Foremost Appliance Corp.

National Labor Relations Board - Board Decisions

Aug 26, 1960

128 N.L.R.B. 1033 (N.L.R.B. 1960)

FOREMOST APPLIANCE CORP. 1033
jurisdiction over the operations of Hobbs with respect to labor dis-
putes cognizable under Sections 8, 9, or 10 of the Act. The Board
expresses no opinion as to whether it would take jurisdiction over or
render a decision on the merits of the controversy which is the subject
of the State court action.
Foremost Appliance Corp . and Seafarers International Union
of North America, Atlantic and Gulf District, Marine Allied
Workers Division , AFL-CIO, Petitioner . Case No. 2-RC-10446.
August 26, 1960
DECISION AND ORDER
Upon a petition duly filed under Section 9(c) of the National Labor
Relations Act, a hearing was held before Arthur E. Neubauer, 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 labor organizations involved claim to represent certain
employees of the Employer.'
3. No question affecting commerce exists concerning the representa-
tion of employees of the Employer within the meaning of Section
9(c) (1) and Section 2(6) and (7) of the Act, for the following
reasons.
The Petitioner seeks to represent the production and maintenance
employees of the Employer. The latter and the Intervenor contend
that a current contract between them is a bar to this petition. The
Employer and the Intervenor executed a contract on April 28, 1958,
to expire April 18, 1960. As of April 28, 1958, the Employer was
located on Atlantic Avenue, Brooklyn, New York, and employed about
seven production employees.2 In the latter part of February or
March 1959, the Employer opened a new location on Kent Avenue,
Brooklyn, and transferred to this plant from Atlantic Avenue, 20
of about 100 employees, without an accompanying change in the
character of the jobs and functions of the employees in the contract
unit. On May 26, 1959, the Employer and the Intervenor executed
an entirely new contract to expire May 25, 1962, covering the Atlantic
Avenue and Kent Avenue locations as well as a future contemplated
location at Butler Street. It appears that as of the date of the new
contract, the Employer had a total of 50 to 60 employees at both
I Amalgamated Local Union 355 was permitted to intervene , without objection, on
the basis of a contractual interest.
a Based on the Employer 's testimony.
128 NLRB No. 118.
1034 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Atlantic Avenue and Kent Avenue locations. In July 1959, the
Employer transferred all its employees from the plants at Atlantic
Avenue and Kent Avenue to the new location at Butler Street, again
without accompanying change in the jobs and the functions of these
employees. The Atlantic Avenue and Kent Avenue plants were then
closed down.
The petition herein was filed on January 7, 1960. The Petitioner
contends that the second contract was a premature extension of the
prior contract, and therefore no bar. The Intervenor and the Em-
ployer contend that the May 26, 1959, contract was executed at a time
when the prior existing contract would not have been a bar under the
Board's rules because of an expanded unit, that the new contract was
therefore effective as a bar for its reasonable term, and that the peti-
tion filed herein was untimely. We find merit in this contention.
In Deluxe Metal Furniture Company,' the Board issued its contract-
bar rules governing prematurely extended contracts in which it pro-
vided in pertinent part, that :
a contract will continue to be considered prematurely ex-
tended if during its term the contracting parties execute an
amendment thereto or a new contract which contains a later
terminal date than that of the existing contract, except when
executed . . . at a time when the existing contract would not
have barred an election because of other contract-bar rules.
[Emphasis supplied.]
At the same time, in General Extrusion Co., Inc., et a1.,4 the Board
announced the rule that a contract will not bar an election if executed
prior to a substantial increase in personnel , defined in the following
terms :
a contract will bar an election only if at least 30 percent of
the complement employed at the time of the hearing had been
employed at the time the contract was executed, and 50 percent
of the job classifications in existence at the time of the hearing
were in existence at the time the contract was executed.
It is clear from the quoted passages above that the Board intended
to permit contracting parties to correct, by appropriately rewriting,
an existing contract defective as a bar because of expanding unit or
other contract-bar rules , and that such a corrected contract would
operate as a bar for its reasonable term .5 Here, the record shows that
about seven unit employees were on the payroll when the April 28,
1958, contract was executed, and that at the time of the new contract
on May 26, 1959, the personnel complement had substantially increased
8121 NLRB 995, 1001, 1002.
4121 NLRB 1105, 1167.
5 See Wood Conversion Company, 125 NLRB 785.
BORG-WARNER CONTROLS , BORG-WARNER CORPORATION 1035
to 50 to 60 employee's.6 Thus, under the General Extrusion formula,
less than 30 percent of the complement was employed in the unit when
the new contract in question was executed? While General Extrusion
speaks in terms of the percentage of expansion as of "the time of the
hearing," it is only the natural and reasonable construction of that rule
to apply the expanding unit formula in the present situation as of
the time the new contract was executed.' As of such time, it is found
that the original, April 28, 1958, contract would not have operated as
a bar if a petition were then filed for a representation election. Ac-
cordingly, we conclude that the new contract of May 26, 1959, is not
subject to the premature extension rules of the Deluxe case, and that it
stands as a bar to the petition filed herein. We shall therefore dismiss
the petition.
[The Board dismissed the petition.]
MEMBER RoDGERS took no part in the consideration of the above De-
cision and Order.
6 The evidence shows that from February to July 1959 , employment was subject to
wide fluctuations, but the average production and maintenance complement during this
period was 69 employees
7 Although it does appear that at least truckdrivers were added , the record does not
clearly show the extent of change in job classifications . A finding as to this factor is
unnecessary in view of the result reached herein.
"In March and April 1959, representation petitions in Cases Nos . 2-RC-9839 and
2-RC-9892 had been filed by two unions , not here involved , which they withdrew for
unexplained reasons before the hearing scheduled in those cases on May 12, 1959.
Counsel for the Intervenor testified that he was advised by the Board agent in connec-
tion with those cases that the April 28, 1958, contract might not be a bar because of the
expanded unit . As a consequence after the withdrawal of those petitions , the Employer
and the Intervenor executed the new contract of May 26, 1959 , inter also , to correct the
deficiency.
Borg-Warner Controls, Borg-Warner Corporation 1 and Inter-
national Union , United Automobile, Aircraft and Agricultural
Implement Workers of America (UAW), AFL-CIO, and its
Local 509. Case No. 21-CA-3529. August 926, 1960
DECISION AND ORDER
STATEMENT OF THE CASE
This proceeding was instituted by the filing of charges on April 13,
1959, alleging violations of Section 8(a) (1), (3), and (5 ) of the Act.
'Following the close of the hearing , the Respondent stated in its brief in support of
exceptions to the Intermediate Report that Borg -Warner Controls , a division of Re-
spondent , now operates the plants and facilities formerly operated by BJ Electronics,
which was a part of Byron Jackson Division of the Respondent and that BJ Electronics
is no longer in existence . These plants and facilities are those at Santa Ana , California,
involved in the instant proceeding . We hereby order the record reopened for the purpose
of incorporating therein and do order incorporated therein a stipulation of the parties,
128 NLRB No. 119.