Foothill Electric Corp.

National Labor Relations Board - Board Decisions

Jun 9, 1958

120 N.L.R.B. 1350 (N.L.R.B. 1958)

1350 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
hereby affirmed. The Board has considered the hearing officer's re-
port, the Employer's exceptions and supporting brief, and the entire
record in the case, and hereby adopts the findings, conclusions, and
recommendations of the hearing officer only to the extent necessary
for our determination herein.
In agreement with the hearing officer, we find no merit in the
Employer's objections. We base our finding on the fact that the
alleged interference of the supervisory employees antedated the
Board's Decision and Direction of Election. Under the Woolworths
rule, the Board has held that it will not consider objections based on
interference occurring prior to the issuance of the Board's Decision
and Direction of Election. In making this policy determination, the
Board did not qualify the principle by making it dependent upon
the objecting party's knowledge of the alleged acts of misconduct.
Therefore, while we have no reason to disagree with the hearing
officer's finding that the Employer had some knowledge of supervisory
activity before the election, the Employer's claim that it had no such
knowledge is immaterial to our determination herein. Accordingly,
as there is no evidence of any interference with the election occurring
within the critical period, we overrule the Employer's objections. As
the tally of ballots shows that the Petitioner received a majority
of all the valid votes cast and as the challenged ballot is insufficient
to affect the outcome of the election, we shall certify the Petitioner.
[The Board certified United Brotherhood of Carpenters & Joiners
of America, AFL-CIO, as the designated collective-bargaining repre-
sentative of all production and maintenance employees at the Em-
ployer's Brunswick, Georgia, concrete products manufacturing plant,
in the unit found appropriate.]
MEMBERS RoDOERs and BEAN took no part in the consideration of
the above Supplemental Decision and Certification of Representatives.
Foothill Electric Corporation and United Steelworkers of Amer-
ica, AFL-CIO, Petitioner. Case No. 9-RC-3g258. June 9,1958
DECISION AND DIRECTION OF ELECTION
Upon a petition duly filed under Section 9 (c) of the National Labor
Relations Act, a hearing was held before Harry D. Campodonico,
hearing officer. The hearing officer's rulings made at the hearing are
free from prejudicial error and are hereby affirmed.',
1 Local Union No. 968, International Brotherhood of Electrical Workers, AFL-CIO, was
permitted to intervene on the basis of its contractual interest in the employees involved.
The request of the Intervenor and the Employer for oral argument is denied. The record,
120 NLRB No. 170.
FOOTHILL ELECTRIC CORPORATION 1351
Upon the entire record in this case, the Board finds :
1. The Employer is a California corporation engaged primarily
in the, business of electrical contracting, which it carries on in nu-
merous States other than California. It maintains a fabricating-
plant in Parkersburg, West Virginia, at which it manufactures electri-
cal equipment. Annually the Employer ships goods valued in excess
of $50,000 from points in one State directly to destinations in other
States. We find that the Employer is engaged in commerce within
the meaning of the Act, and that it will effectuate the policies of the
Act to assert jurisdiction herein 2
2. The labor organizations involved claim to represent certain em-
ployees of the Employer.
3. On September 26, 1956, the Employer and the Intervenor,.,
executed a 1-year contract, containing union-security clauses, which
contract was to be effective from October 1, 1956, to September 30,
1957. The Employer had no employees at the time the contract was
executed. _The Employer made its first shipment of products manu-,
factured at its Parkersburg plant in early July 1957. - Thereafter the
Employer's complement increased to a peak complement of about 315
employees in October 1957. At the time of the hearing the comple-
ment of employees had declined to about 88. In May 1957 the Inter-
venor requested that a card check be conducted under the supervision
of the Mayor of Parkersburg, West Virginia, to determine whether it,
represented a majority of the Employer's employees. Such a check
was made and the mayor certified that of 186 hourly employees, 177
had signed cards with the Intervenor. On July 8,1957, the Intervenor
and the Employer signed a 2-year contract effective immediately and
to be effective until July 7, 1959. This contract contains the identical .
union-security clauses contained in the earlier prehire contract.
