The Utilco Co.

664 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Utilco Company and United Steelworkers of America, AFL-CIO, Petitioner. Case 9-RC-9385 June 16, 1972 DECISION AND DIRECTION OF ELECTION Upon a petition duly filed under Section 9(c) of the National Labor Relations Act, as amended, a hearinf was held before Hearing Officer Edward C. Verst Af the National Labor Relations Board. Following the hearing and pursuant to 'Section 102.67 of the Board's Rules and Regulations, the Regional Director for Region 9 transferred this case to the Board for decision. The Employer filed a brief. 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 brief, the Board finds: 1. The parties stipulated, and we find, that the Employer is engaged in commerce within the meaning of the Act. We further find that it will effectuate the purposes of the Act to assert jurisdic- tion herein. 2. The parties stipulated, and we find, that the Petitioner is a labor organization within the meaning of Section 2(5) of the Act. Utilco Workers Association, herein called Interve- nor, was permitted to intervene at the hearing on the basis of its contract interest. The Intervenor is an organization of employees of the Employer which has represented the employees in collective bargain- ing pursuant to a collective-bargaining agreement which ran from August 22, 1969, to December 31, 1971. It has an elected president and a governing "conpmittee." There are no dues. The record shows that employees participate in the organization, which has negotiated with the Employer concerning terms and conditions of employment and has processed grievances on behalf of employees. We find that the Intervenor is a labor organization within the mean- ing of Section 2(5) of the Act. Both labor organiza- tions involved claim to represent certain employees of the Employer. 3. Contrary to the contention of the Employer, a question affecting commerce 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. It is the Employer's contention that the instant petition should not be entertained because a prior petition was filed during the last 60 days of the then ' 158 NLRB 956 z If the parties reach a valid collective-bargaining agreement during those 60 days, the Board's contract-bar rules will presumably operate to 197 NLRB No. 103 existing contract between the Employer and the Intervenor, which petition was not withdrawn until after the contract expired, and because the instant petition was filed immediately thereafter. Under the authority of Electric Boat Division, General Dynamics Corporation,' the Employer argues that the pendency of the prior petition prevented the contract parties from enjoying the full 60-day insulated period before the contract expired, free from the uncertainty of Petitioner's rivalry for representation of the employ- ees, and that therefore the parties should have been granted an additional 60-day bargaining period, after which a new petition would be entertained only if a question1concerning, representation. then, exists.2 The contract, as stated, ran from August 22, 1969, to December 31, 1971. Petitioner filed a petition on December 14, 1971, in Case 9-RC-9357, seeking to represent certain employees who were represented by Intervenor in the contract unit. The Regional Director mailed a notification of the filing of the petition to the Employer on December 16, which was received in due course and posted on the plant bulletin board. Apparently not receiving any re- sponse from the Employer, the Regional Director issued a Notice of Representation Hearing on December 28, 1971. The following day, the Regional Director received a letter from Employer's counsel, advising him of the existence of the contract. Meanwhile, negotiations had been going on over a new contract. The parties had negotiating meetings on November 10, November 29, and December 27, 1971, at which date they experienced a "communica- tion breakdown" and did not meet again before the contract expired. The representation petition was never mentioned ink theirs negotiating) sessions. The Regional Director permitted the withdrawal of the petition in Case 9-RC-9357, and the filing of the petition in the instant proceeding, on January 6, 1972. The Employer requested review of the Region- al Director's order allowing the withdrawal of the original petition on the ground that the order should have specified that no new petition would be entertained for a period of 60 days. On January 19, 1972, the Board denied review, without prejudice to the Employer's reasserting its position at the hearing on the new petition. That position has been reassert- ed and is now before us. The request for an additional insulated period is based solely upon the Board's decision in Electric Boat Division, supra. We find that decision to be inapplicable in the circumstances of this case. As the Board has said twice previously: The policy enunciated in the Electric Boat case postpone the effective filing of a new petition until 90 days before the expiration of the new agreement. Leonard Wholesale Meats, Inc, 136 NLRB 1000. THE UTILCO COMPANY applies, excepting unusual circumstances, only where an untimely petition is processed under conditions denying the parties to an existing bargaining relationship an opportunity to execute anew contract within, they 60-day period.3 First, it can hardly be said that the untimely petition filed on December 14, 1971, was processed in a manner that could have prejudiced the parties' opportunity to execute a new contract. The contract parties, upon learning that the petition had been filed, kept to themselves the information that could have resulted in an immediate dismissal of the petition, namely, the fact of the existence of the contract. If, instead of waiting 2 weeks, which was 2 days before the contract expired, the Employer had informed the Regional Director promptly about the contract, the Regional Director could have done either of two things. He could have dismissed the petition while there remained time within the insulated period for further negotiations, thereby eliminating any arguable interference with the parties' negotiations.4 Or, if it appeared that any question existed as to the status of the contract for contract-bar purposes, the Regional Director could have proceeded to a determination of that issue, and then, if necessary and appropriate, given the parties an additional insulated period under the doctrine of Electric Boat. So if the contract parties were in fact prejudiced by the processing of the untimely filed petition, they were themselves largely to blame. We 3 The Kroger Company, 173 NLRB 397; Royal Dean Coal Company, 177 NLRB 700 4 See Kroger Company, supra 5 At the hearing the Petitioner raised the question of the supervisory status of two employees , John Garner and Joseph Bard The Employer contends that they are not supervisors Both of these employees divide their time between truckdnvmg and production and maintenance work. Garner occasionally passes instructions from management personnel to other employees and, as a senior employee, performs some training and instruction functions toward new employees Neither, however, has any of the attributes of statutory supervisors , and we find that they should be included in the unit 6 In order to assure that all eligible voters may have the opportunity to 665 are disinclined to allow them to profit from the situation they helped to create. But perhaps of greater significance is the fact that the record indicates that the existence of the untimely petition had no effect upon the parties' ability to reach a new contract. The parties had 46 days to bargain before they had notice of the petition. During that period, and thereafter, they bargained. Their failure to reach an agreement was in no way tied in, on this record, to the petition. In fact, as stated, the evidence is that the petition was never mentioned. Since there is no showing that an additional insulated period may be justified on any other grounds, we find that the August 22, 1969, agreement between the Employer and the Intervenor is no bar to an election herein. 4. 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(c) of the Act: 5 All full-time and part-time production and maintenance employees, including truck drivers, employed by the Employer at its location at 4730 Madison Road, Cincinnati, Ohio; excluding all' office clerical employees, professional employees, guards, watchmen, and supervisors as defined in the Act, and all other employees. [Direction of Elections omitted from publication.] 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 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 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 f•le 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.