Armstrong Cork Co.

National Labor Relations Board - Board Decisions

Nov 22, 1948

80 N.L.R.B. 566 (N.L.R.B. 1948)

In the Matter Of ARMSTRONG CORK COMPANY, EMPLOYER and GLASS
PACKERS & SORTERS UNION, LOCAL No. 69, AFFILIATED WITH FEDERA-
TION OF GLASS, CERAMIC & SILICA SAND WORKERS OF AMERICA, CIO,
PETITIONER and GLASS BOTTLE BLOWERS ASSOCIATION, MISCELLANE-
OUS DEPARTMENT, LOCAL No. 257, A. F. OF L., INTERVENOR
Case No. 4-R-2712.-Decided November 22, 1948
DECISION
AND
DIRECTION OF ELECTION
Upon a petition duly filed, a hearing was held before a hearing
officer of the National Labor Relations Board. The hearing officer's
rulings made at the hearing are free from prejudicial error and are
hereby affirmed.' The Employer's request for oral argument is hereby
denied, as the record clearly defines the issues in the case and the
respective positions of the parties.
Pursuant to the provisions of Section 3 (b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
1 The hearing officer reserved for the Board ruling upon the Employer 's motion to dis-
miss the petition . The motion is hereby denied.
The Employer based its motion to dismiss upon several grounds. It asserted , first, that
the petition is a nullity and ineffective as a basis for this proceeding. The facts concern-
ing this contention of the Employer are as follows : The petition was originally dismissed
by the Regional Director on January 30, 1948, because of the failure of the Petitioner to
comply with Section 9 ( f), (g), and (h) of the Act, which became effective after the
petition was filed. The Petitioner appealed to the Board from the Regional Director's
dismissal of the petition , and while the petition was thus kept alive by appeal , the Regional
Director withdrew his dismissal on February 12, 1948, stating that the Petitioner had met
the requirements of the Act . The Board , in effect, approved the Regional Director 's action
on February 17, 1948, by referring the petition back to him. The Regional Director then
proceeded to investigate the petition and to direct a hearing thereon.
It is the Employer 's contention that after first dismissing the petition, the Regional
Director was without authority under the published Rules and Regulations of the Board-
specifically, Section 202 . 17 (c)-to withdraw the dismissal , and that the withdrawal was
therefore ineffective under Section 3 of the Administrative Procedure Act which requires
the publication of the organization and procedure of an agency . We find no merit in this
contention . Section 202 . 17 (c) of the Board's Rules and Regulations sets forth the
Regional Director 's authority to dismiss a petition . We are of the opinion that publication
of the Regional Director 's authority to take such action constitutes , by implication , publica-
tion of his authority to withdraw such action. Moreover, the Employer was not in any
manner required to resort to the procedure complained of to protect its rights.
For reasons hereinafter stated, the other grounds upon which the Employer's motion to
dismiss was based are also found to be without merit.
80 N. L . R. B., No. 95.
566
ARMSTRONG CORK COMPANY 567
this case to a three-man panel consisting of the undersigned Board
Members. *
Upon the entire record in this case, the Board finds :
1. The Employer is engaged in commerce within the meaning of
the National Labor Relations Act.
2. The Petitioner and the Intervenor are labor organizations, which
claim to represent employees of the Employer.
3. The Employer and the Intervenor assert a contract executed
between them on June 2, 1947, as a bar to the Petitioner's claim of
representation.
The bargaining relationship between the Employer and the Inter-
venor dates back to 1945. On October 31 of that year a consent elec-
tion, in which the Petitioner and the Intervenor participated, was
conducted among the employees here involved. The Intervenor won
the election, and on December 19, 1945, the Employer and the Inter-
venor entered into a bargaining contract which was to be effective
from September 1, 1945, until August 31, 1947, and thereafter until
a new agreement should be negotiated. The contract provided that
notice of a desire for change of its terms should be given 30 days be-
fore its expiration date and that it could not be opened for any purpose
other than renegotiation of wages prior to that 30-day period.
Amendments concerning wages were made to the contract on April 22,
1946, and September 4, 1946. On June 2, 1947, the Employer and the
Intervenor entered into an amendment to the contract, providing for
a wage increase and the extension of the contract for another term,
from August 31, 1947, to August 31, 1949.
The Petitioner filed its petition on June 10, 1947, and made a claim
upon the Employer by letter on June 11, 1947.
The Petitioner contends that the contract of June 2, 1947, does not
bar its claim to representation because it is a premature extension of
the original contract between the Employer and the Intervenor, and
that the Petitioner's claim was timely made before the period set by
the Employer and the Intervenor for the renegotiation of the original