Petitioner started its organizing campaign among the Employer's
employees sometime in April or. May 1957. On September 25, 1957,
it advised the Employer by telegram, that it represented a majority
of the Employer's employees and requested a meeting for the purpose
of negotiating a collective-bargaining contract. On September 27,
the Employer sent a letter to the Petitioner acknowledging receipt of
the telegram and advising the Petitioner that the Employer had a
collective-bargaining agreement with the Intervenor effective until
July 7, 1959. The petition was filed on September 27, 1957.3 On
including the briefs and the ' other papers filed in the case , adequately presents the issues
and positions of the parties.
2 The T. H. Rogers Lumber Company, 117 NLRB 1732.
'8 The Intervenor contends that the petition was untimely filed, because filed before the
Petitioner - received the Employer 's letter denying its- request for recognition
. There is
no merit in this contention . See Advance Pattern Copany, 80 NLRB 29. It is sufficient
that Petitioner indicated , as required by the Petition ( NLRB • Form 502 ) that no reply to
its request for recognition had been received from the Employer , and that the Employer
has since refused to recognize the Petitioner , which position the Employer maintained at
the hearing and in its brief.
1352 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
October 18, 1957, the Regional Director dismissed the petition on the
ground that the existing contract between the Employer and the
Intervenor was a bar to an investigation of representatives. On
November 12,1957, Petitioner made a timely appeal from the Regional
Director's ruling, and on February 6, 1958, the Board reversed the
Regional Director and reinstated the petition. A subsequent petition
for reconsideration filed by the Intervenor was denied on March 13,
1958.4
The Intervenor and the Employer contend that application of the
Board's premature extension rules requires dismissal of the petition.
They argue that as the original contract with the Intervenor, was a
prehire agreement it could never serve as a bar to a petition filed at
any time during its term, and that accordingly, as the July 7 agree-
ment was executed prior to the filing of the petition, it constitutes a
bar to the petition.' The Intervenor argues , alternatively, that even
if the July 7 contract be regarded as a premature extension of a valid
contract, it stands as a bar, because the petition was not filed until
after the Mill B date of the original contract.'
It is clear that were this only a question of whether or not the
Board's premature extension doctrine is applicable to the facts of
this case, the July 7 contract would be a bar to the petition which was
not filed until after the Mill B date of the original contract. How-
ever, this is not a question of whether or not the timing of the con-
tracting parties' execution of a second contract was such that the
• The Intervenor takes exception to the manner in which the Board processed Peti-
tioner's appeal from the Regional Director 's dismissal of the petition , pointing out par-
ticularly that the ground on which the Board reversed the Regional Director was not
urged as a basis for reversal by Petitioner , and contending that its rights in this matter
were prejudiced by the seemingly final nature of the wording of the Board 's Assistant
Executive Secretary 's letter advising the parties of the Board 's action. We find no merit
in these exceptions . The Intervenor conceded in its petition for reconsideration that the
Assistant Executive Secretary 's letter demonstrated on its face "full knowledge of the
factual picture with respect to the dates and provisions of both original agreement and
the current agreement ." Where a contract bar issue is raised by the contentions of the
parties, as was the case herein, the Board examines the union -security provisions of the
contracts involved, even where the parties do not cite them as a reason why the contracts
should not be a bar . American Seating Company , 98 NLRB 800 . Moreover, a hearing has
been held , in this case , and the parties were afforded every opportunity to present evidence
and argument , as to why the Board should not hold their contract to be a bar for the
reason stated in the Assistant Executive Secretary 's letter, and in reaching our decision
herein, we have considered the arguments advanced by all parties.
s See Heintz Manufacturing Company, 116 NLRB 183; Westinghouse Electric Corpora-
tion, 116 NLRB 1574 ; Pasco Packing Company, 106 NLRB 1223; Kenrose Manufacturing
Company, 101 NLRB 267 ; Cushman's Sons , Inc., 88 NLRB 121; The Broderick Company,
85 NLRB 708, for instances where the Board found that contracts which were executed
during the term of prior contracts which were not then operative as a bar , constituted a
bar to later filed petitions, even though the petitions were timely filed with respect to 'the
term of the original contracts.
