Mississippi Lime Co. of Missouri

National Labor Relations Board - Board Decisions

Oct 30, 1946

71 N.L.R.B. 472 (N.L.R.B. 1946)

In the Matter of Mississippi LIME COMPANY OF MISSOURI ,l EMPLOYER
and UNITED GAS, COKE AND CHEMICAL WORKERS OF AMERICA, CIO,
PETITIONER
Case No. 144-R-1.49.-Decided October 30, 1946
Verlie, Eastman ct Schla fly, by Mr. J. L. Schla fly, of Alton, Ill.,
for the Employer.
Mr. Joseph Appelbaum, of St. Louis, Mo., and Mr. Ira 1'Villiam,, of
Ste. Genevieve, Mo., for the Petitioner.
Messrs. Harry H. Craig and John T. Wiley, Jr., of St. Louis, Mo.,
for the Intervenor.
Mr. Emil C. Farkas, of counsel to the Board.
DECISION
AND
'ORDER
Upon a petition duly filed, hearing in this case was held at St.
Louis, Missouri, on July 16, 1946, before Keith W. Blinn, hearing
officer. The hearing officer reserved ruling for the Board on motions
made by the Employer and the Intervenor to dismiss the petition on
the ground that their contract of May 6, 1946, is a bar to an election.
For the reasons stated in Section III, infra, the motions are hereby
granted. The hearing officer's rulings made at the hearing are free
from prejudical error and are hereby affirmed, except as indicated
below.
Upon the entire record in the case, the National Labor Relations
Board makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE EMPLOYER
Mississippi Lime Company of Missouri, a Missouri corporation,
operates a lime quarry and plant in Ste. Genevieve County, Missouri:
During the past year the Employer purchased raw materials and
supplies valued in excess of $100,000, of which more than 50 percent
was purchased from points outside the State of Missouri. During
the same period, the Employer sold products valued in excess of
I The name of the Employer appears as amended at the heal ing
71 N. L. R. B, No. 71.
472
MISSISSIPPI LIME COMPANY OF MISSOURI 473
$100,000, of which more than 50 percent was sold and shipped to points
outside the State of Missouri.
The Employer admits and we find that it is engaged in commerce
within the meaning of the National Labor Relations Act.
II. THE ORGANIZATIONS INVOLVED
The Petitioner is,a labor organization affiliated with the Congress
of Industrial Organizations, claiming to represent employees of the
Employer.
International Hod Carriers' Building and Common Laborers' Union
of America, Local No. 829, herein called the Intervenor, is a labor
organization affiliated with the American Federation of Labor, claim-
ing to represent employees of the Employer.
III. THE ALLEGED QUESTION CONCERNING REPRESENTATION
On May 9, 1945, the Employer executed a collective bargaining
contract with the Intervenor, providing for a 1-year term commencing
June 1, 1945, and for automatic renewal for annual periods there-
after, in the absence of notice to change given by either party to the
other at least 30 days prior to June 1 of any year.
On February 18, 1946, the Employer and the Intervenor began
negotiations for a new contract, and after several conferences a tenta-
tive agreement was reached on May 1, 1946. Arrangements were
made by the parties to reduce this agreement to writing on May 6,
1946, and on that date the parties met again and signed the contract.
Paragraph 2 of the contract states :
It is understood and agreed that this agreement replaces and
supersedes the collective bargaining agreement between the
parties entered into on May 9, 1945.
However, Article 8 provides :
This agreement shall continue in full force and effect from June 1,
1946, through May 31, 1947, and shall thereafter continue auto-
matically from year to year unless reopened in accordance with
the provisions of this Article.
Some ambiguity therefore exists in the terms of the 1946 contract,
in that it is not clear whether the Employer and the Intervenor in-
tended to make it effective immediately upon its execution or upon
the expiration of the 1945 agreement on June 1, 1946.
