Mallinckrodt Chemical Works

National Labor Relations Board - Board Decisions

Nov 3, 1972

200 N.L.R.B. 1 (N.L.R.B. 1972)

MALLINCKRODT CHEMICAL WORKS I
Mallinckrodt Chemical Works1 and United Steelwork-
ers of America,2 AFL-CIO, Petitioner. Case
14-RC-7005
November 3, 1972
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS
FANNING AND PENELLO
Upon petitions duly filed under Section 9(c) of the
National Labor Relations Act, as amended, a
hearing was held on June 19, 20, 21, and 22, 1972,
before Hearing Officer Victor R. Witte, Jr. Thereaf-
ter, the Employer, Petitioner, and Intervenor filed
briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Hearing Officer's rulings made at the hearing
are free from prejudicial error and are hereby
affirmed.
Upon the entire record in this proceeding, 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 con-
cerning the representation of certain employees of
the Employer within the meaning of Sections 9(c)(1)
and 2(6) and (7) of the Act.
The Petitioner seeks to represent employees of the
Employer currently represented by the Intervenor,
Independent Union of Chemical Plant Workers. The
Employer and the Intervenor claim that a memoran-
dum of agreement, executed on March 14, 1972,
operated as a bar to the petition filed on March 24,
1972.3
The Employer has recognized the Intervenor as the
collective-bargaining representative of its employees
since 1937. From 1946 through 1971, the Employer
and the Intervenor executed 16 written collective-
bargaining agreements, 14 of which expired before
agreement was reached on a new contract. The
Intervenor was certified as the collective-bargaining
representative of the employees on December 31,
1962, in Case 14-RC-4435, following an election. On
October 18, 1971, the Intervenor gave the Employer
notice of its intent to terminate the agreement then in
effect, which was to expire by its terms on January 1,
1972. The parties commenced negotiations for a new
contract in October 1971, and approximately 38
negotiation sessions were held until the memoran-
dum of agreement was executed on March 14, 1972.
On March 25, 1972, the parties executed a formal
typewritten contract which set out the provisions of
the memorandum of agreement and the unchanged
provisions which were carried over from the contract
which expired on January 1, 1972. On the same day,
the employees voted to ratify the contract and ceased
strike activities which had begun on March 1.
In finding that no question concerning representa-
tion exists, we need not reach the question whether
the memorandum of agreement constituted a bar.
Instead we find that the petition filed on Friday,
March 24, was not supported by a timely showing of
interest prior to final execution of the new formal
agreement on March 25. Petitioner did not support
its petition with an adequate showing of interest until
Monday, March 27, 2 days after the Employer and
the Intervenor executed the formal agreement.
Section 101.17 of the Board's Rules and Regula-
tions provides that a showing must be submitted
within 48 hours of the filing of the petition, but in no
event later than the last day a petition might timely
be filed. Here, since the new contract was executed
on March 25, 2 days prior to the submission of a
showing of interest, the latter was untimely under the
literal terms of the Board's rule. It is true that in
Rappahannock Sportswear Co., Inc., 163 NLRB 703,
the Board recognized an exception to that rule.
However, that exception was based upon the special
circumstances of that case. In that case, there was no
bargaining history, and two rival unions were
engaged in initial organization of the Employer's
employees. The employer was aware of both organi-
zational campaigns, and, on being notified that one
of the unions had filed a petition, recognized and
executed a collective-bargaining agreement with the
other. Although the showing of interest in support of
that petition was not furnished to the Regional Office
until the date the aforementioned contract was
executed, all cards predated the filing of the petition.
The Board declined to apply Section 101.17, noting
the manifest inequity in permitting the hasty signing
r Herein referred to as the Employer
2 Herein referred to as the Petitioner
3 At the hearing , the Intervening Petitioner , Local #6, International
Brotherhood of Firemen and Oilers , AFL-CIO, moved to withdraw its
petition filed on April 17, 1972 , and moved to intervene in Case
14-RC-7005 The oral motion to intervene was granted Subsequent to the
hearing the Regional Director approved the request to withdraw the petition
in Case 14-RC-7027, without prejudice , and severed that case from Case
14-RC-7005.
The parties stipulated that the following unit is appropriate
All employees of Malhnckrodt Chemical Works , employed at the
Employer's facilities at 3600 North Second Street , St Louis, Missouri,
excluding foremen and assistant foremen, monthly salaried employees
(office, clerical , technical and laboratory employees), professional
employees , chauffeurs , power plant personnel , guards and supervisors
as defined in the Act
200 NLRB No. 34
2 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of a contract to truncate the normal 48 hours for the
filing of a showing of interest.
Unlike Rappahannock, in the instant proceeding
none of the factors that supported the Board 's action
in accepting a showing-late under a literal applica-
tion of the rule-are present . Indeed the instant
Petitioner , faced with the long bargaining history
between the Employer and Intervenor and the
persistent efforts of the latter to reach agreement,
had adequate knowledge of the risk involved in any
dilatory action and should not be relieved from
compliance with our rules . For these reasons , we find
that , under Section 101.17 of the Board's Rules and
Regulations , Petitioner's showing of interest was
untimely , and hence the final agreement executed by
the Employer and Intervenor on March 25 constitut-
ed a bar to an election . Accordingly , we shall dismiss
the petition.
ORDER
It is hereby ordered that the petition filed in Case
14-RC-7005 be , and it hereby is, disnussed.