6 Northwestern Publishing Company (WDAN), 71 NLRB 167 ;i Greenville Finishing
Company, Inc., 71 NLRB 436. See also Mississippi Lime Company of Missouri , 71 NLRB
472; International Paper Company, 71 NLRB 1224 ; Habitant Shops, Inc., 72 NLRB 263;
Pillsbury Mills, Inc., 92 NLRB 172; National Foundry Company of New York, Inc.,
109 NLRB 357.
FOOTHILL ELECTRIC CORPORATION 1353
contract should bar a later filed petition. Rather this is, as we see it,
a question of the validity of the July 7 contract for contract bar
purposes. This contract contains union-security clauses identical to
those contained in the original prehire contract between the parties.
The original union-security clauses were invalid because admittedly
entered into at a time when the Employer had no employees, and the
Intervenor, perforce was not the representative of its employees as
provided in Section 9 (a) of the Act, and therefore not authorized to
execute such clauses. The Board has consistently held that the very
existence of unauthorized'union-security clauses, whether or not actu-
ally enforced by the contracting parties "acts as a restraint upon
employees desiring to refrain from union activities within the meaning
of Section 7 of the Act, and is evidence that the Intervenor and the
Employer are in accord in denying employment to those employees
who refuse to join the union within the required time."' In view
of the restraining affect of the unauthorized union-security clauses
in the prehire agreement the mere fact that the Employer and the
Intervenor extended them only after a card check demonstrating
that a majority of the employees had signed authorization cards on
behalf of the Intervenor does not validate such clauses. For it can
not be'said that in such circumstances the employees have freely
selected the Intervenor to act as their representative, and thereby
authorized the reexecution of union-security clauses as provided for
in Section 8 (a) (3). Accordingly, we find that as the July 7 contract
contains unauthorized union-security clauses it is not a bar to the
petition.
The Intervenor and the Employer contend that this holding con-
troverts the Board's well-established policy of not considering matters
pertaining to unfair labor - practices 'in representation proceedings.
We disagree. Despite the broad language in which that policy is
stated in the Nathan Warren 'case,8 the Board has not precluded
itself from considering such matters, where they are material to the
question of whether a question concerning representation exists. This
is particularly true with respect to the question of whether or not a
contract is invalidated as a bar to an election of representatives by
virtue of some defect in its union-security provisions. The Board,
indeed examines such clauses on its own motion,9 and finds no bar,
where the clause is unlawful on its face,10 or where, when read with
some other provision of the contract it provides for a degree of union
7 0. Hager & Sons Hinge Manufacturing Company , 80 NLRB 163 . See also Hygrade
Food Products Corporation, 82 NLRB 428; Penick ci Ford Ltd., Inc., 86 NLRB 659;
Julius Resnick , Inc, 86 NLRB 38; United World Films, Inc., 94 NLRB 644.
Nathan Warren ci Sons, Inc., 119 NLRB 292, cited by the Employer and the Intervenor.
9 American Seating Company , supra.
10 Industries Freight Service, 116 NLRB 1164 ; F. J. Kress Boa Company, 97 NLRB 1109.
1354 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
security beyond that permitted under the Act.11 Similarly, as is indi-
cated by the cases cited in footnote 7, supra, the Board inquired into
the question of whether union-security clauses had been authorized
by union-security authorization elections, when such elections were
required, and does inquire into the compliance status of contracting
unions at the time they execute union-security clauses.12 These are
all situations in which the Board considers matters which pertain to
unfair labor practices in representation proceedings.13 In such cases,
the Board of course considers such matters only to the extent necessary
to determine whether or not an election should be directed. It does
not make any unfair labor practice findings, and we do not do so here.
We hold merely that in the circumstances of this case, the policies
of the Act will best be effectuated by conducting an election of repre-
sentatives among the Employer's employees, thus affording them an
opportunity freely to choose their bargaining representative.
We find that a question affecting commerce exists concerning the
representation of certain employees of the Employer within the
meaning of Section 9 (c) (1) and Section 2 (6) and (7), of the Act.
