Foster-Grant Co., Inc.

National Labor Relations Board - Board Decisions

Jan 22, 1944

54 N.L.R.B. 802 (N.L.R.B. 1944)

In the Matter of FOSTER-GRANT Co., INC. and PLASTIC, CORK AND LINO-
LEUM DEPARTMENT OF THE UPHOLSTERERS' INTERNATIONAL UNION
OF N. A. (A. F. OF L.)
Case No. 1-R-1659.-Decided January 22,194,1F
Messrs. Jacob Chatkis and, Paul Byrne, of Leominster, Mass., for
the Company.
Mr. Haskell Golder, of Cambridge, Mass., and Mr. Howard Litch-
field, of Arlington, Mass., for the A. F. L.
Mr. Sam Sandberg, of Leominster, Mass., for the C. 1. 0.
Mr. Robert E. Tillman, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
Upon petition duly filed by Plastic, Cork and Linoleum Department
of the Upholsterers' International Union of N. A. (A. F. of L.), herein
called the A. F. L., alleging that a question affecting commerce had
arisen concerning the representation of employees of Foster-Grant
Co., Inc., Leominster, Massachusetts, herein called the Company, the
National Labor Relations Board provided for an appropriate hearing
upon due notice before Robert k. Greene, Trial Examiner. Said ,
hearing was held at Leominster, Massachusetts, on December 15, 1943.
The Company, the A., F. L., and United Paper, Novelty & Toy Work-
ers International Union (C. I. 0.), herein called the C. I. 0., appeared,
participated, and were afforded full opportunity to be heard, to ex-
amine and. cross-examine witnesses, and to introduce evidence bear-
ing on the issues. The rulings of the Trial Examiner made at the
hearing are free from prejudicial error and are hereby affirmed. All.
parties were afforded opportunity to file briefs with' the Board.
Upon the, entire record in the case,' the Board makes the following :
' Subsequent to the hearing the Company filed a motion with the Board to correct certain
errors in the record . The other parties were duly notified and made no objections to the
motion. The motion is hereby granted , and the corrections are approved and made part of
the record in this proceeding.
54 N. L. R. B.,'No. 121.
802
FOSTER -GRANT CO., INC.
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
803
Foster-Grant Co., Inc., a Massachusetts corporation, operates a
plant in Leominster, Massachusetts, where it is normally engaged in
the manufacture, sale, and distribution of plastic specialties, including
jewelry, combs, sun goggles, and hair ornaments. The principal
raw materials used by the Company consist of glass, cellulose, acetate,
and other synthetic resins. Normally, the raw materials purchased
annually by the Company have a value in excess of $325,000, of which
over 90 percent represents the value of raw materials shipped to the
plant from points outside the Commonwealth of Massachusetts. Nor-
mally, the Company's production is valued in excess of $1,000,000 an-
nually, of which 90 percent represents the value of its products
shipped to points outside the Commonwealth of Massachusetts. At
the present time, the Company is engaged in war production for the
United States Government. It admits that it is engaged in com-
merce within the meaning of the National Labor Relations Act.
Ir., THE ORGANIZATIONS INVOLVED
Plastic, Cork and Linoleum Department of the Upholsterers' In-
ternational Union of N. A. is a labor organization affiliated with the
American Federation of Labor, admitting to membership employees
of the Company.
United Paper, Novelty & Toy Workers International Union is a
labor organization affiliated with the Congress of Industrial Organ-
izations, admitting to membership employees of'the Company.
III. THE QUESTION CONCERNING REPRESENTATION
On October 4, 1943, the A. F." L. sent a letter to the Company in
which it set forth its claims to represent the Company's employees.
No reply was received, but within a week or two thereafter, the Com-
pany informed the A. F. L. that the latter would not be recognized
unless and until the Board so determined.
The,Company and the C. I. O. now contend that no question con-
cerning representation has arisen in the present proceeding because
the Company's employees are presently represented under a contract
with the C. I. O.
