Ideal Can Co.

National Labor Relations Board - Board Decisions

Jul 10, 1975

219 N.L.R.B. 59 (N.L.R.B. 1975)

IDEAL CAN COMPANY 59
Ideal Can Company and International Union of Elec-
trical, Radio and Machine Workers , AFL-CIO-
CLC, Petitioner. Case 1-RC-13639
July 10, 1975
DECISION ON REVIEW AND DIRECTION OF
ELECTION
BY MEMBERS FANNING, KENNEDY, AND PENELLO
On February 12, 1975, the Regional Director for
Region 1 issued a Decision and Order in the above-
entitled proceeding, in which he dismissed the peti-
tion filed herein on the basis of his finding that a
collective-bargaining agreement between Employer
and the Ideal Can Progressive Association' automat-
ically renewed itself and operated as a bar to the
instant petition. Thereafter, the Petitioner filed a
timely request for review of the Regional Director's
decision on the grounds that in finding a contract bar
herein he made erroneous findings of fact and de-
parted from established policy. The Employer filed
opposition to the request for review.
On April 14, 1975, by telegraphic order, the re-
quest for review was granted.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the entire record in this
case with respect to the issues under review and finds
that a question affecting commerce exists concerning
the representation of certain employees of the Em-
ployer within the meaning of Sections 9(c)(1) and
2(6) and (7) of the Act, for the following reasons:
The Petitioner asserts that the Regional Director
erred in failing to find that the Employer and the
Association, in the course of negotiating midterm
modifications in their contract due to expire Decem-
ber 1, 1974, by their conduct waived the necessity for
written notice to terminate or modify their agree-
ment, and therefore forestalled its automatic renew-
al. For this reason, it contends that its petition is not
barred as it was filed after the expiration of that con-
tract and prior to execution of a new one. We find
merit in these contentions.
The Employer and the Association had an agree-
ment effective from December 1, 1971, to December
1, 1974. The agreement provided for automatic re-
newal "unless written notice of a desire to terminate
or modify [the agreement] is given by either party to
the other, by registered or certified mail . . . sixty
1 The Association did not intervene in this proceeding.
days before the expiration ..... It is undisputed
that no written notice was given by either party. The
instant petition was filed on December 5, 1974.
Throughout their bargaining relationship the Em-
ployer and Association have negotiated midterm
changes in their agreement. These negotiations have
always begun informally with one party merely voic-
ing a desire to talk. Similarly, in May 1974, the Asso-
ciation requested a 60-to-70-cent-per-hour cost-of-
living wage increase to become effective July 1, 1974.
While the question was being discussed, Donald
Blanchard, Employer's personnel manager and nego-
tiator, requested negotiations as to other issues. Pur-
suant to this request, such broadened negotiations
were conducted in several sessions from May until
July 31, 1974. At that time the Association presented
to its membership for approval the following issues
upon which agreement had been reached: the addi-
tion of another paid holiday; removal of the supervi-
sors from the unit on a trial basis for a year; a 25-
cent-per-hour across-the-board wage increase effec-
tive August 1, 1974; and a 25-cent-per-hour
across-the-board wage increase effective March 1,
1975. The membership voted to accept all of these
provisions, choosing the day after Thanksgiving for
the new holiday. However, the employees would not
accept a 3-year extension of the contract as the Em-
ployer desired but voted for a 1-year extension. The
Employer later accepted the 1-year extension and
prepared a memorandum of agreement including the
above points of agreement and additional minor
ones. However, this document was never presented
to the Association for signature. On September 12, a
wage agreement was executed. Although no agree-
ment was executed as to the other terms previously
negotiated, they were in fact implemented by the
Employer.
From the foregoing and the entire record, we are
satisfied that the Employer and the Association in-
formally reopened their contract scheduled to expire
December 1, 1974. Clearly, the Association acceded
to the Employer's request that the midterm negotia-
tions initiated in May 1974 be broadened to include
other matters, including a new expiration date. Al-
though, as stated, the ensuing negotiations led to
agreement on several issues, only the agreement as to
wages was signed by the Employer and the Associa-
tion. In effect, the parties reached a new agreement,
incompletely executed, which superceded the agree-
ment scheduled to run from December 1, 1974. The
original agreement was no longer in existence at the
time it could, by its terms, have been automatically
renewed absent a notice of desire to terminate or
modify. We find, therefore, that the Association's
contract with the Employer was not automatically
219 NLRB No. 8
60 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
renewed and that the instant petition was timely, as it
was filed after the expiration of their contract and
before a new one was fully executed?
Accordingly, we shall direct an election in the fol-
lowing unit which, in agreement with the parties'
stipulation, we find to be appropriate for the purpos-
es of collective bargaining within the meaning of Sec-
tion 9(b) of the Act:
All production, maintenance, and shipping
employees at the Employer's 50 New Salem
Street, Wakefield, Massachusetts, facility, ex-
cluding office clerical employees, guards, and
supervisors as defined in the Act.
[Direction of Election omitted from publica-
tion.] 3 4
2Appalachian Shale Products Co., 121 NLRB 1160 (1958).
3 [Excelsior footnote omitted from publication .] bent representative of the employees involved. If it wishes to be removed
a Although the Ideal Can Progressive Association did not intervene here- from the ballot, it shall so notify the Regional Director of Region I in
in, we are placing its name on the ballot in view of its status as the incum- writing within 5 days of the date of this decision