Boise Cascade Corp.

National Labor Relations Board - Board Decisions

Sep 26, 1969

178 N.L.R.B. 673 (N.L.R.B. 1969)

BOISE CASCADE CORPORATION
Boise Cascade Corporation and United Papermakers
and Paperworkers , AFL-CIO, Petitioner. Case
8-RC-7409
September 26. 1969
DECISION AND ORDER
By CHAIRMAN MCCULLOCH AND MEMBERS
FANNING AND JENKINS
Upon a petition duly filed under Section 9(c) of
the National Labor Relations Act, as amended, a
hearing was held on April 4. 1969, before Donald E.
Howard, Hearing Officer. On May 6, 1969, the
Regional Director for Region 8 transferred the case
to the National Labor Relations Board. Thereafter,
the Employer, the Petitioner, and the Intervenor'
filed briefs.
Pursuant to the provisions of Section 3(b) of the
Act, the Board had 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 prejudicial error. They are hereby
affirmed.
Upon the entire record in this case, including the
briefs and statements of the parties, the Board finds:
1. The Employer is engaged in commerce within
the meaning of the Act and it will effectuate the
purposes of the Act to assert jurisdiction herein.
2. The labor organizations involved claim to
represent certain employees of the Employer.
3. The issue is whether a question affecting
commerce exists concerning the representation of
employees of the Employer within the meaning of
Sections 9(c)(1) and 2(6) and (7) of the Act.
The Petitioner contends that the contract between
the Employer and the Intervenor covering an
expanding production and maintenance unit in a
new plant, executed on the date the Petitioner
requested recognition and filed an election petition.
does not bar the petition. The Employer and the
Intervenor contend that the, number of employees
and job classifications in the unit have not so
significantly increased from the date of execution of
the contract as to remove the contract as a bar.
They further contend that the Petitioner's request
for recognition and filing of the petition on the same
day the contract was executed do not remove the
contract as a bar.
The Employer began hiring on January 3, 1969,
and started production on January 29 in its new
corrugated-paper container plant in Marion, Ohio.
On February 4, the Intervenor requested recognition
on the basis of seven signed authorization cards out
of an employee complement of eight on that date.
The Employer signed a letter of recognition on the
'International Brotherhood of Pulp . Sulphite and Papermill Workers,
AFL-CIO, herein referred to as Intervenor.
673
same day. The Petitioner began soliciting cards on
February 10 and by February 11 had enough to
support the filing of a petition. The Employer and
the Intervenor began bargaining on February 10,
and on February 12 reached agreement. Between
2:30 and 3:30 p.m. on the latter date, they signed a
contract. Meanwhile, at 3.30 a.m. on February 12,
the Petitioner sent a telegram to the Employer
expressing an interest in the plant and requesting
recognition as the bargaining agent. Also, at noon
on February 12, it filed the instant petition at the
8th Regional Office (Cleveland). The Employer
received the telegram at about 9 a.m. that morning
but, having previously recognized the Intervenor,
continued negotiating with it. and executed the
above-mentioned contract with the Intervenor
effective as of that date. The telegram made no
mention of the Petitioner' s intention to file a
petition F. W. Lackey, the Employer's
representative who executed the contract, was
unaware of the Petitioner' s interest in representing
the employees until the morning of February 12,
when he received the Petitioner's telegram
requesting recognition, and he was unaware of the
filing of the petition until he received notice thereof
by mail the following day, February 13.
On February 12, the execution date of the
contract, there were nine production and
maintenance employees employed in eight job
classifications. There are 29 job classifications listed
in Exhibit A of the contract. On April 4, the date of
the hearing, there were 23 production and
maintenance employees employed in 15 job
classifications. The Employer is planning to add
three or four more employees by October and hopes
to achieve full productive capacity with 80
employees in 2 to 3 years. The Employer's
representative testified that they will never use some
of the classifications listed in the contract at this
plant.
The Petitioner first contends that under the
General Extrusion rule,' the contract cannot bar the
petition because the required number of employees
employed and job classifications in existence on the
date of contract execution were insufficient as
compared with the number employed and
classifications in existence on the date of the
hearing. The rule requires that, in order for a
contract to be a bar, 30 percent of the number of
employees employed and 50 percent of the number
of job classifications in existence on the date of the
hearing must have been employed and in existence
on the date of contract execution. Since there were
nine employees listed in eight job classifications on
the contract execution date as compared with 23
employees listed in 15 job classifications on the
hearing date, it is evident that. using these figures
alone. the requirements of the General Extrusion
rule are satisfied.
'Genera( Extrusion Company. Inc. 121 NLRB 1165.
178 NLRB No. 106
674 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
But the Petitioner contends that since Exhibit A
of the negotiated contract lists 29 classifications and
since several of the employees fill at least six
unmanned classifications on a part-time basis, there
actually were at least 21 or even 29 different
classifications "in existence" on the hearing date,
and the contract must fail as a bar because of the 50
percent requirement. We do not agree. The "in
existence" rule was intended to assure that a
