifications listed in Exhibit A of the contract. On April 4, the date of the hearing, there were 23 production and maintenance employees employed in 15 job classifications. The Employer is planning to add three or four more employees by October and hopes to achieve full productive capacity with 80 employees in 2 to 3 years. The Employer's representative testified that they will never use some of the classifications listed in the contract at this plant. The Petitioner first contends that under the General Extrusion rule,' the contract cannot bar the petition because the required number of employees employed and job classifications in existence on the date of contract execution were insufficient as compared with the number employed and classifications in existence on the date of the hearing. The rule requires that, in order for a contract to be a bar, 30 percent of the number of employees employed and 50 percent of the number of job classifications in existence on the date of the hearing must have been employed and in existence on the date of contract execution. Since there were nine employees listed in eight job classifications on the contract execution date as compared with 23 employees listed in 15 job classifications on the hearing date, it is evident that. using these figures alone. the requirements of the General Extrusion rule are satisfied. 'Genera( Extrusion Company. Inc. 121 NLRB 1165. 178 NLRB No. 106 674 DECISIONS OF NATIONAL LABOR RELATIONS BOARD But the Petitioner contends that since Exhibit A of the negotiated contract lists 29 classifications and since several of the employees fill at least six unmanned classifications on a part-time basis, there actually were at least 21 or even 29 different classifications "in existence" on the hearing date, and the contract must fail as a bar because of the 50 percent requirement. We do not agree. The "in existence" rule was intended to assure that a representative number of fob classifications were occupied at the time the contract was made, in order to allow workers performing different functions, with possibly conflicting interests, to he heard from. The fact that the employees here, who are on the payroll in single classifications only and are paid only the rates of those classification, may occasionally be doing other sorts of work is an irrelevant consideration. as well as being impracticable in application, in determining the comparison of jobs "in existence " Similarly, the other unfilled classifications listed in the negotiated contract can not properly be considered jobs "in existence Secondly, the Petitioner contends that there is no contract bar here because the Employer was admittedly informed of the Petitioner's interest and request for recognition by the Petitioner's telegram delivered to the Employer at about 9 a m. on February 12, at a time before the contract was executed between 2.30 and 3:30 p.m. on February 12. Also. the Petitioner filed its petition at noon on February 12 before the contract was executed. In support of its position, the Petitioner cites East Texas Pulp and Paper Co..' Portland Associated Morticians,' and Rappahannock Sportswear Co., Inc.' At the outset. it should be noted that, under the applicable principle declared in Deluxe Metal," a rival petition filed on the same day that a contract is executed is not timely filed, unless the employer knew that the petition had been filed at the time it executed the contract. Since the Employer here was only informed of the Petitioner's representative interest and not of the filing of the petition at the time it executed the contract, the petition must fail because of this requirement. The Petitioner contends, however, citing East Texas Pulp and Paper Co , supra, that the employer's knowledge of the Petitioner's claim to representation as the bargaining agent and the fact of the Petitioner's filing of the petition before execution of the contract are sufficient to deteat the contract. This contention is based on the rule in General Electric X-Ray,' which held that a bare claim made before the contract was executed would remove the contract as a bar where a petition is filed within 10 days following the claim. However, X-Ray is no longer good law because, in Deluxe Metal, the Board 'I 13 NLRB 539, 541-42 '163 NLRB 614 '163 NLRB 703 "decided to eliminate the X-Rai rule and to require instead [of a bare claims the filing of a petition with the Board at an appropriate time."' But the Petitioner argues that, as an exception to the Deluxe Metal rule, a telegraphic notice of a claim to representation rights has been held to prevent a subsequently signed contract from barring an election even though the employer did not receive notice of the filing of the petition until after the contract was executed. In support of this contention, the Petitioner cites the Portland Associated Morticians, Inc , and the Rappahannock Sportswear Co., Inc. cases. In the Rappahannock case, the petitioner telegraphed the employer demanding recognition and advising it that a "petition is simultaneously being filed with the . . . Board," and the next day, after the employer received the telegram, but about 2 hours before the Board received the petition, the employer executed the contract with a rival union. The Board held that the contract was not a bar. This case is distinguishable in that, as the Board held, the employer was, within the meaning of' Deluxe Metal, "informed' of the petitioner's filing of a petition before it signed the contract with the other union. In the Portland case, the employer's attorney knew of the petitioner's interest and admittedly expected that a petition might be filed, but went ahead and dictated a draft of the contract for signature of the incumbent union 's representative and left his office at about 1.40 p.m., telling his secretary to notify the incumbent that the contract was ready for signature. The incumbent's representative signed the contract at about 2 p.m. When the attorney returned at about 5:40 p.m., he, too, signed the contract. He then went into his reception room and there found a telegram from the petitioner, received at about 4 p.m.. advising him that the petitioner had filed its petition, which had actually been filed at about noon on the same day. The Board held that the contract was not a bar. This case, too, is distinguishable, since the Board held that the receipt of the telegram at the attorney's office before he executed the contract constituted constructive notice to the employer of the filing of the petition. Thus, in the above cases, the employer had either actual or constructive knowledge of' the petitioner's filing of its petition before the employer executed the contract. In the present case, since the Employer only had knowledge of the Petitioner's telegraphic bare claim when it executed the contract, we find that the petition is subject to dismissal under the test of Deluxe Metal, which held that a hare claim of 'Deluxe Metal Furniture Conzpanv , 121 NLRB 995, 999 "Such a contract will bar an election if it is effective immediately or retroactively and the employer has not been informed at the time of execution that a petition has been riled " '67 NLRB 997 '121 NLRB 995, 998 BOISE CASCADE CORPORATION' 675 representation is not sufficient to remove the ORDER contract as a bar. We shall therefore dismiss this petition on the ground that the contract is a bar to It is hereby ordered that the Petitioner's petition the petition and, therefore. no question affecting for a unit of production and maintenance employees commerce exists concerning representation within at the Employer's plant in Marion, Ohio, be, and it the meaning of Section 9(c)(1) and Section 2(6) and hereby is, dismissed. (7) of the Act.