Moore Drop Forging Co.

National Labor Relations Board - Board Decisions

Dec 22, 1967

168 N.L.R.B. 984 (N.L.R.B. 1967)

984 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Moore Drop Forging Company and International
Union, United Automobile, Aerospace , & Agricul-
tural Implement Workers of America , (UAW),
AFL-CIO,' Petitioner. Case 1-RC-9732
December 22, 1967
DECISION AND ORDER
BY- MEMBERS FANNING, JENKINS , AND ZAGORIA
Upon a petition duly filed under Section 9(c) of
the National Labor Relations Act, as amended, a
hearing was held before Arthur I. McGurth, Hear-
ing Officer. After the hearing was closed, the Re-
gional Director transferred the case to the Board in
accordance with Section 102.67 (h) of the National
Labor Relations Board Rules and Regulations. The
employer and Petitioner have filed briefs in support
of their respective positions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its
powers in connection with this case to a three-
member panel.
The Board has reviewed the Hearing Officer's
rulings made at the hearing and finds that they are
free from prejudicial error. They are hereby af-
firmed.
Upon the entire record in this case, the National
Labor Relations Board finds:
1. The Employer is engaged in commerce within
the meaning of the Act, and it will effectuate the
purposes of the Act to assert jurisdiction herein.
2. The labor organization involved claims to
represent certain employees of the Employer.
3. No question affecting commerce exists con-
cerning the representation of employees of the Em-
ployer within the meaning of Sections 9(c)(1) and
2(6) and (7) of the Act.
The Employer, a Massachusetts corporation,
manufactures and sells hand tools and commercial
drop forgings. It operates two plants in Ohio, four
plants in Springfield, Massachusetts, and one plant
in Chicopee, Massachusetts, and has its principal
place of business at 38 Walter Street in Springfield.
Since approximately 1956 it has entered into labor
contracts with the Moore Drop Forging Die Com-
mittee as collective-bargaining representative of
dieroom employees in the Employer's plants at 336
Birnie Avenue, Springfield, Massachusetts, and at
I Name of Petitioner appears as amended at the hearing
2 All dates are in 1967 unless otherwise indicated.
' Petitioner also alleges that the committee , which did not appear at the
hearing, is not a labor organization , urging in this regard the absence of
meetings , constitution , and bylaws The record indicates that the commit-
tee exists for the purpose of representing employees and has negotiated
labor contracts with the Employer , which provide , enter alia , for grievance
Rear Depot Street, Chicopee, Massachusetts,
known as plant 1 and plant 2, respectively.
In 1965 the Employer entered into a` contract
with the committee for a period of 2 years, from Au-
gust 27, 1965, to August 27, 1967, renewable from
year to year thereafter unless terminated by written
notice from either party 60 days prior to the end of
the second year or the end of'each subsequent year.
On August 1, 1967,2 the committee submitted a list
of proposals to the Employer for modification of the
contract. Despite the late notice, but as it had on
previous occasions, the Employer submitted its
counterproposals to the committee on August 14.
On August 20, a meeting of the employees in the
unit was held at which time the Company's
proposal for a 3-year contract was rejected. Francis
R. Daigneault, vice president and general manager
of the Company, who was a negotiator for the Em-
ployer, called Raymond Griffin, shop steward at
plant 1, on August 24 and was told that the commit-
tee would be coming back with its counter-
proposals. On August 28, the committee met to for-
mulate those counterproposals, and on the same
date the UAW submitted a petition to the Board for
an election in the unit represented by the commit-
tee.
The Employer contends that in the absence of
timely notice the contract was automatically
renewed and acts as a bar, Deluxe Metal Furniture
Co., 121 NLRB 995, 1002. The Petitioner asserts
that Deluxe did not contemplate a situation where,
as here, late notice had been excused over a period
of years, that the Company should be held to have
waived the untimeliness of the notice, that, con-
sequently, automatic renewal was forestalled, and,
therefore, there is no contract bar. Alternatively,
Petitioner contends that the committee is defunct.3
In Deluxe the Board enunciated various changes
in its rules with respect to contract bar, among them
a decision to:
... eliminate its [then] present rule that a
party receiving a late notice under the auto-
matic renewal clause may, by conduct with
respect thereto, waive its belatedness, thereby
having the contract treated as though timely
notice had been given. An untimely notice will,
instead, be treated merely as a request for
modification by mutual assent unless the
parties thereafter clearly terminate the con-
tract.4
The language used is broad and does not suggest
that exceptions to the rule will be found readily; nor
procedures, rates of pay and other terms and conditions of employment.
Consequently , we find that the Committee is a labor organization within
the meaning of Section 2(5).of the Act. N L.R.B. v, Cabot Carbon Co.,
360 U.S 203 (1959), Walker Process Equipment, Inc., 163 NLRB No.
78.
° 121 NLRB995, 1002
168 NLRB No. 134
MOORE DROP FORGING COMPANY 985
