American Manufacturing Co., Inc.

National Labor Relations Board - Board Decisions

Dec 21, 1967

168 N.L.R.B. 981 (N.L.R.B. 1967)

ST. LOUIS CORDAGE MILLS
St. Louis Cordage Mills , Division oft American
Manufacturing Company, Inc. and International
Union of District 50, United Mine Workers of
America , Petitioner. Case 14-RC-5582
December 21,1967
DECISION AND DIRECTION OF
ELECTION
BY CHAIRMAN MCCULLOCH AND MEMBERS
FANNING AND ZAGORIA
Upon a petition duly filed under Section 9(c) of
the National Labor Relations Act, as amended, a
hearing was held before John S. Stevens, Hearing
Officer of the National Labor Relations Board. The
Employer, the Petitioner, and the Intervenor, Local
695, Textile Workers Union of America,
AFL-CIO,2 filed briefs.3
Pursuant to the provisions of Section 3(b) of the
Act, the National Labor Relations Board has
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 prejudical error. They are hereby af-
firmed.
Upon the entire record in this case, 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. A question affecting commerce exists con-
cerning the representation of employees of the Em-
ployer within the meaning of Sections 9(c)(1) and
2(6) and (7) of the Act.
The Employer is engaged at St. Louis, Missouri,
in the manufacture and processing of fiber and
synthetic rope. The Petitioner requests an election
in a unit of production and maintenance employees.
The Employer and the Intervenor, which has
represented these employees since its certification
' The name of the Employer appears in the caption as corrected at the
hearing.
2 Local 695 intervened on the basis of its current contract covering em-
ployees involved herein.
' The Employer and Intervenor moved to quash the Petitioner's brief as
in violation of Section 102.67(i) of the Board 's Rules and Regulations
This motion is denied , since the Employer and Intervenor were afforded
an opportunity to reply to the Petitioner's brief and did so. Accordingly,
the Petitioner's brief, the Intervenor's reply brief, and the Employer's
reply letter are accepted and have been considered by the Board.
The Employer and Intervenor also requested the Board to admit into
evidence a copy of their joint request to the Equal Employment Opportu-
nity Commission for an Opinion Letter, and a copy of the Opinion Letter
issued by the Commission's General Counsel, attached as part of the In-
tervenor's reply brief. The Petitioner states in its reply letter that it has no
objection to the Board 's consideration of these documents as having been
submitted by the Intervenor, subject to Petitioner's objections to them as
981
in 1945, contend that their current contract bars the
petition.4 The Petitioner contends that the contract
is a premature- extension of the prior contract and,
therefore, not a bar.
On January 2, 1945, the Intervenor was certified
as representative of a plantwide unit of Employer's
some 235 rope manufacturing employees,5 and,
since that time, has had successive collective-bar-
gaining contracts covering these employees. On
March 11, 1964, the parties executed a contract, ef-
fective from March 2, 1964, to March 5, 1967, con-
taining the following seniority provision:
Female employees will have seniority on those
jobs traditionally held by females, and male
employees will have seniority on those jobs
traditionally held by males.
In October 1966, after receiving advice from
counsel to correct contracts on the matter of sex
discrimination, the Intervenor requested the Em-
ployer to negotiate a new contract. On November
9, after hearing rumors of these negotiations, the
Petitioner sent a letter to the Employer claiming an
interest in representing its employees and
requesting the Employer not to sign a contract until
the representation question had been determined.
The Employer made no reply.
On December 1, 1966, the Employer and Inter-
venor executed a new contract, not only retroac-
tively effective from November 28, 1966, but also
extending the existing contract term from March 5,
1967, to March 5, 1969, and providing for seniority
on a departmental basis. This contract also pro-
vided for a wage increase, as well as for a new wel-
fare fund and credit union checkoff.
On December, 5, 1966, the Petitioner advised the
Employer of its majority claim and requested a
negotiation meeting, and on December 6 filed the
petition herein. On December 8, the Employer
refused the Petitioner's request for a meeting
because of its 1966 contract with the Intervenor.
The Employer and the Intervenor contend that
the 1966 contract bars the petition under an excep-
tion to the premature extension rule, since the prior
contract contained a discriminatory seniority provi-
untimely, irrelevant, extrinsic, and an offer of opinion rather than fact. in
these circumstances , we admit these documents into evidence and have
considered them, as well as the Petitioner's reply thereto.
4 The Employer moved to dismiss the petition on the additional grounds
that (I) the Hearing Officer erred in overruling the Employer 's motion for
continuance until such time as the Board has resolved the issues raised in
unfair labor practice charges filed by the Intervenor against the Employer
in Case 14-CA-4222; and (2) the employees in the requested unit are
estopped to deny the existence and binding effect of the contract asserted
as a bar because they have accepted the benefits thereof. The motions are
denied . As to ( 1), the alleged violations involved in the CA case are re-
lated, at least in part, to the unresolved question of representation of em-
ployees of the Employer involved herein. Krist Gradis, et al., 121 NLRB
601, 615. As to (2), the Board has held that such considerations do not af-
fect cases such as this involving the applicability of the Board's premature