On April 10, 1946, the Petitioner, by letter, advised the Employer
of its organizational campaign among the Employer's workers, assert-
ing that they had the right to change bargaining agents upon the
termination of the Employer's 1945 contract with the Intervenor.
474 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Thereafter , on May 6, 1946 , the Petitioner notified the Employer, by
letter , that it represented a majority of the employees and requested
recognition as their exclusive bargaining agent. On the same day
the Petitioner filed its petition in this proceeding at the Board's
Regional Office; it is not clear, however , at what time of the day this
was done. The Petitioner 's letter of May 6, 1946, was not received
by the Employer until May 7, 1946, after the execution of the 1946
contract , nor was the Employer advised that the petition had been
filed until much later.
The Employer and the Intervenor contend that the 1946 contract
operates as a bar to a present determination of representatives. The
Petitioner , on the other hand, argues that its petition was filed before
the execution of the contract on May 6, 1946 , and was therefore timely.
No petition was filed in our Regional Office within 10 days of the
notice of April 10, 1946. Consequently , even if , regarded as a valid
claim to representation , this notice could not itself have served to pre-
vent the 1946 contract from barring a current determination of repre-
sentatives.2
Ordinarily an agreement is precluded from operating as a bar if
a petition is filed before its execution .3 In this case , the petition was
docketed on May 6, the very day on which the 1946 contract was
signed. The Petitioner asserted, however, that the contract was not
executed until several hours after the filing of the petition, and
offered some evidence to support its contention ' Even assuming,
arguendo , the correctness of the assertion , this does not detract from
the contract 's effectiveness as a bar. The Board cannot pay heed to
the fractions of a day in matters of this sort. Where , as here, no
formal proceeding is initiated by filing a petition on or before the day
preceding the making of a collective bargaining agreement , the agree-
ment stands as a bar to an election, at least in the absence of the
Employer's actual knowledge , at an earlier hour on the day the
agreement is executed , that a petition has just been filed with the
Board.
We assume, for purposes of this decision , that the new 1946 con-
tract did not become wholly effective until June 1, 1946 , although
it was executed on May 6, 1946.5 It thus appears that the Employer
and Intervenor made their new agreement between the operative date
of the automatic renewal clause, or Mill B date, ° of the 1945 contract
z Matter of.Genci at Electric X-Ray Corporation , 67 N. L R B. 997.
Matter of Ste Genevieve Lime & Quarry Company , 70 ' N. L. R. B. 1259.
4 The hearing officer's ruling striking that testimony is reversed.
6 The testimony indicates that parts of the 1946 contract may have been put into opera-
tion immediately upon its execution , although many others did not go into effect until
June 1, 1946 . We do not accept the view of our dissenting colleague that the old contract
was "abandoned ," or "non -effective."
e The operative date of an automatic renewal clause has come to be known as the "Mill B
date" of a contract . Matter of Mill B, Inc, 40 N. L. It. B. 346.
MISSISSIPPI LIME COMPANY OF MISSOURI 475
(May 1, 1946) and that contract's anniversary date, and that the
new agreement became effective on the anniversary date. There are
many Board precedents holding that the effective and not the execution
date of an agreement controls contract bar questions.7 In many in-
stances that is a salutary rule. We are persuaded, however, that these
precedents should no longer be followed in situations of this particular
character. In the recent Northwestern Publishing Company decision,'
we refused to apply the "premature renewal" doctrine ° to a contract
made between the Mill B and anniversary dates of a superseded agree-
ment. We said, in part :
. . . were we to find the new contract between the Employer and
the Intervenor not to be a bar, we would discourage timely nego-
tiation for continuing stable relations. The new contract in this
case, made effective between the Mill B and expiration dates of
the old agreement, was consummated within the usual period for
contracting parties to negotiate and conclude new agreements gov-
erning their relations for a coming term. Where, as here, this
period is reasonable in time, we fail to perceive how the new con-
tract can be regarded as a premature extension of the old.