4: The parties are in agreement as to the scope of the unit. They
are, however, in doubt as to whether all employees carrying foreman
classifications are supervisors within the meaning of the Act. As the
record does not permit a determination of their status at this time,
we shall permit the foreman to vote subject to challenge.
In accordance with the, parties' agreement, we find that the following
employees at the Employer's Parkersburg, West Virginia, plant, con-
stitute a unit appropriate for the purposes of collective bargaining
within the meaning of Section 9 (b) of the Act:
All production and maintenance employees, excluding office clerical
employees, professional employees, guards, and all supervisors as
defined in the Act :
5. At the time of the hearing the Employer employed approxi-
mately 89 employees. It expected its employee complement to decline
to approximately 40 employees 2 weeks later. By the middle of
April, it was expected that the employee complement might be down
-to no employees or up to approximately 150 employees, depending
on whether or not'the Employer is successful in obtaining a contract
11 L,ndmart Jewelry Mfg. Co., 119 NLRB 651; Theo. Hamm ' Brewing Co. and Pfeiffer
Brewing Co .; 115 NLRB 1157.'
?a Paul M. O'Neil International Detective Agency, Inc, 117 NLRB 578; Bonney Forge
and Tool Works , 117 NLRB 1765.
18 Avco Manufacturing Corporation , New Idea Division, 97 NLRB 645, -cited by the
Intervenor , is distinguishable from the instant case. That case did not involve the gues-
iion of whether' the contracting union was authorized to execute a contract containing
union-securi'ty' clauses which' w_ ere admittedly lawful on'their face: Accordingly , in defer-
mining the contract bar issue , the Board limited itself to consideration of the then existing
agreement . In the instant case, however, it is necessary to go back ' of the existing akree-
ment, - to determine whether the Intervenor has' been authorized in accordance'witli the
proviso to Section 8 ( a) (3) to execute any union-security clauses.
CALLAHAN-CLEVELAND, INC. 1355
on which it has bid. Laid-off employees have recall rights in ac-
cordance with their seniority standing, provided their layoff does
not exceed 1 year.
Petitioner urges that the Board select February 23, 1957, as the
eligibility date, apparently because on that date the Employer em-
ployed approximately the same number of employees as it will employ
if successful in its contract bid. We see no reason for departing from
our usual practice, under which eligibility is determined on the basis
of the payroll period immediately preceding the Direction of Election.
However, in the event that the Employer's operations have closed
down at the time of issuance of this Decision and Direction of
Election, we hereby amend the Direction of Election to provide for
an election among the employees in the appropriate unit who are
employed during the payroll period immediately preceding the date
of issuance of the notice of the election at a time when the Regional
Director determines that the Employer has resumed operations with
a representative number of employees. In either event, eligibility
of laid-off employees shall be determined in accordance with our usual
policy that such employees who enjoy a reasonable expectancy of
future employment are eligible to vote.
[Text of Direction of Election omitted from publication.]
Callahan-Cleveland, Inc. and Retail , Wholesale and Department
Store Union , District 65, AFL-CIO , Petitioner. Case No. 8-RC-
315d. Jwne 9, 1958
DECISION AND DIRECTION OF ELECTION
Upon a petition duly filed under Section 9 (c) of the National
Labor Relations Act, a hearing was held before W. R. Griesbach,
hearing officer. The hearing officer's rulings made at the hearing are
free from prejudicial error and are hereby affirmed.
Pursuant to the provisions of Section 3 (b) of the Act, the Board
has delegated its powers in connection with this case to a three-mem-
ber panel [Chairman Leedom and Members Bean and Fanning].
Upon the entire record in this case, the Board finds :
1. The Employer, hereinafter referred to as Cleveland, asserts that
its operations have insufficient impact upon commerce to warrant as-
serting jurisdiction. Petitioner contends that Cleveland and another
corporation, T. & F. Callahan, Inc., should be treated as a single Em-
ployer for jurisdictional purposes and that as both together meet the
Board's retail store standard, the Board should assert jurisdiction
over Cleveland.
120 NLRB No. 168.