O. W. Siebert Co.

National Labor Relations Board - Board Decisions

Aug 11, 1944

57 N.L.R.B. 1273 (N.L.R.B. 1944)

In the Matter of O. W. SIEBERT COMPANY and LOCAL 154, UNITED
FURNITURE WORKERS OF AMERICA (CIO)
Case No. '1-R-1921:Deeided August 11, 19.44
Mr. Samuel M. Salny, of Fitchburg, Mass., for the Company.
Grant and Ahgo ff, of Boston, Mass., by Mr. Sid,7iey S. Grant, for
the -Union. ,
111r. William C. Baisiiiger, Jr., of counsel to the Board.
'DECISION
AND
DIRECTION OF ELECTION,
STATEMENT OF THE CASE
Upon petition duly filed by Local 154, United Furniture Workers
of America (CIO), herein called the Union, alleging that a question
affecting commerce had arisen concerning the representation of em-
ployees of O. W. Siebert Company, Gardner, Massachusetts, herein
called the Company, the National Labor Relations Board provided
for an appropriate hearing upon due notice before Leo J. Halloran,
Trial Examiner. -Said hearing was held at Gardner, Massachusetts,
on July 6, 1944. The Company and the Union appeared and par-
ticipated. All parties were afforded full -opportunity to be heard,
to examine and cross-examine witnesses, to introduce evidence bearing
on the issues, and-to file briefs with the Board. At the hearing the
'"Company moved for dismissal of the petition on the ground that
a valid and subsisting contract between it and the Union, covering
the employees in the unit petitioned for, constitutes a -bar to this
proceeding. The Trial Examiner reserved ruling upon this motion for
the Board. For reasons stated in Section III, infra, we hereby
deny the motion. At the hearing the parties stipulated, and it is
hereby directed, that the evidence adduced in Hatter of Conant Ball
Com^pany,1 insofar as pertinent, be incorporated in and made a part
of the record in this case. The Trial Examiner's rulings made at
the hearing are free from prejudicial error and are hereby affirmed.
' Case No 1- R-1919 , 57 N L. R. B. 1262.
57 N L. R B, No. 193
t
1273
1274 DECISIONS OF NATIONAL' LABOR RELATIONS. BOARD
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
I. THE BUSINESS OF THE COMPANY
O. W. Siebert Company. is a Massachusetts corporation engaged
at a plant located in Gardner, Massachusetts, in the manufacture of
baby carriages. During the calendar year 1943, 'the Company pur-
chased raw materials consisting of lumber, fiber, and steel valued in
excess of $150,000 of which approximately 80 percent was shipped
to the Company's plant from points outside the Commonwealth of
Massachusetts. During the same period, the'Company manufactured
over $300,000 worth of finished products, of which approximately
90 percent was shipped to points outside the Commonwealth of
Massachusetts. The Company' admits, and we find, that it is engaged
in commerce within the meaning of the National Labor Relations Act.
H. THE ORGANIZATION INVOLVED
Local 154, United Furniture Workers of America, is a labor organ-
ization affiliated with The -Congress of Industrial Organizations,
admitting to membership employees of'the Company.
III. THE QUESTION CO*ERNING REPRESENTATION
On March 13, 1942, the Union and the Company entered into a
collective bargaining contract, covering certain of the Company's
employees, which,, by, its terms, was to remain in effect until June 1,
1943, and "from year to year thereafter unless either party shall notif3
the other in writing by registered mail of' proposed termination,
changes, or alterations thirty days before the expiration' date hereof
'or before June 1 of any subsequent year." On March 19, 1943, the
contracting parties executed a supplementary agreement providing
for certain changes in the existing contract, including a change of the
expiration date to May 1, 1944, and omitting the automatic renewal
clause, but providing that upon the written request of either party
-made 30 days prior to the expiration date, the parties would' commend
negotiations fora new contract. On April'7, 1944, the Union advised
the Company in writing of its desire to renew the contract with certain
changes. Also in this letter the Union admitted that due to an error in
its records it had thought the expiration date of the contract was
'June 1, 1944, rather than May 1, 1944, and requested the Company to
overlook this error which it claimed to have been-made in good faith.
On April 10, 1944, the Company, - in answer to the Union's letter,
0. W. SIEBERT COMPANY- 1275
informed the- Union that it had no wish to take advantage of the
error obviously made' by- the Union in good faith. Thereafter- on
April 25, 1944, the Union submitted to the Company a memorandum
of the proposed changes it desired to make in the "renewal agreement."
On April 26,1944, the Company wrote the Union requesting proof that
it currently represented a majority' of the Company's employees in
the contract unit., On April 27, 1944, the Company and the Union
executed a document which extended their existing contract to July 1,
1944, "without prejudice to the rights of either of the parties hereto
had this extension not been executed and * * * subject to can-
cellation or termination by mutual agreement at any time prior to
July 1, 1944." On May 18, 1944, the Union filed its petition herein.