To determine this issue, a brief resume of the bargaining relations
between the Company and the C. I. O. is necessary. The history of
bargaining' dates back to August 8, 1941, when the C. I. O. was
victorious in a consent, election conducted among the Company's
production and maintenance employees. As the result of this election,
804 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the C. I. O. was certified as the collective bargaining representative
of the above employees. On September 22, 1941, it entered into a
contract with the Company, which provided for a 1-year term ending
November 1, 1942, but subject to automatic renewal in the absence
of written notice to the contrary by either party not later than 6a
days before the termination date. On October 26, 1942, the C. I. O.
and the Company negotiated a second contract to terminate on
November 1, 1943, subject to, an automatic renewal clause identical
to the above. In August 1943; the C. I. O. orally informed the Com-
pany of a desire to make certain changes in the second contract, and
accordingly, on September ,13, 1943, submitted a written proposal of
changes attached to a letter which read in part: "Enclosed you will
find a copy of the proposals for the ' new contract to replace the
Agreement now in effect which expires November 1, 1943." There-
after, the C. I. O. and the Company entered into negotiations, which
culminated on September 27, 1943, in an oral understanding to the
effect that the provisions of the second contract would be retained as.
supplemented by the award of the National War Labor Board, herein
called the W. L. B., on four issues in dispute which were to be sub-
mitted, to that agency. On September '28, 1943, this oral underr,
standing was embodied in a written "Interim Agreement," which
stated that the entire contract had been mutually agreed to, that the
question of wage rates would be held in abeyance, and that the fol-
lowing four provisions would be submitted to the W. L. B. (the parties
agreeing to abide by the award) : check-off, length of probationary
period, lay-off period, and piece-work transfer. On October 5, 1943,
the Company received the afore-mentioned notice of representation
claims from the A. F. L. Thereafter the Company agreed with the
C. I. O. to-permit the W. L. B. to arbitrate the wage rates, which
would.then be included, in the contract. Finally, between October
25 and November 1, 1943, the C. I. 0., and later the Company, signed
a formal contract terminating on November 1, 1944, which contains
various provisions calculated to incorporate the awards to be made
by the W. L. B.
In its brief, the C. I. O. contends that the Interim Agreement, which
was entered into before notice of the A. F. L.'s claims to representation,
continued the 1942 contract with minor revisions, thus constituting a
bar to the present proceeding, and that the submission of several issues
to the W. L. B. did not serve to remove,the,bar. :The Company-con-
tends-somewhat, similarly thatthe' InterinYAgteement was'an agree-
ment to continue the 1942 contract and to submit proposed changes to
the W. L. B.; that this agreement was reached before knowledge of the
A. F. L.'s claims; and that it constitutes evidence in writing that the
parties had reached a meeting of the minds, even though a more formal
document was contemplated.
FOSTER-GRANT CO., INC. 805
In certain aspects, the instant case appears to present a problem
similar to that which the Board resolved in Matter of Allis-Chalmers
Manu f aeturing Company 2 by holding that the contractual relation-
ship existing therein between the Company and an intervenor labor
organization was a bar to a determination of representatives. How-
ever, as later decisions have emphasized,3 that case stands solely for
the principle that a newly recognized or certified representative is
entitled to a reasonable opportunity to obtain the benefits of exclusive
representation as evidenced by a collective bargaining contract; and
that, where all reasonable efforts have been made to procure such a
contract immediately after recognition or certification, but a bargain-
ing deadlock has ensued, and resort is then had to the processes of a
governmental agency established for such purposes, with the result
that a formal contract is not entered into until after knowledge is
acquired of the conflicting claims of a second labor organization,
nevertheless, the Board will treat the contract as a bar to any determin-
ation of representatives sought before the reasonable term of such
contract is about to expire. In the present case, the C. I. O. is neither
a newly recognized nor a newly certified labor organization. On the
contrary, it has had exclusive bargaining relations with the Company
for a period of over 2 years. Moreover, the Interim Agreement in the
instant case, unlike the comparable agreement in the Allis-Chalmers
case, was not in effect at the time the conflicting representation claim
was presented; it was intended to cover a possible hiatus period com-
mencing at the termination of the old contract, but at the time the
A. F. L. served notice of its claim the term of the old contract had
still 26 days to run. The Allis-Chalmers case is, therefore, not con-
trolling.
Where a contract provides for its automatic renewal in the event
neither party gives notice to the other more than a specified number
of days prior to the termination date of a desire to change the contract,
the Board has held that to prevent such automatic, renewal from
operating as a bar to a determination of representatives, the petition-
ing union must either serve notice of its claim on the Company or file
its petition prior to the automatic renewal date. Where such a
contract is not automatically renewed, as was the case herein, we are
of the opinion that notice of conflicting claims to representation given
either prior to the termination date of the old contract, or prior to the
effective date of a succeeding contract, is sufficiently timely to prevent
the succeeding contract from acting as a bar. Here, the A. F. L. gave
notice before the termination date of the 1942 contract. We find,
2 50 N. L. R. B. 306.
a See Matter of Macalatchae Manufacturing Company , 53 N. L . R. B 1268. Matter of
Kennecott Copper Corporation, Nevada Mines Branch, 51 N. L R B. 1140; Matter of
Aluminum Company of America, Vancouver, Washington, 53 N. L . R. B. 593.
