Essex County News Co., Inc.

National Labor Relations Board - Board Decisions

Apr 9, 1948

76 N.L.R.B. 1340 (N.L.R.B. 1948)

In the Matter of ESSEX COUNTY NEWS Co., INC., EMPLOYER and
NEWSPAPER AND MAIL DELIVERERS' UNION OF N. Y. & VICINITY,
PETITIONER
Case No. 2-R-7650
SUPPLEMENTAL DECISION
AND
ORDER VACATING DIRECTION OF ELECTION AND DIS-
MISSING PETITION
April 9, 194:8
On December 29, 1947, the Board issued its Decision and Direction
of Election herein." Thereafter, the Employer filed a motion for re-
consideration and for leave to adduce additional evidence, alleging that
the Board's decision was based upon a misconception concerning the
existence of a contract between the Employer and the Petitioner. On
February 3,1948, the Board having considered the Employer's motion
and the Petitioner's opposition thereto, issued an Order reopening the
record and directing that a further hearing be held on this issue.
Pursuant thereto, and upon due notice, a further hearing was held
at New York City, on February 19, 1948, before Herbert C. Kane, hear-
ing officer. The hearing officer's rulings made at such hearing are
free from prejudicial error and are hereby affirmed.
Upon the entire record in the case, the Board makes the following:
SUPPLEMENTAL FINDINGS OF FACT
1. THE QUESTION CONCERNING REPRESENTATION
The Employer has refused to recognize the Petitioner as the ex-
clusive bargaining representative for its return room employees. One
of the Employer's reasons for such refusal, and the one with which we
are here concerned, is that the Petitioner had contractually agreed not
to represent these employees.
On January 2, 1946, the Employer and the Petitioner entered into a
collective bargaining contract which covered all employees engaged in
1 75 N. L. R. B. 697.
76 N. L. R. B., No. 187.
1340
ESSEX COUNTY NEWS CO., INC. 1341
the delivery and handling of newspapers and magazines . The bar-
gaining unit is defined in paragraph 1 of the contract and sets forth
certain job descriptions, with no reference to return room employees.
Paragraph 14 of said contract provides as follows :
Employees in the stock room and in the return department
shall not be under the jurisdiction of the Union; it is further
understood that the cashier shall not be under the jurisdiction
of the Union but that hereafter he shall not handle papers 2
In its original decision the Board found, on the basis of the record
then made, that the above contract had expired. Consequently, it
was not necessary to consider the application of the doctrine enun-
ciated in the Briggs Indiana case,3 which was relied upon by the
Employer in support of its position that the Petitioner was estopped
from seeking an election among the return room employees. The
record of the reopened hearing, however, reveals that the contract
involved has been extended and is still in effect.' In view of the fore-
going, we shall reexamine the contention raised by the Employer.
In the Briggs Indiana case a majority of the Board declined to
make the election machinery of the Act available to a union that sought
to represent a certain group of employees, where the union had agreed,
in a collective bargaining agreement with the same employer, that
such employees would not be accepted for membership. The Petition-
er contends that the above doctrine is not applicable to the present
case. In support of its position, the Petitioner argues that, under
the provision in the contract that the return room employees "should
not be under the jurisdiction of the Union," it agreed to the exclusion
of these employees only insofar as the specific contract was concerned,
and that it did not thereby surrender its right to organize the return
room employees and bargain for them in a separate unit. We cannot
accept this construction. We interpret the foregoing provision as
clearly constituting an agreement by the Petitioner not to represent
the return room employees during the life of the contract. Accord-
ingly, we conclude that the principle of the Briggs Indiana case is
here applicable, and that we should not take affirmative action to,
facilitate the Petitioner's avoidance of its contractual obligations.
2 There is no dispute concerning the interchangeable use of "return room " and "return,
department," and the parties raise no issue with respect to the stock room or the cashier.
8 Matter of Briggs Indiana Corporation , 63 N. L . it. B. 1270
4 On August 22, 1946, the Employer and the Petitioner entered into a supplementary
agreement which provided that the original contract be extended to October 16, 1948. By
a further agreement dated October 9 , 1947 , the parties confirmed such extension.
1342 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
As the 1946 agreement is still in effect, we find that it constitutes a
bar to a present determination of representatives. We shall, therefore,
vacate our prior Direction of Election and dismiss the petitioner.5
ORDER
Upon the basis of the above supplemental findings of fact, the
National Labor Relations Board hereby vacates and sets aside the
Direction of Election heretofore issued in this proceeding and hereby
orders that the petition for certification of representatives of em-
ployees of Essex County News Co., Inc.. Newark, New Jersey, filed by
Newspaper and Mail Deliverers' Union of N. Y. & Vicinity, be, and it
hereby is, dismissed.
MEMBER REYNOLDS took no part in the consideration of the above
Supplemental Decision and Order Vacating Direction of Election
and Dismissing Petition.
5 Although Board Member Houston would entertain the petition herein for the reasons
stated in his dissenting opinion in the Briggs Indiana case, he deems himself bound by
the majority decision in that case.