representative number of fob classifications were
occupied at the time the contract was made, in
order to allow workers performing different
functions, with possibly conflicting interests, to he
heard from. The fact that the employees here, who
are on the payroll in single classifications only and
are paid only the rates of those classification, may
occasionally be doing other sorts of work is an
irrelevant consideration. as well as being
impracticable in application, in determining the
comparison of jobs "in existence " Similarly, the
other unfilled classifications listed in the negotiated
contract can not properly be considered jobs "in
existence
Secondly, the Petitioner contends that there is no
contract bar here because the Employer was
admittedly informed of the Petitioner's interest and
request for recognition by the Petitioner's telegram
delivered to the Employer at about 9 a m. on
February 12, at a time before the contract was
executed between 2.30 and 3:30 p.m. on February
12. Also. the Petitioner filed its petition at noon on
February 12 before the contract was executed. In
support of its position, the Petitioner cites East
Texas Pulp and Paper Co..' Portland Associated
Morticians,' and Rappahannock Sportswear Co.,
Inc.'
At the outset. it should be noted that, under the
applicable principle declared in Deluxe Metal," a
rival petition filed on the same day that a contract is
executed is not timely filed, unless the employer
knew that the petition had been filed at the time it
executed the contract. Since the Employer here was
only informed of the Petitioner's representative
interest and not of the filing of the petition at the
time it executed the contract, the petition must fail
because of this requirement. The Petitioner
contends, however, citing East Texas Pulp and
Paper Co , supra, that the employer's knowledge of
the Petitioner's claim to representation as the
bargaining agent and the fact of the Petitioner's
filing of the petition before execution of the contract
are sufficient to deteat the contract. This contention
is based on the rule in General Electric X-Ray,'
which held that a bare claim made before the
contract was executed would remove the contract as
a bar where a petition is filed within 10 days
following the claim. However, X-Ray is no longer
good law because, in Deluxe Metal, the Board
'I 13 NLRB 539, 541-42
'163 NLRB 614
'163 NLRB 703
"decided to eliminate the X-Rai rule and to require
instead [of a bare claims the filing of a petition with
the Board at an appropriate time."'
But the Petitioner argues that, as an exception to
the Deluxe Metal rule, a telegraphic notice of a
claim to representation rights has been held to
prevent a subsequently signed contract from barring
an election even though the employer did not receive
notice of the filing of the petition until after the
contract was executed. In support of this contention,
the Petitioner cites the Portland Associated
Morticians, Inc , and the Rappahannock Sportswear
Co., Inc. cases. In the Rappahannock case, the
petitioner telegraphed the employer demanding
recognition and advising it that a "petition is
simultaneously being filed with the . . . Board," and
the next day, after the employer received the
telegram, but about 2 hours before the Board
received the petition, the employer executed the
contract with a rival union. The Board held that the
contract was not a bar. This case is distinguishable
in that, as the Board held, the employer was, within
the meaning of' Deluxe Metal, "informed' of the
petitioner's filing of a petition before it signed the
contract with the other union.
In the Portland case, the employer's attorney
knew of the petitioner's interest and admittedly
expected that a petition might be filed, but went
ahead and dictated a draft of the contract for
signature of the incumbent union 's representative
and left his office at about 1.40 p.m., telling his
secretary to notify the incumbent that the contract
was ready for signature. The incumbent's
representative signed the contract at about 2 p.m.
When the attorney returned at about 5:40 p.m., he,
too, signed the contract. He then went into his
reception room and there found a telegram from the
petitioner, received at about 4 p.m.. advising him
that the petitioner had filed its petition, which had
actually been filed at about noon on the same day.
The Board held that the contract was not a bar.
This case, too, is distinguishable, since the Board
held that the receipt of the telegram at the
attorney's office before he executed the contract
constituted constructive notice to the employer of
the filing of the petition.
Thus, in the above cases, the employer had either
actual or constructive knowledge of' the petitioner's
filing of its petition before the employer executed
the contract.
In the present case, since the Employer only had
knowledge of the Petitioner's telegraphic bare claim
when it executed the contract, we find that the
petition is subject to dismissal under the test of
Deluxe Metal, which held that a hare claim of
'Deluxe Metal Furniture Conzpanv , 121 NLRB 995, 999 "Such a
contract will bar an election if it is effective immediately or retroactively
and the employer has not been informed at the time of execution that a
petition has been riled "
'67 NLRB 997
'121 NLRB 995, 998
BOISE CASCADE CORPORATION' 675
representation is not sufficient to remove the ORDER
contract as a bar. We shall therefore dismiss this
petition on the ground that the contract is a bar to It is hereby ordered that the Petitioner's petition
the petition and, therefore. no question affecting for a unit of production and maintenance employees
commerce exists concerning representation within at the Employer's plant in Marion, Ohio, be, and it
the meaning of Section 9(c)(1) and Section 2(6) and hereby is, dismissed.
(7) of the Act.