Marston Corp.

National Labor Relations Board - Board Decisions

Mar 10, 1958

120 N.L.R.B. 76 (N.L.R.B. 1958)

76 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
copy of the motion served on Local 35 was not available to its counsel.
If the latter, the factual allegations in the motion relate solely to
Board proceedings involving Local 35 or matters within its peculiar
knowledge. We will not, in any event, require proof of the Employer's
allegations as the only matters alleged therein which we deem ma-
terial herein are those pertaining to the various proceedings before
the Board recited above and the non-compliance of Local 35, of which
we take official notice.
The allegation in Local 35's response concerning the Employer's
motivation or its unfair labor practices are not relevant here. As to
the appropriateness of the procedure utilized by the Employer, it has
selected a method of seeking termination of Local 35's certificate
which has heretofore been sanctioned by the Board 2
Therefore, having carefully considered the Employer's motion, and
being satisfied that the circumstances related herein warrant the
exercise of the Board's powers over its certificate as requested by the
Employer,
IT Is ORDERED , that the certificate issued by the Board on June 1,
1956, to International Chemical Workers Union, Local 35, AFL-CIO,
as the exclusive bargaining representative of the Employer's em-
ployees at its Lakeland, Florida, plant, be, and it hereby is rescinded.
MEMBER RODGERS took no part in the consideration of the above
Order Rescinding Certificate.
a Telegraph Publishing Company, 102 NLRB 1178.
Marston Corporation and International Union, United Auto-
mobile, Aircraft & Agricultural Implement Workers of Amer-
ica, AFL-CIO, Petitioner. Case No. 7-RC-3460. March 10, 1958
DECISION AND DIRECTION OF ELECTION
Upon a petition duly filed under Section 9 (c) of the National
Labor Relations Act, a hearing was held before Iris H. Meyer, hear-
ing 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 an industrial processor engaged at its Detroit,
Michigan, plant in chemically processing and in painting and pack-
aging parts and equipment. From about November 12, 1956, when
1 As in our opinion the record and the briefs adequately set forth the facts and the
positions of the parties , the motion of Metal Processors Union , Local 28, International
Union of Doll and Toy Workers of the United States and Canada , AFL-CIO, hereinafter
called the Intervenor , for oral argument , is hereby denied.
For reasons set forth below, the motions of the Employer and the Intervenor to dismiss
the petition on contract bar grounds are also denied.
120 NLRB No. 10. -
MARSTON CORPORATION 77
it began operations, through March 31, 1957, a period of approxi-
mately 41/2 months, the Employer made sales in Michigan totaling
about $44,000 to 5 corporations, over each of which the Board would
exercise jurisdiction on the basis of direct outflow from Michigan.
On the basis of the above sales projected over a 1-year period, the
Employer's indirect outflow will exceed $100,000 annually? We
therefore find that the Employer is engaged in commerce within the
meaning of the Act, and that it will effectuate the policies of the
Act to assert jurisdiction in this case.3
2. The labor organizations involved claim to represent certain em-
ployees of the Employer.
3. The Employer and the Intervenor contend, and the Petitioner
denies, that a current collective-bargaining agreement between the
Employer and the Intervenor, covering employees involved herein,
constitutes a bar to this proceeding.
On March 15, 1957, the Employer and the Intervenor executed a
"Recognition Agreement," in which the Employer recognized the
Intervenor as the exclusive bargaining representative of the former's
employees. Although this agreement provided, among otherthings,
for a union shop, set forth certain provisions relating to seniority,
and had a wage schedule appended thereto, no contract term was
specified and the parties agreed therein that, within 60 days of the
signing of the agreement, they would negotiate another contract
covering wages, working conditions, and all fringe benefits of the
above employees. On March 22, 1957, the Petitioner sent a letter to
the Employer by certified mail, in substance claiming to represent a
majority of the Employer's employees and expressing the Petitioner's
desire to begin bargaining negotiations; this letter was received at
the ' plant on March 23, a Saturday. On the following Mon-
day, March 25, 1957, at 2:30 or 3 p. m., the Employer and the In-
tervenor entered into a complete collective-bargaining agreement,
covering all the Employer's employees, with the usual exclusions, ef-
fective from that date to and including April 1, 1960, and for 1 year
thereafter in the absence of notice. This agreement encompassed not
only the subjects covered by the recognition agreement,4 but also
such additional subjects as hours of work, working conditions, reasons
for discharge, grievance procedure, leaves of absence, vacations, and
holidays. The Petitioner's claim did not come to the attention of the
Employer's vice president in charge of labor relations until after
the execution of the second agreement. On the next day, March 26,
the Petitioner filed its petition for a production and maintenance
unit.
2 Cf. Miller Container Corporation, 115 NLRB 509
'Jonesboro Grain Drying Coopev ative, 110 NLRB 481, 484; The T. H. Rogers Lumber
Company, 117 NLRB 1732, 1733, 1735.
* All these matters were treated somewhat differently in the two agreements
