Armstrong Cork Co.

National Labor Relations Board - Board Decisions

Nov 29, 1948

80 N.L.R.B. 859 (N.L.R.B. 1948)

In the Matter of ARMSTRONG CORK COMPANY, EMPLOYER and INTER-
NATIONAL UNION OF OPERATING ENGINEERS, LOCAL 95-95A, AFL,
PETITIONER
Case No. 6-RC-75.-Decided November 29, 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.'
Pursuant to the provisions of Section 3 (b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-man panel consisting of the undersigned Board
Members.*
Upon the 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 labor organizations named below claim to represent em-
ployees of the Employer.
3. The question concerning representation :
The Employer and the Intervenor contend that their contract of
May 1, 1946, as amended, bars this proceeding. The amended con-
tract was effective until May 1, 1948, and automatically renewable
thereafter from year to year unless either party served notice of ter-
mination 30 days before the anniversary date. On February 26,
1948, the Intervenor served the Employer with such notice. On
March 1, 1948, the Petitioner requested recognition as bargaining
agent of the employees here involved, and on March 22, 1948, it filed
'The Employer and Local 255, United Rubber , Cork , Linoleum and Plastic Workers of
America, CIO , hereinafter called the Intervenor , moved to dismiss the petition on the
grounds that : ( a) their contract dated May 1 , 1946, is a bar to this proceeding , ( b) the
filing of the petition was untimely , and (c ) the unit is inappropriate . The hearing officer
referred these motions to the Board. For the reasons hereinafter stated, the motions are
denied.
* Chairman Herzog and Members Reynolds and Gray.
80 N. L. R. B., No. 139.
859
860 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the petition herein. On May 25, 1948, the Employer and the Inter-
venor signed a new contract. As the operation of the automatic re-
newal clause of the amended contract was forestalled by the
Intervenor's notice of February 26, 1948, and as the new contract of
May 25, 1948, was executed after the petition herein was filed, neither
contract bars this proceeding.2
We find no merit in the contention of the Intervenor that the peti-
tion herein was untimely. It argues that Section 8 (d) (1) of the
amended Act advanced the automatic renewal date of its contract
with the Employer from April 1, 1948, to March 1, 1948, and that
therefore the petition was filed too late. We have held, however, that
Section 8 (d) (1) of the amended Act merely defines one aspect of
the obligation to bargain collectively, and does not affect the automatic
renewal provision of an existing collective bargaining agreement.3
Nor do we find merit in the contentions of the Employer and the
Intervenor that the petition should be dismissed because more than
10 days elapsed between the Petitioner's request for recognition and
the filing of its petition. The Board has frequently held that a claim
for recognition asserted more than 10 days before the filing of a peti-
tion by the claiming union is rendered inoperative by a contract ex-
ecuted in the intervening period; but where no contract is executed
until after the petition has been filed, the petition itself prevents the
contract from serving as a bar.4 As the petition herein was filed before
the execution of the contract of May 25, 1948, that contract is not a
bar to this proceeding.
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.
4. The appropriate unit :
The petitioner seeks to represent a unit composed of four shift oper-
ators and four assistant shift operators employed in the Employer's
powerhouse. The Employer and the Intervenor contend that such
a unit is inappropriate, in view of the history of collective bargaining
on a plant-wide basis since 1937.
The shift operators and assistant shift operators are engaged in
operating and maintaining the equipment in the Employer's power-
house, which adjoins the main plant building. They are supervised
by the powerhouse foreman. They are included both in a plant-wide
2 Matter of George S Mepham Corporation, 78 N. L R B. 1081
3 Matter of Crowley's Milk Go, Inc., 79 N . L. It. B. 602 ; Matter of International Har-
vester Co, 77 N. L. It. B. 242.
4 Matter of Heywood Narrow Fabrics Co ., 75 N. L . It. B. 1262.
5 The parties agree that if an election is directed in this case, the substitute assistant shift
operator , who spends 50 percent of his time working in the powerhouse , should be included
in the unit.
ARMSTRONG CORK COMPANY 861
seniority system and, for certain purposes, in a powerhouse seniority
group. There is little interchange of employees between the power-
house and other departments. Although these employees have been
included in a production and maintenance unit since 1937, the Board
has held that a bargaining history on a more comprehensive basis
is not in itself sufficient to deny such a group the opportunity of de-
ciding whether they desire to continue to be represented as part of
a larger unit or to bargain as a separate units As they comprise an
identifiable and homogeneous group,' the shift operators, the as-
sistant shift operators, and the substitute assistant shift operator may
constitute a separate unit if they so desire.
However, R e shall make no final unit determination at this time,
but shall first ascertain the desires of these employees as expressed in
the election hereinafter directed. If a majority vote for the Pe-
titioner, they will be taken to have indicated their desire to constitute
a separate appropriate unit.
DIRECTION OF ELECTION
As part of the investigation to ascertain representatives for the pur-
poses of collective bargaining with the Employer, an election by secret
ballot shall be conducted as early as possible, but not later than 30
days from the date of this Direction, under the direction and super-
vision of the Regional Director for the Sixth Region, 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
voting group described in paragraph numbered 4, above, who were
employed during the pay-roll period immediately preceding the date
of this Direction of Election, including employees who did not work
during said pay-roll period because they were ill or on vacation or
temporarily laid off, but excluding those employees who have since
quit or been discharged for cause and have not been rehired or re-
instated prior to the date of the election, and also excluding em-
ployees on strike who are not entitled to reinstatement, to determine
whether they desire to be represented, for the purposes of collective
bargaining, by International Union of Operating Engineers, Local
95-95A, AFL, or by Local 255, United Rubber, Cork, Linoleum and
Plastic Workers of America, CIO, or by neither.
6 Matter o f United States Gypsum Co. , 79 N. L. R. B. 1282; Matter of American Can Co,
75 N. L R. B. 1127.
* Matter of The Standard Steel Spring Co , 75 N. L . R. B. 471 ; Matter of General Motors
Corp., 74 N . L R. B. 18.