Baldwin Auto Co., Inc.

National Labor Relations Board - Board Decisions

Aug 14, 1969

178 N.L.R.B. 88 (N.L.R.B. 1969)

88 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Baldwin Auto Company , Inc and Local 259 United
Automobile Workers, Petitioner Case 29-RC-1029
August 14, 1969
DECISION ON REVIEW AND
DIRECTION OF ELECTION
By MEMBERS FANNING, JENKINS, AND ZAGORIA
On September 16, 1968, the Regional Director for
Region 29 issued a Decision and Order in the
above-entitled proceeding in which he found the
petition barred by the current contract between the
Employer and the Intervenor, Amalgamated Local
Union 355, concluding on the evidence that the
Petitioner had not been able to support its
contention that such contract is a premature
extension of the antecedent contract with respect to
which its petition had been timely filed The
Petitioner thereafter filed a timely request for review
on the grounds that the Regional Director erred in
finding (1) that the current contract was not shown
to be a premature extension, and (2) that, in any
event, the current contract, by reason of its broad
mid-term modification provision, did not satisfy the
requirements of Appalachian Shale Products Co ,
121 NLRB 1160 The Intervenor filed opposition to
the request for review The Regional Director
decided to treat the Petitioner's second ground for
seeking review as a motion for reconsideration and
on November 6, 1968 issued a Supplemental
Decision and Order in which he rejected the
contention No request for review was filed with
respect to the Supplemental Decision
On June 10, 1969, the National Labor Relations
Board, by telegraphic Order, granted the Petitioner's
request for review of the Regional Director's finding
that the existing contract is not a premature
extension
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
Board has delegated its powers in connection with
this case to a three-member panel
The Board has considered the entire record with
respect to the issue under review and makes the
following findings
The Employer is a retail automobile dealer The
Petitioner seeks an election in a unit of its
approximately 9 service department employees
currently represented by the Intervenor The
Employer and the Intervenor have a contract
covering such unit, effective from its July 26, 1967,
execution date to August 1, 1970, which contract
they interpose as a bar to the petition The
Petitioner contends that its petition, filed May 24,
1968, was timely with respect to an antecedent
contract, effective from October 25, 1965, through
July 31, 1968, and that the current agreement, under
the Board's premature extension doctrine was
inoperative as a bar As above indicated, the
Petitioner contends that the Regional Director erred
in concluding from the record that the existing
contract was not shown to be a premature extension
of the antecedent agreement
In support of its contention, the Petitioner
introduced in evidence a copy of the contract which
it alleges was antecedent to the current contract
advanced as a bar Puchelt, the present shop steward
for unit employees, identified it as a copy of the
antecedent contract which Talkow, the Intervenor's
business agent, gave him when he was elected shop
steward in 1965 or 1966 Puchelt testified that when
Talkow gave him the document he said "this is the
contract " Puchelt further testified that, in response
to his request, Talkow had two meetings with unit
employees for the discussion of their grievances or
any changes they wished to make in the contract
prior to the negotiations due in June pursuant to the
broad reopening clause of the contract, and that he
participated in some of the negotiations (using the
copy of the contract introduced in evidence by the
Petitioner as his working copy)' on the assumption
that the negotiations were pursuant to its reopening
clause Finally, he testified that when he received a
copy of the current contract in the mail he read it
through and noted that some changes had been
made which were not included in the negotiations,
specifically, that nothing had been discussed in those
negotiations pertaining to the extension of the
contract to 1970 2
The Intervenor introduced in evidence a contract
which it asserts is a duplicate of the original
antecedent contract, and which, unlike the copy
relied on by the Petitioner, has an expiration date of
July 31, 1967, and has no mid-term reopening
clause It was testified that this duplicate was
prepared at the Employer's request as a replacement
for its copy of the original which was lost or
misplaced The duplicate admittedly was signed
after the filing of the instant petition Although the
Intervenor asserts that the duplicate is the same as
the original in its files, the latter was not introduced
in evidence We note that the provision for broad
reopening on July 1, 1968, in the current 3-year
contract is identical in language to that contained in
the copy of the antecedent contract introduced in
evidence by the Petitioner
Upon the foregoing and the entire record in this
case, we believe the Intervenor has not satisfactorily
controverted the Petitioner's evidence that the July
'Puchelt testified that certain markings on the document were placed
there by him to indicate questions or grievances which employees wished to
have resolved in the negotiations He further testified that certain crossed
out articles in the body of the contract (i e article XII-Welfare funds
article X I I l -United Welfare) Fund - Security Division andd article X V I-
Vacations paragraph a) were crossed out when he received the copy of the
contract
'The Intervenors business representative Talkow in his testimony said
he did not believe he gave Puchelt a copy of the antecedent contract but
may have given one to the shop steward before him He also testified that
Puchelt was present during 1967 negotiations on the subject of contract
duration However his recollection of events occurring in 1966 and 1967
was admitted by him to be unclear
178 NLRBNo 37
BA L D W'I N AU TO. CO. 89
26, 1967, contract was a premature extension of the
antecedent agreement. In so finding, we note that
the copy of the earlier contract introduced by the
Petitioner to support its contention was the best
evidence available to it, and the Intervenor's steward
testified he had been given that copy by the
Intervenor for his use in negotiations and handling
grievances. On the other hand, the copy introduced
by the Intervenor was not the original, but a
replacement for the Employer's lost copy signed
after the filing of the petition. In these
circumstances, we are constrained to rely on the
document introduced by the Petitioner as the
accurate copy of the underlying contract, and find
that the July 26, 1967, contract relied on by the
Employer and Intervenor was a premature extension
of the earlier contract. As the petition was timely
filed with respect to the termination date of the
underlying contract, we find there is no contract bar
to an election.
Accordingly, we find that a question exists
concerning the representation of certain employees
of the Employer within the meaning of Section
9(c)(1) and Section 2(6) and (7) of the Act, and that
the following employees of the Employer constitute
a unit appropriate for the purposes of collective
bargaining within the meaning of Section 9(b) of the
Act:
The following employees of the Employer
constitute a unit appropriate for the purposes of
collective bargaining within the meaning of Section
9(b) of the Act:
All shop employees in the service department at
the Employer's location in Baldwin, New York,
excluding all other employees, including office
clericals, new and used car salesmen, watchmen,
guards and supervisors as defined in the Act.
[Direction of Election' omitted from publication.]
'In order to assure that all eligible voters may have the opportunity to
be informed of the issues in the exercise of their statutory right to vote, all
parties to the election should have access to a list of voters and their
addresses which may be used to communicate with them . Excelsior
Underwear Inc.. 156 NLRB 1236; N.L.R.B. v. Wyman-Gordon Company,
394 U.S. 759. Accordingly, it is hereby directed that 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 29 within 7
days of the date of this Decision on Review 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.