Cind-R-Lite Co.

National Labor Relations Board - Board Decisions

Jan 9, 1979

239 N.L.R.B. 1255 (N.L.R.B. 1979)

CIND-R-LITE CO.
Cind-R-Lite Co., a Division of T. E. Connolly, Inc.
and Kevin Ledbetter, Petitioner and Teamsters Lo-
cal Union 631, International Brotherhood of Team-
sters, Chauffeurs, Warehousemen & Helpers of
America. Case 31-RD-502
January 9, 1979
DECISION AND DIRECTION OF ELECTION
BY CHAIRMAN FANNING AND MEMBERS JENKINS
AND PENELLO
On May 16, 1978, the Regional Director for Re-
gion 31 issued a Decision and Order in the above-
entitled proceeding, in which he dismissed the peti-
tion herein, finding the petition to be barred by an
existing contract. Thereafter, in accordance with Sec-
tion 102.67 of the National Labor Relations Board
Rules and Regulations, Series 8, as amended, the
Employer filed a timely request for review of the Re-
gional Director's decision, contending that the ex-
isting contract between the Employer and the Union
did not serve as a bar to the instant petition.
On June 30, 1978, the Board issued its ruling on
administrative action in which it reinstated the peti-
tion and remanded the case to the Regional Director
for the purpose of a hearing. Pursuant to the Board's
ruling, a hearing was conducted in this matter on
August 11, 1978. On August 25, 1978, pursuant to
Section 102.67 of the Board's Rules and Regulations,
this proceeding was transferred to and continued be-
fore the Board by the Regional Director. Thereafter,
the Employer filed a posthearing brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the entire record in this
case with respect to the issues under review, includ-
ing the Employer's posthearing brief, and concludes,
contrary to the Regional Director, that there was no
contract bar to the instant petition. Therefore, an
election will be directed.
The petition herein was filed on April 6, 1978, by
Kevin Ledbetter, an employee, seeking decertifica-
tion of the bargaining representative, Teamsters Lo-
cal Union 631, International Brotherhood of Team-
sters, Chauffeurs, Warehousemen & Helpers of
America, at the Employer's Las Vegas, Nevada, fa-
cility. The Regional Director dismissed the petition
as untimely, finding that it was filed at a time when a
signed contract was in effect and that such contract
operated as a bar to an election in this case, citing
Valley Doctors Hospital, Inc., d/b/a Riverside Hospi-
tal' and Mallinckrodt Chemical Works.'
In its posthearing brief, the Employer has contend-
ed that its contract proposal of April 5, 1978, cannot
bar the instant petition because it lacks on its face a
definite term of duration. We find merit in the
Employer's argument that there is no contract bar
under the principles set out in Appalachian Shale
Products Co.3 and Pacific Coast Association of Pulp
and Paper Manufacturers.4 Accordingly, we shall di-
rect an election in the petitioned-for unit.5
The Employer, a Delaware corporation, is engaged
in the manufacture of light-weight concrete block at
its factory in Las Vegas, Nevada. The Employer and
the Union herein had a collective-bargaining agree-
ment with an expiration date of April 1, 1978. After
the expiration of their 3-year contract, they contin-
ued their efforts to reach a new agreement. On April
4, 1978, the Employer submitted a final written offer
containing proposed amendments to the expired con-
tract. The proposal provided, inter alia, for three an-
nual wage increases beginning on April 1, 1978, 1979,
and 1980, and that all agreed-to provisions would be
retroactive to April 1, 1978. The proposal had no
stated termination date. On April 5, 1978, the em-
ployees at Cind-R-Lite and WMK Builders Products
en masse ratified 6 the terms and the union represen-
tatives signed the Employer's proposal. Thereafter,
on April 19, 1978, the parties executed a formal
agreement which specifically provided for a 3-year
term from April 1, 1978, until March 31, 1981. In the
formal document, certain changes were made in the
language of the signed proposal, to wit: the title of
the contract, a change in the method of computing
pay for vacations, and the substitution of the word
"reasonable" for the word "any" as the modifier of
the rules which the Employer had the right to estab-
lish.
Meanwhile, on April 6, 1978. the instant petition