Apparently neither of the parties contends that there is now in
effect any bargaining contract which constitutes a bar to this pro-
ceeding. Although the Company predicates its motion for dismissal
of the petition upon the continued existence of the March 13, 1942,
contract, as ' amended, it does not claim that this contract is now in
force, but asserts that it filed the motion in order to obtain a ruling
by the Board that the contract has in fact expired. Under the terms
of the supplemental agreement dated March 19, 1943, the expiration
date of the contract between the parties was definitely stated as May 1,
1944, a date now past. The most the parties did by their subsequent
action was to extend that agreement to July 1, 1944, a date which is
now also past. , Consequently, since the contract is not now in effect,
it cannot constitute a bar to a determination of representatives at
this time.,
A statement prepared by a Field Examiner of the Board, introduced
into evidence at the hearing, indicates that the Union represents -a
substantial number of employees in the unit hereinafter found to be
appropriate.2
We find that a question affecting commerce has arisen concern-
ing the representation of employees of the Company within the mean-
ing of Section 9 (c) and Section 2 (6) and (7) of the Act.
IV. THE APPROPRIATE UNIT,
The Union seeks a bargaining unit comprised of all employees of the
Company, excluding executives, superintendents, 'foremen, salesmen,
and office and clerical 'employees. The unit established by the afore-
mentioned contract between the parties covered "all employees except
executives, superintendents, firemen, salesmen, office employees, fore-
men, engineers, and truck drivers." The Company opposes the inclu-
2 The Field Examiner reported that the Union submitted a current ledger book containing
the names of 108 dues -paying members and that there are approximately 180 employees
in the unit for which the Union is petitioning.
•1276 DECISIONS OF NATIONAL LABOR- RELATIONS BOARD
sion in the proposed unit of firemen, engineers,3 and truck drivers,
contending that the contract unit should not be altered. For reasons
stated in the Conant Ball Company case, mentioned above, we shall
exclude the firemen, engineers, and truck drivers employed by the
Company from,the appropriate unit. Our finding in this respect,
however, shall not preclude a later determination, based upon a new
petition and a more comprehensive record; that these employees may
be afforded opportunity to vote as to their inclusion in the larger unit
herein found appropriate.
We find that all employees of the Company, excluding firemen, en-
and clerical employees, execu-gineers, truck drivers, salesmen, office'
tives, superintendents, foremen, and all other supervisory employees
with authority to hire, promote, discharge, discipline, or otherwise
effect changes in the statu's,of employees, or effectively recommend
such action constitute a unit appropriate for the purposes of collective
bargaining within the meaning of Section 9 (b) of the Act.
V. THE DETERMINATION OF REPRESENTATIVES
We shall.direct that the question concerning representation, which
has arisen be resolved by an election by secret ballot among the em-
ployees in the appropriate unit who were employed during the pay-
roll period immediately preceding the date of the Direction of Elec-
tion herein, subject to the limitations and additions set forth in the
Direction.
DIRECTION OF ELECTION
By virtue of and pursuant to the power vested in the National Labor
Relations Board by Section 9 (c) of the National Labor Relations
Act, and pursuant to Article III,-Section 9, of National Labor Rela-
tions Board Rules and Regulations-Series 3, as amended, it is hereby
DIRECTED that, as part of. the investigation to ascertain representa-
tives for the purposes of collective bargaining with O. W. Siebert
Company, Gardner , Massachusetts , an election by secret ballot shall
be conducted as'early as possible , but not later than thirty ( 30) clays
from the date of this Direction , under the direction and supervision
of the Regional Director for the First Region, acting in this matter
as agent for the National Labor Relations Board, and subject to
Article, III, Sections 10 and 11 , of said Rules and Regulations, among
the employees in the unit found appropriate in Section IV, above,
who were employed during the pay-roll period immediately preceding
the date of this Direction, including employees who, did not work
during said pay-roll period because, they were " ill or on vacation, or
The engineers are apparently not professional or technical employees.
0. W. SIEBERT COMPANY 1277
temporarily laid off, and including employees in the armed forces of
the United States who present themselves. in person, at the polls,' but
excluding any who have since quit or been discharged for cause, and
have not been rehired or reinstated prior to the date of the election, to
determine whether or not they desire to be represented by Local 154,
United Furniture Workers of America (CIO), for the purposes of
collective bargaining.
CHAIRMAN MILLIS took no part iii the consideration of the above
Decision and Direction of Election.