Mallinckrodt Chemical Works

National Labor Relations Board - Board Decisions

Oct 3, 1955

114 N.L.R.B. 187 (N.L.R.B. 1955)

MALLINCKRODT CHEMICAL WORKS 187
packing and paint department, and there is no evidence that inde-
pendent'investigations are made of-such recommendations in any case.'
Accordingly, we find that the leadermen and board machine men have
and exercise authority effectively to recommend promotions of em-
ployees under them and are supervisors within the meaning of the Act s
We shall therefore exclude them from the unit.
We-find that the following employees of the Employer at its New
Brighton, Staten Island, New York, plant constitute a unit appropri-
ate for the purposes of collective bargaining within the meaning of
Section 9 "(b) of the Act :
All production and maintenance employees including inspectors, but
excluding office and clerical employees, professional employees,
testers, watchmen, guards, executives, foreman, mill leadermen, large
batch leadermen, dry paint, Sabinite and Oriental leaderman, Perf-A-
Tape -leaderman, shipping leaderman and raw materials leaderman in
the packing and paint department, shipping leadermen in the paste
paint department, block leadermen, takeoff leadermen, board machine
men, and other supervisors as defined in the Act.
[Text of Direction of, Election omitted from publication.]
8 There is evidence that in two instances, one involving a recommendation for suspen-
sion by a takeoff leaderman and the other a, 'recommendation for discharge by a board
machine man , that independent investigations were made before action was taken. Also
there was testimony that separate investigations are made of recommendations for dis-
charge by the shipping leaderman in the packing and paint department . However, there
is no evidence of independent investigation of any other recommendations for changes
in status.
9 -United States Gypsum Company, 112 NLRB 1217.
Mallinckrodt Chemical Works and International Brotherhood
of Electrical Workers, A. F. L., Petitioner. Case No. 14-RC-
2728. October 3,1955
DECISION AND ORDER
Upon a petition duly filed under Section 9 (c) of the National Labor
Relations Act, a hearing was held before Henry L. Jalette, 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 employees
of the Employer.' I
1 The Independent Union of Chemical Plant Workers intervened on the basis of a
contractual interest.
114 NLRB No. 48.
188 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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 sever a unit of electricians from a produc
tion and maintenance unit. The Employer and Intervenor contend-
that the petition is barred by their contract.
- On April 28, 1954, the Intervenor and Employer entered into a
contract effective January 1, 1954, covering among others the elec-
tricians sought by the Petitioner. The contract was to continue in
effect until January 1, 1955, and from year to year thereafter absent
60 days' notice prior to the anniversary date.of intent to terminate.
The contract also provided that it could be changed "but not termi-
nated" by either party's serving upon the other
... notice of the change desired at least 60 days prior to contract
[anniversary date], in which event this contract shall be auto-'
matically renewed for one year subject, however to such changes
as may be mutually agreed upon. [Emphasis supplied.]
On October 13, 1954, the Intervenor served timely notice upon the
Employer seeking extensive changes in their contract.2 Modifica-
tions were not agreed upon and reduced to writing until March 25,
1955. The resulting document was basically the same as the old agree-
ment, incorporating, however, certain changes which had been agreed
to by the parties in June 1954 and those resulting from the October
1954 reopening. This agreement was effective by its terms for 1 year
from January 1, 1955, subject to automatic renewal. On March 7,
1955, some 21/2 weeks before the new document was signed, the Peti-
tioner filed its petition.
The Employer and Intervenor take the position that their contract is
a bar to this proceeding because it automatically renewed itself . before
the filing of the petition. The Petitioner argues, however, that under
the rule of the American Lawn Mower case 3 its petition was timely
filed. In that case the Board held, in effect, that when a contract con-
tained coterminous modification and termination clauses, a broad
notice given under the modification clause, which clause was itself
silent as to the effect of the notice on automatic renewal, implied an
intent to terminate the contract. That holding is not applicable here,
for the contract under consideration expressly states that in case a
2 The proposed changes covered 12 items, which included requests for (1 ) ageneral
wage increase ; ( 2) revised vacation plan; ( 3) additional holidays ; (4) changes in
seniority clause; ( 5) the Employer 's supplying certain work clothes; ( 6) a washup period;
(7) mechanical department merit rating increases ; ( 8) advance in rates of pay for riggers'
and mechanics ; ( 9) establishing of "senior mechanics" classification ; ( 10) reclassification
of certain window washers ; ( 11) changes in time limit in processing grievances; and
(12) new pay rates for temporary supervisors and leadmen
3 108 NLRB 1589.
FISHERMEN 'S MARKETING ASSOCIATION OF WASHINGTON, INC. 189
notice to modify is given the contract will be renewed for another full
term. As the contract is unambiguous in this respect, there is no room
for any inference that the Intervenor in fact intended to terminate the
contract when it gave notice of a desire to modify. Under these cir-
cumstances, we find that on March 7,1955, when the petition herein was
filed, the contract had already renewed itself for another year. Once
the contract renewed itself on January 1, 1955, those limitations set
forth in Section 8 (d) of the Act on the duty to bargain during the term
of an agreement 4 were, of course, applicable. Negotiations for changes
after January 1, 1955, in existing terms of the contract were entirely
voluntary rather than mandatory.5 Under these circumstances, we find
that the proposal for modification of the contract and the action taken
thereon did not unstabilize the existing contractual relationship be-
tween the parties to such an extent as to preclude the application of
our usual contract-bar rules. As the petition was filed during the
term-of the automatically renewed contract,6 it was untimely filed and
the existing contractual relationship constitutes a bar. We shall
therefore dismiss the petition.
[The Board dismissed the petition.]
MEMBER PETERSON took no part in the consideration of the above
Decision and Order.
'Section 8 (d) provides in part that the duty to bargain in good faith "shall not be
construed as requiring either party to discuss or agree to any modification of the terms
and conditions contained in a contract for a fixed period. . . .
a The modification clause states that the contract is renewed "subject . . . to such
changes as may be mutually agreed upon ." We construe this language as not waiving
the right of either party under Section 8 ( d) to refuse to bargain, after the automatic
renewal of the contract , about any matters contained therein.
9 Contrary to the Petitioner 's contention , we find that the document executed on March
25, 1955, was not a new contract , superseding the automatically renewed contract, but
in substance merely incorporated in the renewed contract modifications agreed to by the
parties, a procedure contemplated by the "modification clause" of the old contract quoted
in the text, above.
Fishermen's Marketing Association of Washington , Inc. and
Pacific Coast Fishermen 's Union, affiliated with Seafarer's
International Union of North America, AFL, Petitioner. Case
No. 19-RC-1605. October 4, 1955
DECISION AND ORDER
Upon a petition duly filed under Section 9 (c) of the National Labor
Relations Act, a hearing was held before John H. Immel, Jr., hear-
ing officer. The hearing officer's rulings made at the hearing are free
from prejudicial error and are hereby, affirmed.
114 NLRB No. 49.