Mere also it. was natural for the Employer and the Intervenor to
negotiate and conclude a new agreement in the period between the
Mill B and anniversary dates of the 1945 contract, and to execute it
25 clays before that earlier agreement was due to expire, rather than
wait until the 365th day. The period between the Mill B and anniver-
sary dates was itself reasonably short in time, a mere 30 days 1e Since
they were bound to an agreement which was soon to expire, it was not
extraordinary for the parties to provide that the primary terms of
their new contract were to become effective only after the existing
agreement had run its course. The fact that the contracting parties
made the primary terms of their new agreement effective at the expi-
ration of the old, rather than immediately, should not, in our opinion,
slake their agreement vulnerable to a supervening petition, where
that petition was filed, not only after the contract was executed, but
after the Mill B date of the original contract. As in the Northwestern
case, the action of the contracting parties left unimpaired the right
of the employees to petition the Board to investigate and certify a
new representative at any time before the Mill B date of the old agree-
ment. Indeed, the conduct of the contracting parties operated to ex-
7 Matter of Foster -Grant, Inc., 54 N. L. R. B 802 ; Matter of Kimberly-Clark Corporation,
55 N L R B. 521 ; Matter of S & S Cone Corporation, 57 N. L. R. B 260; Matter of Na-
tional Carbide Corporation , 67 N L. R. B 757. These decisions are reversed only insofar
av they are inconsistent with our opinion herein.
871N L R B 167.
9 Matter of Wichita Union Stockyards Company, 40 N. L R. B 369
"We do not here decide what principle should govern if the "Mill B period " were an
unreasonably long one.
476 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tend their opportunity for several additional days-until the actual
execution of the new agreement. To direct an election in the circum-
stances of this case would prejudice the continuance of stable bargain-
ing relations, by discouraging contracting parties from feeling secure
in executing a new collective agreement until the very instant when
an old contract is due to expire.
The dissenting opinion lays repeated stress upon an assumption
that our decision ignores what are termed "the possibilities of fraud,"
and may tempt employers and labor organizations to antedate their
contracts. Sufficient unto day is the evil thereof. The Board is always
available to receive testimony that a contract has been improperly
antedated. Absent testimony to that effect, the Board majority is
unwilling either to assume that American employers or labor organi-
zations would readily engage in such a practice, or to hesitate to adopt
an otherwise salutary policy because of the fear that a few might
occasionally do so.
For these reasons, we find that the 1946 contract constitutes a bar
to a present determination of representatives. We shall, therefore,
dismiss the petition.
ORDER
The National Labor Relations Board hereby orders that the peti-
tion for investigation and certification of representatives of employees
of Mississippi Lime Company of Missouri, Ste. Genevieve County,
Missouri, filed by United Gas, Coke and Chemical Workers of Amer-
ica, CIO, be, and it hereby is, dismissed.
MR. JOHN M. HOUSTON, dissenting :
Hitherto the Board invariably has directed an election upon a peti-
tion which, as in the present case, was filed between the execution of a
contract and its effective date. Our adoption of this decisional rule
and our continuous adherence to it were premised, in part, upon the
idea that parties to contracts ought not to be afforded an apportunity
to manipulate 11 the date upon which their relationship commenced or
renewed so as to effect a foreclosure of the right of employees to select
new reprsentatives, if they so desired, at reasonable periods. Not only
was it contemplated that the rule would place an effective brake upon
the possibilities of fraud, but it was also considered that, in the inter-
ests of stable industrial practice, it was desirable to encourage defini-
tiveness with respect to establishment of substantive contractual terms
which were to govern the relationship of an employer with his em-
ployees. Lapses in time between the date upon which a contract was
executed and the date upon which its substantive terms became effec-
tive were thought to lessen the chances for the achievement of certainty
11 By antedating a contract made after a rival claim or petition was filed
MISSISSIPPI LIME COMPANY OF MISSOURI 477
which written contracts have as their basic appeal in the field of labor
relations. The Board was additionally motivated by a realization
that a contrary rule would operate to impose an undue burden upon a
rival labor organization to keep in constant awareness of the state of
negotiations between contracting parties, ready at all times to file its
petition whenever execution of a new agreement seemed imminent at
the risk of being foreclosed for a further contractual period of time 12
The decision in this case discards this salutary rule. The factual
circumstances which have persuaded my colleagues to abandon it ap-
pear much less compelling to me and I therefore am unable to agree
with them.