was filed, which the Regional Director dismissed on
222 NLRB 907 11976)
200 NL RB 1 (1972)
121 NLRB 1160 11958)
4 121 Ni RB 990 (1958)
Ihe parties stipulated that the following job classifications would he
included: hatch plant operators. machine operators, mixermen. material
men. truckdrivers. mechanics, forklift operators, and general laborers. They
also stipulated to the following exclusions: office clerical employees. guards,
and superslsors as defined In the Act
We reject the Union's contention that the employer is a member of a
multiemplo)er bargaining group along with WMK Builders Products The
fact that the same representative negotiated contracts for both employers
does not by itself establish a multiemployer bargaining relationship. Fxami-
nation of the contracts in evidence indicates that the agreements were sepa-
rate Furthermore. the April 5 proposal specifically stated that the 'nion
rerresented the eniplosees of the two employers individually
the Employer argues that the ratification was improper because only 8
of the 22 (ind-R-l.ite sworkers participated. and there is no way of telling
how those 8 workers voted It is unnecessair, to decide this issue because the
contract was incomplete as a bar for the reasons discussed infra
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the ground that on April 5, 1978, the Union had
signed the written proposal submitted by the Em-
ployer which set forth the changes in the expired con-
tract. In making this determination, the Regional Di-
rector relied on Valley Doctors Hospital, supra, which
holds that an exchange of letters showing an offer
and acceptance of a proposal constitutes a contract
which will bar a subsequent petition.
To serve as a bar to a petition, a contract must
contain substantial terms and conditions of employ-
ment deemed sufficient to stabilize the bargaining re-
lationship.7 It is well settled that the expiration date
is one of those "substantial terms" and that contracts
having no fixed duration shall not be considered a
bar for any period.8 Thus, it is required that the expi-
ration term must be apparent from the face of the
contract without resort to parol evidence, before the
contract can serve as a bar.9
In the instant case, the proposal admittedly had no
stated expiration date. The fact that it provided be-
ginning dates for three annual wage increases, with-
out more, fails to give it a fixed terminal date because
Appalachian Shale Products Co.., supra at 1163.
Pacific Coast Association of Pulp and Paper Manufacturers, supra at 993.
Joseph Busa.acchi. et at., d/b/a Union Fish Company. 156 NLRB 187. 192
(1965), citing Benjamin Franklin Paint d Varnish Co. Division of United
Wallpaper, Incorporateda 124 NLRB 54 (1959), and cases cited therein
the last annual wage increase could continue indefi-
nitely.' 0
Therefore, contrary to the finding of the Regional
Director, we find that the contract lacked an expira-
tion date at the time the instant petition was filed,
and therefore could not serve as a bar.
Accordingly, we find that an election should be
directed in the following unit to determine whether
the employees of Cind-R-Lite Co., a Division of
T. E. Connolly, Inc., wish to continue to be repre-
sented by Teamsters Local Union 631, International
Brotherhood of Teamsters, Chauffeurs, Warehouse-
men & Helpers of America, or no union:
All batch plant operators, machine operators,
mixermen, material men, truckdrivers, mechan-
ics, forklift operators, and general laborers em-
ployed by the Employer at its Las Vegas, Ne-
vada, facility; but excluding all other employees,
including office clerical employees, guards and
supervisors as defined in the Act.
[Direction of Election and Excelsior footnote omit-
ted from publication.]
C (Cf. Cooper Tire and Rubber Compang., 181 NLRB 509 (1970), where the
contract stated that it would be "effective from --- 1968 . . . until
1971," and provided for three annual wage increases on September
1, 1968, 1969, and 1970. The Board held that as the contract specifically
provided for a duration span of 3 consecutive years (with the day and
month omitted) and also set forth the effective day, month, and year of the
three annual wage increases, the contract on its face could reasonably be
construed as having a 3-year term, effective September 1, 1968.
1256