Ideal Can Co.

IDEAL CAN COMPANY 59 Ideal Can Company and International Union of Elec- trical, Radio and Machine Workers, AFL-CIO- CLC, Petitioner. Case 1-RC-13639 July 10, 1975 DECISION ON REVIEW AND DIRECTION OF ELECTION BY MEMBERS FANNING, KENNEDY, AND PENELLO On February 12, 1975, the Regional Director for Region 1 issued a Decision and Order in the above- entitled proceeding, in which he dismissed the peti- tion filed herein on the basis of his finding that a collective-bargaining agreement between Employer and the Ideal Can Progressive Association' automat- ically renewed itself and operated as a bar to the instant petition. Thereafter, the Petitioner filed a timely request for review of the Regional Director's decision on the grounds that in finding a contract bar herein he made erroneous findings of fact and de- parted from established policy. The Employer filed opposition to the request for review. On April 14, 1975, by telegraphic order, the re- quest for review was granted. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the entire record in this case with respect to the issues under review and finds that a question affecting commerce exists concerning the representation of certain employees of the Em- ployer within the meaning of Sections 9(c)(1) and 2(6) and (7) of the Act, for the following reasons: The Petitioner asserts that the Regional Director erred in failing to find that the Employer and the Association, in the course of negotiating midterm modifications in their contract due to expire Decem- ber 1, 1974, by their conduct waived the necessity for written notice to terminate or modify their agree- ment, and therefore forestalled its automatic renew- al. For this reason, it contends that its petition is not barred as it was filed after the expiration of that con- tract and prior to execution of a new one. We find merit in these contentions. The Employer and the Association had an agree- ment effective from December 1, 1971, to December 1, 1974. The agreement provided for automatic re- newal "unless written notice of a desire to terminate or modify [the agreement] is given by either party to the other, by registered or certified mail . . . sixty 1 The Association did not intervene in this proceeding. days before the expiration ..... It is undisputed that no written notice was given by either party. The instant petition was filed on December 5, 1974. Throughout their bargaining relationship the Em- ployer and Association have negotiated midterm changes in their agreement. These negotiations have always begun informally with one party merely voic- ing a desire to talk. Similarly, in May 1974, the Asso- ciation requested a 60-to-70-cent-per-hour cost-of- living wage increase to become effective July 1, 1974. While the question was being discussed, Donald Blanchard, Employer's personnel manager and nego- tiator, requested negotiations as to other issues. Pur- suant to this request, such broadened negotiations were conducted in several sessions from May until July 31, 1974. At that time the Association presented to its membership for approval the following issues upon which agreement had been reached: the addi- tion of another paid holiday; removal of the supervi- sors from the unit on a trial basis for a year; a 25- cent-per-hour across-the-board wage increase effec- tive August 1, 1974; and a 25-cent-per-hour across-the-board wage increase effective March 1, 1975. The membership voted to accept all of these provisions, choosing the day after Thanksgiving for the new holiday. However, the employees would not accept a 3-year extension of the contract as the Em- ployer desired but voted for a 1-year extension. The Employer later accepted the 1-year extension and prepared a memorandum of agreement including the above points of agreement and additional minor ones. However, this document was never presented to the Association for signature. On September 12, a wage agreement was executed. Although no agree- ment was executed as to the other terms previously negotiated, they were in fact implemented by the Employer. From the foregoing and the entire record, we are satisfied that the Employer and the Association in- formally reopened their contract scheduled to expire December 1, 1974. Clearly, the Association acceded to the Employer's request that the midterm negotia- tions initiated in May 1974 be broadened to include other matters, including a new expiration date. Al- though, as stated, the ensuing negotiations led to agreement on several issues, only the agreement as to wages was signed by the Employer and the Associa- tion. In effect, the parties reached a new agreement, incompletely executed, which superceded the agree- ment scheduled to run from December 1, 1974. The original agreement was no longer in existence at the time it could, by its terms, have been automatically renewed absent a notice of desire to terminate or modify. We find, therefore, that the Association's contract with the Employer was not automatically 219 NLRB No. 8 60 DECISIONS OF NATIONAL LABOR RELATIONS BOARD renewed and that the instant petition was timely, as it was filed after the expiration of their contract and before a new one was fully executed? Accordingly, we shall direct an election in the fol- lowing unit which, in agreement with the parties' stipulation, we find to be appropriate for the purpos- es of collective bargaining within the meaning of Sec- tion 9(b) of the Act: All production, maintenance, and shipping employees at the Employer's 50 New Salem Street, Wakefield, Massachusetts, facility, ex- cluding office clerical employees, guards, and supervisors as defined in the Act. [Direction of Election omitted from publica- tion.] 3 4 2Appalachian Shale Products Co., 121 NLRB 1160 (1958). 3 [Excelsior footnote omitted from publication.] bent representative of the employees involved. If it wishes to be removed a Although the Ideal Can Progressive Association did not intervene here- from the ballot, it shall so notify the Regional Director of Region I in in, we are placing its name on the ballot in view of its status as the incum- writing within 5 days of the date of this decision