,7$ DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Intervenor asserts, in substance, that each agreement between
the Employer and the Intervenor bars an election at this time. The
Employer relies on the second agreement alone. As to the first agree-
ment, the Board has held that agreements which are merely "tempo-
rary and provisional in character" and which the parties contemplate
,superseding with a permanent agreement, cannot serve as a bar.' In
the instant case, it is clear that the first agreement, which was designed
to continue in,effect only until, within a limited period, the parties had
negotiated a permanent contract, was merely temporary and provi-
sional in character,; it therefore cannot serve as a bar to this
proceeding.
Nor:-can the second agreement serve as a bar, as the Employer
received the Petitioner's letter claiming representation 2 days before
the execution of that agreementand the Petitioner filed its petition
within 10 days after its claim .7
As we have found that neither agreement may serve as a bar to
this proceeding, we find, that a question affecting commerce exists
concerning the representation of employees of the Employer within
the meaning of Section 9 (c) (1) and Section 2 (6) and (7) of the Act.
4. The parties,generally agree that ,a production and maintenance
,unit, including shipping and receiving personnel, but excluding pro-
fessional employees, guards, and supervisors as defined in the Act, is
appropriate. However, the Petitioner, would exclude office clerical
employees, and the Employer and the Intervenor would include them,
on the ground that they were included in the overall units established
in the agreements described above. As their unit placement is in
issue, we,-hall exclude office clerical employees from the production
and .maintenance unit, notwithstanding their previous inclusion
therein by agreement of the parties.'
We find that all production and maintenance employees at the
Employer's plant at Detroit, Michigan, including shipping and re-
ceiving personnel, but excluding office clerical employees, professional
employees, guards, and supervisors as defined in the Act, constitute a
Bridgeport Brass Company ,-Aluminum Division , 110 NLRB 997.
As the Petitioner 's claim was addressed to the Employer, and not to any specific
Individual , we reject the contention of the Employer and the Intervenor that this claim
was not "received" Until after the execution of the second agreement , when it first came
to the attention of the Employer 's vice president in charge of labor relations. Belle-Moe,
Inc., 81 NLRB 6, footnote 3. Consequently , Snyder Engineering Corporation , 90 NLRB
783, and The Carborundum Company, 78 NLRB 91 , relied on by the Employer , are clearly
distinguishable because in those cases the petitioners addressed their letters to specific
individuals The fact that the Petitioner 's claim was delivered on a Saturday, when the
plant was not normally open, is immaterial under the circumstances of this case, as the
claim was in any event received and available to the Employer in ample time before the
agreement of March 25 was executed.
7 General Electric X-Ray Corporation , 67 NLRB 997.
8 Dura Steel Products Company, 109 NLRB 179 , 182 As we exclude office clerical
employees for the reasons indicated , we find it unnecessary to consider whether they are
also confidential employees.
SAFEWAY TRAILS, INC. 79
-unit appropriate for the ,purposes of collective bargaining within the
meaning of Section 9 (b) of the Act.
5. The Petitioner has filed charges against the Employer in Case
No. 7-CA-1694, alleging, among other things, that the Employer, by
,executing the aforementioned contracts, violated Section 8 (a) (2) of
the Act. The Petitioner nevertheless desires to proceed to an election
at this time, and it appears that the alleged violation of Section 8 (a)
'(2) is related at least in part to the unresolved question concerning the
representation of the Employer's employees. Under these circum-
-stances, we find that direction of an immediate election at this time,
without requiring withdrawal of the Section 8 (a) (2) charges, will
effectuate the policies of-the Act. Such direction is, however, without
prejudice to, and any certification resulting therefrom shall be spe-
cifically conditioned upon, any determination which may be made
concerning the status of the Intervenor here in the pending Case No.
7--CA-1694.9
[Text of Direction of Election omitted from publication.]
ME3MERS'RODGERS and BEAN took no part in the consideration of the
above Decision and Direction of Election. '
6 See New York chipping Association, etc., 107 NLRB 364 , 376; Michigan Bell Telephone
Company, 63 NLRB 941, 944 , and cases cited therein.
-Safeway Trails, Inc. and Division 1112, Amalgamated Asso-
ciation of Street , Electric Railway and Motor Coach Em-
ployees of America , AFL-CIO, Petitioner. Case No. 4RC-3490.
March 10, 1958
DECISION AND DIRECTION OF ELECTIONS
Upon a petition duly filed under Section 9 (c) of the National
Labor Relations Act, a hearing was held before Alan Zurlnick, hearing
officer. The hearing officer's rulings made at the hearing are free
from prejudicial error and are hereby affirmed.
Pursuant to the provisions of Section 3 (b) of the Act, the Board
has delegated its powers in connection with this case to a three-member
panel [Chairman Leedom and Members Jenkins and Fanning].
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 certain em-
ployees of the Employer. Lodge No. 1023, Brotherhood of Railroad
Trainmen, hereinafter referred to as BRT, intervened on the basis
of a contractual interest in the Employer's drivers. Lodge 447, Dis-
120 NLRB No. 13.