extension doctrine . Thos. & Geo. M. Stone, Inc., 120 NLRB 480.
5 59 NLRB 711.
168 NLRB No. 135
982 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Sion and, therefore, would not have barred an elec-
tion.6 The Petitioner contends that the 1966 contract
is a premature extension of the prior contract and
not a bar, for the reason that the seniority provision
of the prior contract was not discriminatory on its
face and , therefore , that contract would have been
valid as a bar.
Under established Board law, the question of
whether or not the seniority provision rendered the
prior contract ineffective as a bar depends on
whether the provision was unlawful on its face, as
the Board will not admit extrinsic evidence in a
representation proceeding to establish its unlawful
nature.7 The Employer and Intervenor base their
contention that the provision was unlawful on Sec-
tion 703(a) of the Civil Rights Act of 1964. How-
ever, that section, as interpreted by the Equal Em-
ployment Opportunity Commission,8 prohibits
separate seniority lists on the basis of sex only
when sex is not a bona fide occupational qualifica-
tion for the job involved. As we are unable to deter-
mine , in the absence of extrinsic evidence, that sex
is not a bona fide qualification for the jobs covered
by the seniority clause, we find that the clause is not
unlawful on its face . 9 In these and all the circum-
stances of this case , we find that the 1966 contract
is a premature extension of the old agreement, and
that no exception to the premature extension rule
should be applied. Therefore, as the Petitioner filed
its petition on December 6, 1966, more than 60, but
less than 90, days before the old contract's termina-
tion date of March 5, 1967, we find that the 1966
contract is not a bar to an election, and accordingly,
the petition was timely.10
4. Appropriate Unit: The Employer contends
that the proposed unit described in the petition is
not appropriate in that it differs from the unit cer-
tified by the Board. However, the Petitioner stated
at the hearing that its intention was to describe the
unit as it is now, and that it wished to participate in
an election in the certified unit should the Board
find that description the appropriate one. As there
are no substantial differences between the certified
and contract units, we find the certified unit ap-
propriate and shall direct the election therein.
Accordingly, we find that the following em-
ployees constitute an appropriate unit for purposes
8 In Deluxe Metal Furniture Co., 121 NLRB 995, the Board held that
a contract is prematurely extended if, during its term , the parties execute
an amendment or a new contract that extends the existing contract term,
except where executed at a time when the existing contract would not
have barred an election because of other contract-bar rules
' See Paragon Products Corp , 134 NLRB 662.
8 See Section 1604.2 of the Equal Employment Opportunity Commis-
sion ' s Guidelines on Discrimination Because of Sex.
Y We do not read the Opinion Letter of July 18 , 1967 , to which our con-
cumng colleague refers in his separate opinion , as expressing a position
inconsistent with this finding Whether it is desirable to revise the Deluxe
rule in the manner proposed by our colleague , we reserve for decision in
of collective bargaining within the meaning of Sec-
tion 9(b) of the Act:
All employees at the Employer's St. Louis,
Missouri, plant , including warehouse em-
ployees, chauffeurs, elevator operators, and
power plant employees, but excluding office
and clerical employees, foremen, assistant
working foremen, the chief engineer, profes-
sional employees, guards, and supervisors as
defined in the Act.
[Direction of Election" omitted from publica-
tion.]
Member Zagoria, concurring:
I disagree with my colleagues' conclusion that the
seniority provision in question was not discrimina-
tory on its face. Not only do I read the provision as
discriminatory, but here both the Employer and the
Intervenor have also indicated this by agreeing that
sex is not a bona fide occupational qualification,
and in addition the Equal Employment Opportunity
Commission, in an opinion letter of July 18, 1967,
stated that the provision violates section 703(a) of
the Equal Employment Opportunity Act and sec-
tion 1604.2 of the Commission's Rules and Regula-
tions.
I disagree with the rule of Deluxe Metal Products
which permits an incumbent union to remove an il-
legal clause, at the same time extend the contract
beyond the open period and use this contract as a
bar to an election. While removing an illegal provi-
sion is a worthy objective at any time, I do not be-
lieve it should be converted into a vehicle to deny
a substantial group of employees the right to deter-
mine a majority choice of union representative. The
Deluxe Metal rule prevents certainty and, predict-
ability of appropriate times for outside unions to at-
tempt to gain exclusive representative status by a
Board election. It also enables an incumbent, by
having an illegal provision in its contract, to freeze
out an outside union by the simple device of delet-
ing the illegality and extending the term of its con-
tract when an outside union starts to organize. I
agree that deletion of an illegality should, as it does,
suffice to reconstitute a contract as a bar for the
remainder of its term.
a case where the Board is presented with a contract clause unlawful on its
face
10 Leonard Wholesale Meats , Inc., 136 NLRB 1000.
II 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 14 within 7 days after 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 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 . Excelsior Underwear
Inc. 156 NLRB 1236.