contract.2 The Employer and the Intervenor argue, however, that the
premature extension doctrine is not applicable to this case because the
contract of June 2, 1947, was executed in good faith, as part of a
Nation-wide pattern followed in the glass container industry of grant-
ing wage increases and extending existing collective bargaining con-
tracts for an additional term. We have previously found that neither
the good faith of the contracting parties nor economic expediency
'Chairman Herzog and Members Reynolds and Murdock.
' Cf. Greenville Finishing Company, Inc., 71 N. L. R. B. 436.
568 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
prompting their action in prematurely extending a contract, renders
inapplicable the doctrine of premature extension.3 We see nothing in
the circumstances of this particular case to warrant a departure from
that doctrine. We find that the contract of June 2, 1947, between the
Employer and the Intervenor does not constitute a bar to a present
determination of representatives.'
We find that a question affecting commerce exists concerning the
representation of employees of the Employer, within the meaning of
Section 9 (c) (1) and Section 2 (6) and (7) of the Act.5
4. The following employees of the Employer constitute a unit appro-
priate for the purposes of collective bargaining within the meaning of
Section 9 (b) of the Act: all miscellaneous employees of the Arm-
strong Cork Company, Millville, New Jersey, including cafeteria
workers, regular part-time employees in the sundry and capping
departments, packers and sorters, testers, checkers and master check-
ers, but excluding machine operators, machine upkeep men, learners
and beginners, journeymen and apprentice mold makers and mold
welders in the mold shop, machinists and machinists apprentices in
the machine shop, outside and yard truck drivers and truck drivers'
helpers and employees in the carton, storage, and warehouse and ship-
ping department, office clerical employees, watchmen 6 and guards,
employees covered by collective bargaining agreements currently in
effect, executives, foremen, and other supervisors as defined in the Act.
DIRECTION OF ELECTION
As part of the investigation to ascertain representatives for the
purposes of collective bargaining with the Employer, an election by
secret ballot shall be conducted as early as possible, but not later than
8 See Blair Limestone Co., 70 N. L. R. B. 689 ; Todd Galveston Dry Docks, Inc., 72
N L R B. 1046.
4 We reject the Employer's contention that the contract is protected by Section 103 of
the Labor Management Relations Act. See National Tube Co., 76 N. L. It. B 1199.
6 We find no merit in the Employer's contentions (1) that the petition should be dis-
missed because the Petitioner failed to comply with the filing requirements of the Act
within a reasonable time and within the time prescribed in Release R-6246 and Release
R-3, and (2) that a current showing of interest by the Petitioner is required because of
the delay between the filing of the petition and the hearing. As we have previously held,
determination of whether a labor organization has complied with Section 9 (f), (g), and
(h) of the Act or has made a sufficient preliminary showing of interest is a matter
purely within the administrative competence of the Board and not subject to challenge
at the hearing. See Lion Oil Co., 76 N. L. R. B. 644 ; Sunray Ott Corp., 76 N. L. R. B. 970.
Our records show that the requirements of compliance and interest have been met by
the Petitioner
6 The watchmen employed by the Employer perform gate duty and night patrol duty.
They are charged with preventing the entrance into or exit from the plant of unauthorized
personnel, vehicles, or packages and with protecting the Employer's property from fire
and theft. We exclude them from the unit in accordance with the provisions of Section
9 (b) (3) of the Act See C. V. Hill & Co., Inc., 76 N. L. R. B. 158.
ARMSTRONG CORK COMPANY 569
30 days from the date of this Direction, under the direction and super-
vision of the Regional Director for the Region in which this case was
heard, and subject to Sections 203.61 and 203.62 of National Labor
Relations Board Rules and Regulations-Series 5, as amended, among
the employees in the unit found appropriate in paragraph numbered
4, above, who were employed during the pay-roll period immediately
preceding the date of this Direction, including employees who did not
work during said pay-roll period because they were ill or on vacation
or temporarily laid off, but excluding employees who have since quit
or been discharged for cause and have not been rehired or reinstated
prior to the date of the election, and also excluding employees on
strike who are not entitled to reinstatement, to determine whether they
desire to be represented, for purposes of collective bargaining, by
Glass Packers & Sorters Union, Local No. 69, affiliated with Federa-
tion of Glass, Ceramic & Silica Sand Workers of America, CIO, or by
Glass Bottle Blowers Association, Miscellaneous Department, Local
No. 257, A. F. of L., or by neither.