do we find one here.5 There is no evidence that the
parties terminated the contract; and the continuing
attempts of the parties to reach agreement on the
proposed modifications, up to and including the
date on which the petition herein was filed, clearly
lead to the contrary conclusion.
Consequently, we hold that Deluxe controls the
instant case, that the Employer, by repeatedly
negotiating with the committee in the absence of
timely notice, did not thereby waive the untimeli-
ness of such notice, and that automatic renewal was
not forestalled. Therefore, unless, as the Petitioner
contends, the Moore Drop Forging Die Committee
is defunct, the contract bars the UAW's petition for
an election.
In the Hershey Chocolate case6 the Board reaf-
firmed its rule that:
... a representative is defunct, and its contract
is not a bar, if it is unable or unwilling to
represent the employees. However, mere tem-
porary inability to function does not constitute
defunctness; nor is the loss of all members in
the unit the equivalent of defunctness if the
representative otherwise continues in ex-
istence and is willing and able to represent the
employees.
The record indicates that the committee was active
and functioning at least as late as August 28, the
day the UAW filed its petition, when the committee
met to discuss its counterproposals with the Com-
pany.At the hearing Griffin, who made an appearance
there for the UAW, testified that the committee no
longer functioned, that he was not a representative
of the dieroom employees, and that the committee
did not wish to intervene in this proceeding. How-
ever, there is nothing in the record to indicate that
Griffin, any of the other committee members, or
any of the rank and file actually resigned from their
offices or membership in the incumbent.
Griffin indicated that he believed he no longer
represented the men as shop steward because a
group of employees had told him that, while the
committee did a fair job, they wanted to be
represented by the UAW, and because he himself
had signed a UAW card. He further testified that he
informed the committee at their meeting of August
28 that a notice from the Board had been posted ad-
vising the employees that a petition for an election
had been filed, which he understood to mean that
they could no longer continue negotiating with the
Company. No further meetings were held, negotia-
tions ceased, and subsequently Griffin refused to
discuss merit increases with the Employer.
It appears that the committee's inactivity was due
largely to Griffin's legal conclusion as to the effect
of the Board's notice and not to inability or un-
willingness to represent the employees. Prior to Au-
gust 28 the committee had submitted proposals for
modification of the contract on August 1; received
the Company's reply on August 14; held a member-
ship meeting August 20; advised the Company on
August 24 that it was considering its counter-
proposals; and, finally, met on August 28 to discuss
its counterproposals. Thus, as late as August 28,
the day the petition was filed, the committee was
ready, willing, and able to represent the employees.
It was not until Griffin advised the committee that
he thought they had no more right to negotiate that
activity stopped.
Similarly, we cannot find that there has been a
clear expression by the employees on the merits of
continued representation by the committee. While
a group of employees advised Griffin that they no
longer wished to be represented by the committee,
the record does not reveal the size or composition
of the group, nor whether they accurately reflected
the opinion of the unit as a whole. Further, when
asked whether the committee wished to be placed
on the ballot, Griffin responded that he could speak
for the majority, but not for all.
Under all of the circumstances of this case, we
cannot hold that the committee's recent inactivity,
even when coupled with the fact that an undeter-
mined number of employees have stated that they
no longer wished to be represented by the incum-
bent committee, proves that the committee is unable
or unwilling to represent the employees.' We do
not believe that the committee is, in fact, defunct,
nor do we believe that it would effectuate the pur-
pose of the Act to terminate its status as bargaining
representative of the employees herein. Ac-
cordingly, we find that the committee is not defunct
for contract-bar purposes.
Since the petition was filed more than 90 days be-
fore the expiration date of the current contract, we
find that the contract is a bar to the petition, and we
shall, therefore, dismiss the petition.8
ORDER
It is hereby ordered that the petition filed herein
be, and it hereby is, dismissed.
11 Additionally , we note that in Deluxe, ibid, the Board overruled
Carter's Ink Co , 109 NLRB 1042, and similar cases. There the company,
while calling attention to the fact that the union had failed to give timely
notice to forestall automatic renewal for the second successive year,
requested the union to submit the desired contractual changes in detail.
The Borad found that the Employer had waived timely notice by failing to
insist on strict compliance with the contract and, therefore, that the con-
tract had terminated and was not a bar to a petition by a rival union
R 121 NLRB 901, 911.
7 New-Press Publishing Co., 145 NLRB 803.
" Leonard Wholesale Meats, Inc., 136 NLRB 1000.