Mallinckrodt Chemical Works

MALLINCKRODT CHEMICAL WORKS I Mallinckrodt Chemical Works1 and United Steelwork- ers of America,2 AFL-CIO, Petitioner. Case 14-RC-7005 November 3, 1972 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND PENELLO Upon petitions duly filed under Section 9(c) of the National Labor Relations Act, as amended, a hearing was held on June 19, 20, 21, and 22, 1972, before Hearing Officer Victor R. Witte, Jr. Thereaf- ter, the Employer, Petitioner, and 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 authority in this proceeding to a three-member panel. The Hearing Officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed. Upon the entire record in this proceeding, the Board finds: 1. The Employer is engaged in commerce within the meaning of the Act. 2. The labor organizations involved claim to represent certain employees of the Employer. 3. No question affecting commerce exists con- cerning the representation of certain employees of the Employer within the meaning of Sections 9(c)(1) and 2(6) and (7) of the Act. The Petitioner seeks to represent employees of the Employer currently represented by the Intervenor, Independent Union of Chemical Plant Workers. The Employer and the Intervenor claim that a memoran- dum of agreement, executed on March 14, 1972, operated as a bar to the petition filed on March 24, 1972.3 The Employer has recognized the Intervenor as the collective-bargaining representative of its employees since 1937. From 1946 through 1971, the Employer and the Intervenor executed 16 written collective- bargaining agreements, 14 of which expired before agreement was reached on a new contract. The Intervenor was certified as the collective-bargaining representative of the employees on December 31, 1962, in Case 14-RC-4435, following an election. On October 18, 1971, the Intervenor gave the Employer notice of its intent to terminate the agreement then in effect, which was to expire by its terms on January 1, 1972. The parties commenced negotiations for a new contract in October 1971, and approximately 38 negotiation sessions were held until the memoran- dum of agreement was executed on March 14, 1972. On March 25, 1972, the parties executed a formal typewritten contract which set out the provisions of the memorandum of agreement and the unchanged provisions which were carried over from the contract which expired on January 1, 1972. On the same day, the employees voted to ratify the contract and ceased strike activities which had begun on March 1. In finding that no question concerning representa- tion exists, we need not reach the question whether the memorandum of agreement constituted a bar. Instead we find that the petition filed on Friday, March 24, was not supported by a timely showing of interest prior to final execution of the new formal agreement on March 25. Petitioner did not support its petition with an adequate showing of interest until Monday, March 27, 2 days after the Employer and the Intervenor executed the formal agreement. Section 101.17 of the Board's Rules and Regula- tions provides that a showing must be submitted within 48 hours of the filing of the petition, but in no event later than the last day a petition might timely be filed. Here, since the new contract was executed on March 25, 2 days prior to the submission of a showing of interest, the latter was untimely under the literal terms of the Board's rule. It is true that in Rappahannock Sportswear Co., Inc., 163 NLRB 703, the Board recognized an exception to that rule. However, that exception was based upon the special circumstances of that case. In that case, there was no bargaining history, and two rival unions were engaged in initial organization of the Employer's employees. The employer was aware of both organi- zational campaigns, and, on being notified that one of the unions had filed a petition, recognized and executed a collective-bargaining agreement with the other. Although the showing of interest in support of that petition was not furnished to the Regional Office until the date the aforementioned contract was executed, all cards predated the filing of the petition. The Board declined to apply Section 101.17, noting the manifest inequity in permitting the hasty signing r Herein referred to as the Employer 2 Herein referred to as the Petitioner 3 At the hearing, the Intervening Petitioner, Local #6, International Brotherhood of Firemen and Oilers, AFL-CIO, moved to withdraw its petition filed on April 17, 1972 , and moved to intervene in Case 14-RC-7005 The oral motion to intervene was granted Subsequent to the hearing the Regional Director approved the request to withdraw the petition in Case 14-RC-7027, without prejudice, and severed that case from Case 14-RC-7005. The parties stipulated that the following unit is appropriate All employees of Malhnckrodt Chemical Works , employed at the Employer's facilities at 3600 North Second Street, St Louis, Missouri, excluding foremen and assistant foremen, monthly salaried employees (office, clerical , technical and laboratory employees), professional employees, chauffeurs, power plant personnel , guards and supervisors as defined in the Act 200 NLRB No. 34 2 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of a contract to truncate the normal 48 hours for the filing of a showing of interest. Unlike Rappahannock, in the instant proceeding none of the factors that supported the Board's action in accepting a showing-late under a literal applica- tion of the rule-are present . Indeed the instant Petitioner, faced with the long bargaining history between the Employer and Intervenor and the persistent efforts of the latter to reach agreement, had adequate knowledge of the risk involved in any dilatory action and should not be relieved from compliance with our rules. For these reasons, we find that, under Section 101.17 of the Board's Rules and Regulations, Petitioner's showing of interest was untimely, and hence the final agreement executed by the Employer and Intervenor on March 25 constitut- ed a bar to an election. Accordingly, we shall dismiss the petition. ORDER It is hereby ordered that the petition filed in Case 14-RC-7005 be, and it hereby is, disnussed.