Flint Lumber Co.Download PDFNational Labor Relations Board - Board DecisionsAug 29, 194985 N.L.R.B. 943 (N.L.R.B. 1949) Copy Citation In the Matter of FLINT LUMBER COMPANY, EMPLOY ::R and UNITED DAIRY AND BAKERY WORKERS, LOCAL 383, AFFILIATED WITH RETAIL, WHOLESALE AND DEPARTMENT STORE UNION, CIO, PETITIONER Case No. 7-RC544.-Decided August 29 , 1949 DECISION AND DIRECTION OF ELECTION Upon a petition duly filed a hearing 1 was held in this case on June 13, 1949, at Flint, Michigan, before Francis E. Burger, hearing officer. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed. Upon the entire record in this case, the Board finds : 1. The Employer is engaged in commerce within the meaning of the Act. 2. The Petitioner and United Brotherhood of Carpenters and Join- ers of America, Local 1373, AFL, are labor organizations claiming to represent certain employees of the Employer. 3. The question concerning representation : On March 27, 1945, the Employer and the Intervenor entered into a collective bargaining agreement covering the employees in the unit alleged to be appropriate herein. This contract provided that the Employer would comply with the working rules and conditions of the Saginaw Valley Council of Carpenters, contained union-security pro- visions , and was to remain in effect from year to year unless either party, before the end of any yearly term, gave 65 days' notice of an intention to terminate the contract. On January 26, 1949, the Employer advised the Intervenor by let- ter that it would no longer give effect to the union-security provi- sions of the contract. The Intervenor did not reply to this letter. However, in September 1948, the Intervenor had filed a petition for a union-authorization election under the provisions of Section 9 (e) 3 On May 24 , 1949, the Regional Director consolidated this case for hearing with Case No. 7-RD-48. At the hearing , the Petitioner in the latter case made a motion to with- draw his petition . As no party will be prejudiced by such action , the motion is hereby granted. 85 N. L . R. B., No. 164. 943 944 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (1) of the Act. On March 8, 1949, at an election held pursuant to, this petition, a majority of the eligible employees voted against the. authorization of a union shop. The petition in this case was filed on April 8, 1949. The Employer- and the 'Intervenor contend that their contract is a bar to this pro- ceeding, as the petition was not timely: filed with respect either to the automatic rem>,^ul date or the 1949 expiration date. Without regard. to other questions,' it is our opinion that the union-security provisions, not having been authorized as provided in the amended Act, prevent the contract from operating as a bar.3 . Neither the Employer's letter of January 26, 1949, nor the holding of the March 8, 1949, election,. removes this infirmity. The Employer's letter fails to achieve this end as we have held that the rescission of unlawful union-security provisions in a collective bargaining agreement must be in writing and signed by both parties in,order for the contract to operate as a bar.4 The union-authorization election in which the Intervenor did not se- cure the required employee authorization likewise failed to operate as a rescission of the illegal provisions. In spite of the results of the ,election the parties did not take the a.flirmative steps which we have held to be required to remove the proscribed provisions. The Employer also argues that Section 9 (c) (3) of the Act ° ))re- cludes the Board from directing all election in this case as "a valid election" has been held in the preceding 12-month period. The prior election in this case -'as a union-authorization election under Section 9 (e) of the Act. We do not construe the limitation of Section 9 (c) (3) as applying to Section 9 (e) elections.' Nor do we find merit in the Employer's contention that the employees who voted in the union- authorization election thought they were voting in a representation election to determine whether or not they wanted to be represented by the Intervenor. The election notices and the ballots in that elec- tion made the issue being presented to the employees perfectly clear. 2 There is some question whether the contract did not expire by its own terms because of the.Intervenor's failure to notify the Employer of changes in the working rules during the 1948-49 term. 3 Matte, of C. Hager'S Sons Hinge Manufacturing Company, 80 N. L. R. B. 163. 4 See Matter of Evans Milling Company, 85 N. L. R. B. 391. 5 Ibid. 1" (3) No election shall be directed in any bargaining unit or any subdivision within which, in the preceding twelve-month period, a valid election shall have been held. . . ''Cf. Matter of Gilchrist Timber Company, 76 N. L. R. B. 1233. The Board's reasoning in this case, in which it was argued that no union-authorization election could be held within a year following a representation election , is equally applicable here. See also Matter of Broadway Iron and Pipe Corporation, 83 N. L . R. B. 942 , where the union won a Section 9 ( e) election but executed a contract containing union -security provisions that went beyond the limited degree of union security permitted by Section 8 (a) (3) or authorized by Section 9 (e). Pursuant to a representation petition . filed a few days after the Section 9 (e) election the Board found the contract no bar and, well within the 12- month period , directed an election. FLINT LUMBER COMPANY 94.5 A question affecting commerce exists concerning the representation of employees of the Employer within the meaning of Section 9 (c) (1) and Section 2 (6) and (7) of the Act. 4. All mill department employees at the Employer's Flint, Michi-- -gan, operations, excluding office and clerical employees;: drivers, sales employees, lumber sealers, laborers, yardmen, and supervisors as- defined in the Act, constitute a unit appropriate for the purposes of col- lective bargaining within the meaning of Section 9 (b) of the Act.8 DIRECTION OF ELECTION As part of the investigation to ascertain representatives for the pur- poses of collective bargaining with the Employer, an election by secret ballot shall be conducted as early as possible, but not later than 30 days- from the date of this Direction, under the direction and supervision of the Regional Director for the Region in which this case was heard,. and subject to Sections 203.61 and 203.62 of National Labor Relations Board Rules and Regulations, among the employees in the unit found- appropriate in paragraph numbered 4, above, who were employed dur- ing the pay-roll period immediately preceding the date of this Direc- tion of Election, including employees who did not work during said pay-roll period because they were ill or on vacation or temporarily- laid off, but excluding those employees who have since quit or been discharged for cause and have not been rehired or reinstated prior to the date of the election, and also excluding employees on strike who are- not entitled to reinstatement, to determine whether they desire to be represented, for purposes of collective bargaining, by United Dairy and Bakery Workers, Local 383, affiliated with Retail, Wholesale and Department Store Union, CIO, or by United Brotherhood of Carpen-- ters and Joiners of America, Local 1373, AFL, or by neither.10 8The parties stipulated to the composition of this unit. In accordance with the further `agreement of the parties, we find that an employee who works as a sweeper in the summer months only is a temporary employee, and, therefore, ineligible to vote in the election. ` ° Any participant in the election herein may, upon its prompt request to, and approval. thereof by, the Regional Director, have its name removed from the ballot. 30 Chairman Herzog regards this case as indistinguishable from the Evans Milling case (fn. 4, supra), in which he dissented from what seemed to him as extreme application of the Hager Hinge ( fn. 3, supra ) doctrine . Deeming himself bound by the action of the-. Board in the earlier case , he joins in the decision here. Copy with citationCopy as parenthetical citation