Applying the principles agreed upon by the Board in the recent
Northwestern Publishing Company case, my colleagues apparently
have concluded that, because the petition here was filed after the auto-
matic renewal date of the Intervenor's old contract, the petitioning
union has lost nothing, and should not now be heard to complain ir-
respective of what action the employer and the intervenor may have
undertaken with respect to their contractual relationship. I agree
that a petition which is filed after to automatic renewal period has
begun to run generally raises no question concerning representation.
However, even though recent cases may be interpreted as consecrating
the automatic renewal period to the exclusive and uninhibited use of
contracting parties without fear of intrusion by rival labor organiza-
tions, we have in no -case, of which I am aware, stated that under no
circumstances would a rival petition be entertained if filed after the
so-called Mill B date. Indeed, we took care to express the contrary
in the Northwestern Publishing case itself by pointing out that if the
petition there, albeit, filed after the Mill B date had preceded the ex-
ecution of the contract we would have directed an election 13 I think
it is therefore clear that the mere filing of a petition after the Mill B
date ipso facto does not preclude consideration of the petitioner's claim
to representation, but that the timeliness of suoh a petition depends
upon the status of the contractual relationship which is urged as a bar
to the petition. Since the petition here was filed before the contract
was effective, it follows that the present case resolves itself factually
into the type of situation in which the decisional rule to which I have
adverted is applicable, unless some importunate consideration of policy
now dictates the creation of an exception.
From the insistence of the majority opinion that the principles es-
tablished in the Northwestern Publishing case must govern here, it
would appear that my colleagues consider their decision as a step in
' See Matter of American White Cross Laboratories, Inc, 60 N. L. R B. 1148, at p. 1150,
and cases cited in footnote 5 therein
13 There the execution date and the effective date of the contract were one and the
same-the normal situation.
478 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the direction of industrial stability. I note, however, that between
the execution of the contract and the date upon which it became opera-
tive, there was a period of time in which no certainty existed as to the
terms and conditions of employment governing the relationship of this
employer and his employees. This unsettled hiatus resulted from the
abandonment of the old contract, and the non-effectiveness of the new
one. It is precisely this period which ordinarily we have set aside as
an opportune moment for employees to change bargaining representa-
tives, if they so desire. To deny them the right to make a selection of
representatives during this period hardly strikes me as conducive to
industrial stability. To do so solely because the contracting parties
raise as a bar an ineffective contract appears to be a negation of the very
policy which my colleagues consider of paramount importance in this
case. And, despite the vague limitation upon the immunity of con-
tracting parties fixed by the majority, the danger to the concept that
employees be free, at reasonable periods, to change representatives, is
still inherent in the decision since automatic renewal clauses may now
well be written to provide for unreasonably long periods of time,
thereby creating opportunities for techniques of foreclosure which are
repugnant to basic objectives of the Act.
Nor is there any valid explanation, from another aspect of policy,
for the rejection of our rule that the effective date of a contract con-
trols in issues of this type. I assume that my colleagues would con-
cede that the possibilities of fraud are as extant now as they were when
the cases establishing our rule were decided. Yet the whole effect of
the majority decision in the present case is to pronounce those possi-
bilities negligible and entitled to no consideration. I am not con-
vinced that the present decision discloses any valid reason for a de-
parture from customary practice, and I must dissent from the dis-
missal of this petition.