Miles Laboratories, Inc.

National Labor Relations Board - Board Decisions

Nov 9, 1950

92 N.L.R.B. 23 (N.L.R.B. 1950)

In the Matter of MILES LABORATORIES , INC., EMPLOYER and DISTRICT
No. 103, INTERNATIONAL ASSOCIATION OF MACHINISTS , PETITIONER
Case No. 13-RC-1412.--Decided November 9, 1950
DECISION AND ORDER
Upon a petition duly filed, a hearing was held before John P. von
Rohr, hearing officer. At the hearing the Employer and District 50,
United Mine Workers of America, and its Local Union 12273, herein
called the Intervenor, moved to dismiss the petition on the grounds :
(a) That a current contract between them is a bar to this proceeding,
and (b) that the units requested by the Petitioner are inappropriate.
For the reasons hereinafter set forth, the motion to dismiss is hereby
granted. 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 National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Chairman Herzog and Members
Houston and Reynolds].
Upon the entire record in this case, the Board finds :
1. The Employer is engaged in commerce within the meaning of
the National Labor Relations Act.
2. The labor organizations involved claim to represent employees
of the Employer.
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 Employer and Intervenor have been under collective bargain-
ing agreements since 1941. The latest agreement between them was
executed on September 15, 1948, for a period of 2 years. Article IX
of this agreement provides :
This agreement shall remain in full force and effect for a period
of two years except as provided in Article 5, Section 1 of this
agreement, from September 15, 1948 and for additional annual
periods of one year unless either party, by written notice to the
92 NLRB No. 7.
23
24 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
other party 60 days prior to September 15, 1950, or September 15th
of any succeeding year serve notice upon the other party of its
desire to cancel this agreement.
Article V, Section 1 provides in part :
The wage rates schedules as established by this agreement and
attached hereto shall become effective September 15, 1948 and
remain in full force and effect for the duration of this agreement
except as here and after provided. The Union or the Company
may, by written notice to the other party 60 days prior to March
15th or September 15th of each year, request conferences for the
purpose of discussions on the wage rates schedules only . . .
-On November 17, 1949, following negotiation of wage revisions
under the latter provision, the Employer and Intervenor executed an
addendum to the contract granting certain increases in wages and
insurance benefits. The addendum also provided that ". .. neither
the Union nor the Company will request opening or cancellation of
the contract as provided for in Article 5, Section 1 until September
15, 1950 and in Article 9 until 60 days prior to September 15, 1951."
The Employer and Intervenor assert that their contract as thus
extended constitutes a bar to this proceeding. The Petitioner con-
tends that the contract is precluded from serving as a bar by the timely
filing of the petition in this case.' It also asserts that it gave timely
notice of its representation claim to the Employer, within 10 days
before filing the petition.,
The effect of the parties' supplemental agreement of November 17,
1949, was to extend the term of the September 15, 1948, contract for
an additional year, at a time when the initial term of the contract had
approximately 10 months yet to run. In similar circumstances we
have held that a contract thus "prematurely" extended does not bar
a representation proceeding upon a petition timely filed within the
contract's original term.3 We have further held, however, that to be
effective in forestalling a contract bar, the petition in such case must
' The Petitioner also contends that the Employer and Intervenor had at the time of the
hearing reopened the 1948 contract for negotiations . The record only discloses , however,
that the parties were in process of renegotiating wages under the limited provisions of
Article V, Section 1, of the contract as extended by the addendum above quoted.
2 Cf. General Electric X -Ray Corporation, 67 NLRB 997 , holding that although informal
notice of a rival representation claim normally prevents a later executed contract from
serving as a bar, such notice must be followed within 10 days by a petition filed with the
Board , in order to preserve the effectiveness of the notice itself in forestalling a contract
bar.
a McCord Corporation , 90 NLRB No . 101 ; Gimbel Brothers , Inc., 87 NLRB 449 ; Western
Electric Company , 87 NLRB 544.
MILES LABORATORIES, INC.
be timely in relation to the automatic renewal, or "Mill B," 4 date
provided in the original contract.5 The petition in this case was filed
on July 17, 1950. As this was approximately the "Mill B" date of
the September 15, 1948, contract, the issue arises as to whether the
petition was in fact timely.
We believe it to be clear from the language of the contractual pro-
visions quoted above that the term of the original contract began on
September 15, 1948.6 The last day.of the contract's initial 2-year
term was therefore September 14, 1950. In the Little Boole case,'
WA observed that bargaining practices indicate that the intent of
parties to contracts containing automatic renewal provisions is to
provide a period in?,mediately before the end of the contract term to
negotiate outstanding differences and thus avoid interruption of con-
tractual relations. In interpreting the automatic renewal provision
in that case,' we concluded that the last day of the contract's original
term should be included, and counted as the final day of the automatic
renewal period in computing the "Mill B" date. The provision in
the present case' even more clearly supports such an interpretation.
Applying these principles of computation to this case,.we find that
the "Mill B" date, on which the contract would have become: auto-
matically renewed and a. rival claim. or petition become untimely, was
July 17, 1950, the very day on which the petition was filed. Thus,
as the petition was not filed before. the effective date of the contract's
automatic renewal provision, we find that it does not itself preclude
the operation of the contract as a bar.
In support of the Petitioner's further contention that, in any event,
it give the Employer a timely informal notice, of its representation
claim before filing its petition, the Petitioner introduced in evidence
a copy of a letter dated July 12, 1950, addressed to the Employer,
claiming majority designation and asking for a bargaining conference.
4 So called for the case of Mill B, Inc., 40 NLRB 346, in which it was first held that a
petition must be filed before a contract's automatic renewal provisions become effective.
5hlodine Alanufactnring Company, 89 NLRB 1360; Swift & Company, 86 NLRB 1329
International. Harvester Co. (McCormick Works), 85 NLRB 1260.
This interpretation of the contract's duration clause is reenforced by the language of
the provisions as to wages and their reopening, set forth above. Thus although the prin-
cipal term of the contract is described as "two years . . . from September 15, 1948," the
provision as to wages recites that they "shall become effective September 15, 1948 and
remain in full force and effect for the duration of this agreement. . . It is apparent,
we believe, that both provisions are intended to describe the same contractual term, and
that the first day of this term was September 15, 1948.
7 Little Rock Furniture Manufacturing Company, 80 NLRB 65.
s The provision there was for notice to be given a specified number of days "prior to
the expiration date."
I. e., that notice should be given "60 days prior to September 15, 1950, or September
15th of any succeeding year."
26 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Petitioner's representative testified that he forwarded the original
of this letter by ordinary (unregistered) mail on July 12 or 13. Sev-
eral witnesses for the Employer, however, testified unequivocally that
the Employer did not receive such a letter. The record contains no
other evidence that informal notice of its claim was given by the
Petitioner to the Employer. We find that it is not established that
the Employer in fact received notice of the Petitioner's representation
claim bfore the petition was filed in this case 10
As the petition in this case. was untimely, and as it is not shown
that the Petitioner gave timely notice of its claim to the Employer
within 10 days before filing its petition, we find that the contract
between the Employer and Intervenor is a bar to this proceeding.
We shall therefore dismiss the petition, without prejudice to the filing
of a new petition at an appropriate time before the extended contract's
expiration date.-
ORDER
IT is HEREBY ORDERED that the petition filed herein be, and it hereby
is, dismissed. 4
10 Snyder Engineering Corporation, 90 NLRB 783.
u In view of our disposition of the contract bar issue , we find it unnecessary to consider
the unit issues involved in this proceeding.