806 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
therefore, that neither the Interim Agreement nor the 1943 contract
is a bar to a present determination of representatives.
A statement of the Regional Director, introduced into evidence at
the hearing, indicates that the A. F. L. represents a substantial number
of employees in the unit hereinafter found to be appropriate?
We find that a question affecting commerce has arisen concerning
the representation of employees of the Company, within the meaning
of Section 9 (c) and Section 2 (6) and (7) of the Act.
IV. THE APPROPRIATE UNIT
The A. F. L. and the C. I. 0. are agreed on the appropriate unit to
the extent that it should include all employees of the Company,
excepting executives, supervisory employees above the rank of working
foreman, office, clerical, and sales employees, and truck drivers. The
C. 1. 0., in opposition to the A. F. L. would also exclude shipping-room
employees from the unit. The Company does not take any position as
to the appropriate unit.
In the consent election conducted on August 8, 1941, shipping-room
employees, by agreement of the Company and the C. I. 0., were:
excluded from the voting unit. The shipping-room employees have
not been covered by any contract since the consent election. In view of
the dispute between the two participating labor organizations as to
the present disposition of shipping-room employees, we are of the
opinion that the history of collective bargaining should be determina-
tive of the issue. This history indicates that the shipping-room
employees have not been included in the production and maintenance
unit. Under these circumstances, we shall exclude them from that unit
in the present proceeding.
We find that all employees of the Company, excluding office, cler-
ical, and sales employees, truck drivers, shipping-room employees.
executives, supervisory employees above the rank of working foreman,
and all other supervisory employees with authority to hire, promote,
discharge, discipline, or otherwise effect changes in the status of
employees, or effectively recommend such action, constitute a unit
appropriate for the purposes of collective bargaining within the mean-
ing of Section 9 (b) of the Act.
V. THE DETERMINATION OF REPRESENTATIVES
We shall direct that the question concerning representation which
has arisen be resolved by an election by secret ballot among the em-
ployees in the appropriate unit who were employed during the pay-roll
4 The Regional Director stated that the A. F L submitted to him 181 authorization cards,
of which 178 bore apparently genuine, original signatures ; and that 161 of the latter 178
cards bore names of persons whose names appeared on the Company ' s October 28, 1943,
pay roll, which listed 625 employees in the unit alleged to be appropriate.
FOSTER-GRANT CO., INC. 807
period immediately preceding the date of our Direction of Election
herein, subject to the limitations and additions set forth therein.5
DIRECTION OF ELECTION
By virtue of and pursuant to the power vested in the National Labor
Relations Board by Section 9 (c) of the National Labor Relations Act,
and pursuant to Article III, Section 9, of National Labor Relations
Board Rules and Regulations-Series 3, it is hereby
DIRECTED that, as part of the investigation to ascertain representa-
tives•for the purposes of collective bargaining with Foster-Grant 'Co.,
Inc., Leominster, Massachusetts, all election by secret ballot shall be
conducted as early as possible, but not later than thirty (30) days from
the date of this Direction, under the direction and supervision of the
Regional Director for the First Region acting in this matter as agent
for the National Labor Relations Board and subject to Article III,
Sections 10 and 11, of said Rules and Regulations, among the em-
ployees in the unit found appropriate in Section IV, above, who were
employed during the pay-roll period immediately preceding the date,
of this Direction, including employees who did not work during said
pay-roll period because they were ill or on vacation or temporarily
laid off, and including employees in the armed forces of the United
States who present themselves in person at the polls, 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, to
determine whether they desire to be represented by Plastic, Cork and
Linoleum Department of the Upholsterers' International Union of
N. A. (A. F. of L.), or by United Paper, Novelty & Toy Workers
International Union (C. I. 0.), for the purposes of,collective bargain-
ing, or by neither.
I In its brief the A. F L . urged that eligibility to vote be determined by the pay-roll
period immediately preceding the election , in view of the closed -shop provisions of the
C. I 0 contract We do not consider that this reason necessitates a departure in the
instant case from our customary practice in determining the eligibility date.