Consolidated Novelty Co., Inc.

National Labor Relations Board - Board Decisions

Oct 30, 1970

186 N.L.R.B. 197 (N.L.R.B. 1970)

CONSOLIDATED NOVELTY CO., INC.
Consolidated Novelty Company, Inc. and District 154,
International Association of Machinists and
Aerospace Workers, AFL-CIO, Petitioner.
Case-RC-8321
October 30, 1970
DECISION AND DIRECTION OF ELEC-
TION
CHAIRMAN MILLER AND MEMBERS BROWN
AND JENKINS
Upon a petition duly filed under Section 9(c) of the
National Labor Relations Act, as amended, a hearing
was held before Hearing Officer Douglas J. Muir. On
June 16, 1970, the Regional Director for Region 9
issued an order transferring this case to the National
Labor Relations Board. Thereafter, the Employer and
the Intervenor filed briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a three-member
panel.
The Board has considered 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, 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 i involved claim to
represent certain employees of the Employer.
3. A question affecting commerce exists concern-
ing the representation of the employees of the
Employer within the meaning of Section 9(c)(1) and
Section 2(6) and (7) of the Act.
The Employer and the Intervenor contend that the
petition should be dismissed because the contract is a
bar to an election. The facts show that the Petitioner
and the Intervenor have had contractual relationship
since 1951 at the Employer's Patterson, New Jersey,
plant, and since 1957 at the Employer's Amsterdam,
New York, plant. The employees engaged in the
Employer's manufacture of artificial Christmas trees
at the Patterson and Amsterdam plants (i.e., all unit
employees herein) have been represented by the
Intervenor. In late May or early June 1969, the
Employer decided to move its Patterson Christmas
tree operation to Mayfield, Kentucky, and so in-
formed its employees, offering them continued
197
employment and assistance in the move. None of the
employees moved.
Production was begun at the Mayfield plant at
about the middle of August 1969. A contract covering
the Mayfield plant was executed by the Employer and
the Intervenor. The Preamble of the contract opens:
"Agreement made this 13th day of June 1969..
and states:
WHEREAS, because of serious economic condi-
tions the Employer has not been engaged in
production in Patterson, New Jersey approximate-
ly six (6) months.
WHEREAS, it becomes necessary to relocate
production facilities.
NOW, THEREFORE, the parties hereto mutually
agree. . . .
The Intervenor contends that the contract, though
dated June 13, 1969, was negotiated by July 22, 1969,
and signed around August 15, 1969. However, there is
no date other than June 13, 1969 appearing in the
contract and no indication of retroactivity from some
later date of execution. There was a substantial
change in the number of employees at Mayfield
between the written June 13 contract date and the
alleged August 15 execution date. The Employer had,
at most, 7 employees through June and July 1969, and
hired over 100 people during the first 2 or 3 weeks of
August when it began production.
We find no merit in the contentions of the Employer
and the Intervenor that the contract is a bar to an
election. The agreement provides that it was made
June 13, 1969, by which time the Employer had hired
at most seven employees, so that at the time of
contract execution the Employer did not have 30
percent of its anticipated complement. The conten-
tion that the contract was executed on August 15,
1969, retroactive to July 13 or 14, 1969, is irrelevant as
the Board has held as a general rule that where the
meaning of contract terms is clear such terms cannot
be varied by reference to extrinsic matters.2 More
specifically, the Board has held that parol evidence
that would vary the execution date plainly set out in a
contract is inadmissible to establish the contract as a
bar.3 Under these circumstances, it is clear that there
is no merit to the Employer's contention that the new
contract was executed when it had a substantial and
representative complement and is a bar for that
reason under General Extrusion.4 Nor is there merit in
the Employer's alternative position that the contract
is a bar because it is an extension of its New Jersey
contract to the relocated plant, since such an
extension does not bar a petition unless, as is not the
i United Service Employees Union , Local 377, RWDSU , AFL-CIO,
was permitted to intervene based on its contractual interest.
2 Lindmart Jewelry Mfg Co. 119 NLRB 651, fn 2.
3 Lion Brand, Inc, 131 NLRB 196, 197
4 General Extrusion Co, Inc., 121 NLRB 147
186 NLRB No. 51
198 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
fact here, a considerable proportion of the employees
were transferred.5
4. The parties stipulated, and we find, that the
following employees constitute a unit appropriate for
the purposes of collective bargaining within the
meaning of Section 9(b) of the Act:
All production and maintenance employees em-
ployed by the Employer at its operation in
Mayfield , Kentucky, excluding all office clerical
employees , all professional employees and all
guards and supervisors as defined in the Act.6
[Direction of Election 7 omitted from publication.]
5 Montville Warehousing Company, Inc., 158 NLRB 952, 954; Arrow
Company, 147 NLRB 829.
6 An issue arose at the hearing with regard to the inclusion and
eligibility of laid -off employees , should an election be directed . The record
indicates that the Employer 's artificial Christmas tree operation in
Mayfield, Kentucky , is seasonal , with peak employment from September
through December each year . The Petitioner urged that only those
employees on an eligibility list submitted by the Employer for an election
should be eligible to vote . The Intervenor argued that all laid-off employees
with a reasonable expectancy of recall should be included . The Employer
took the position that only employees who had not found other work
should be entitled to vote . As we are directing an immediate election which
will be held at peak season , the contentions of the parties as to the
inclusion and eligibility of laid -off employees are not relevant.
7 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.LR.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 9 within 7
days of the date of this Decision 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.