L. O. Koven & Brother, Inc.

National Labor Relations Board - Board Decisions

Jun 21, 1948

77 N.L.R.B. 1253 (N.L.R.B. 1948)

In the Matter of L. O. KOVEN & BROTHER, INC. and INTERNATIONAL
LABORERS UNION, LOCAL 472, AFF. WITH INTERNATIONAL HOD CAR-
RIERS, BUILDING & COMMON LABORERS UNION OF AMERICA, AFL
Case No. 2-RC-29.-Decided June 21, 1948
DECISION
AND
ORDER
Upon a petition duly filed, a hearing was held before a hearing
officer of the National Labor Relations Board. 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 1 finds :
1. The Employer is engaged in commerce within the meaning of
the National Labor Relations Act.
2. International Laborers Union, Local 472, affiliated with Inter-
national Hod Carriers, Building & Common Laborers Union of
America, AFL, herein called the Petitioner, Local 274-B, United
Journeymen, Plumbers & Steamfitters Union, AFL, herein called the
Intervenor, and Local 45, Retail, Wholesale & Department Store Em-
ployees Union, CIO, herein called Local 45, are labor organizations
claiming to represent employees of the Employer.
3. The alleged question concerning representation.
On October 21, 1946, the Employer and the Intervenor executed a
collective bargaining agreement covering the Employer's production
and maintenance employees. The contract provided for an initial
term of 1 year and for its automatic renewal for a period of 1 addi-
tional year thereafter, in the absence of written notice of a desire to
modify or cancel, given by either party, 60 days prior to the expiration
date of the contract. Neither of the parties gave such notice in 1947.
Meanwhile, on August 20, 1947, the Petitioner notified the Em-
ployer, by telegram, that it represented a majority of the Employer's
I Pursuant to the piov isious of Section .3 (b) of the National Labor Relations Act, the
Board has delegated its powers in connection with this case to a three-man panel consisting
of the undersigned Boaid Members [ Houston, Reynolds , and Gray].
77 N. L. R. B., No. 201.
1253
78SSS6-40-vol 77--50
1254 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employees and requested recognition as their collective hargaining
representative. The Petitioner, however, did not file its petition
herein until October 16, 1947, after the automatic renewal date of the
1946 contract.
Arguing that more.than 10 days, had elapsed between.the Petitigner's
August claim 2 to representation and the filing of its petition, the
Intervenor and the Employer contend that the 1946 contract, which
had automatically renewed itself in the interim, constitutes a bar to a
present election under the doctrine of the General Electric X-Ray
case.3 The Petitioner contends, however, that the contract is not a
bar because (1) the delay in the filing of its petition was attributable
to "extenuating circumstances" 4 and the General Electric X-Ray doc-
trine is therefore inapplicable.in_this,case;_and (2) the Inter-venor is
a defunct labor organization with respect to the Employer's employees.
The Petitioner refers to the General Counsel's ruling ' that officers
of national or international labor organizations with which local
unions in question are affiliated must also comply with the filing re-
quirements of Section 9 (f), (g), and (h) of the Labor Management
Relations Act, 1947. The Petitioner thereupon urges as "extenuat-
ing circumstances" that because its national parent organization, the
American Federation of Labor, had not satisfied these filing require-
ments the Petitioner was unable to file its petition until the Board in
the Northern Virginia Broadcasters cases reversed the General Coun-
sel's ruling. Although these circumstances are somewhat novel, we
do not regard them as "extenuating" in the present case, in view of the
fact that the Petitioner was not precluded by the General Counsel's
ruling from filing a petition within the time prescribed under the
General Electric X-Ray rule and then taking an appeal, in the event
of its dismissal, as the petitioning union did in the Northern Virginia
Broadcasters case. Moreover, although the Board's decision in the
Northern Virginia Broadcasters case was issued on October 7, 1947,
the Petitioner did not file its petition herein until October 16, 1947,
2 We find, contrary to the Petitioner 's contention , that its telegram of August 20, 1947,
was a mere naked claim of representation But of Matter of Bayer -Schweitzer Hop & Malt
Co , et at , 72 N. L. R. B. 1223, 1228, Matter of Acme Brewing Company, et at, 72 N L.
R B 1005, 1012.
9 Matter of General Electric X-Ray Corporation , 67 N L R B. 997
4In the General Electric X-Ray case, supra , the Board indicated that in the event of
"extenuating circumstances " the 10-day filing rule might not be strictly applied
5 See the General Counsel ' s address on September 23, 1947,-befoic the American Bar
Association, 20 L R. R M 84, 94
4 Matter of Northern Virginia Broadcasters, Inc, Radio Station IVARL, 75 N L R. B. 11.
L. O. KOVEN & BROTHER, INC. 1255
9 days after the decision in that case. We find, therefore, that the
contract, as renewed, constitutes a bar to a present determination of
representatives.' Accordingly, we shall dismiss the petition 8
ORDER
IT IS HEREBY ORDERED that the petition herein be, and it hereby is,
dismissed.
'Matter of Yellow Transit Company, 73 N L R B 424.
8 The Petitioner contends further that the contract should not constitute a bar because
the Intervenor has ceased to function as collective bargaining representative under its con-
tract with the Employer . This contention rests, primarily , upon the alleged failure of the
Intervenor' s business agent to appear at meetings , to properly process grievances, and to
negotiate changes in the contract, and upon the fact that dues have not been checked off
since September 1947. There is also a petition submitted by the Petitioner ; after the hear-
ing, signed by approximately 160 employees stating, in effect, that they were not members
of the Intervenor and did not desire the Intervenor to represent them. However, inasmuch
as the record shows, among other things, that the Intervenor 's business agent has processed
grievances as recently as December 1947, and that the Intervenor 's contract is presently
being seiviced by its business agent , we find no merit in the Petitioner's contention that
the Intervenor has become defunct or is otherwise incapable of functioning as the bargaining
representative of the Employer ' s employees , notwithstanding the fact that there may be a
number of employees iiho are dissatisfied with the representation accorded them by the
Intervenor.