P. R. Mallory & Co., Inc.

National Labor Relations Board - Board Decisions

May 2, 1950

89 N.L.R.B. 962 (N.L.R.B. 1950)

In the Matter of P. R. MALLORY & Co., INC., EMPLOYER AND PETITIONER
and LOCAL 434, INTERNATIONAL UNION OF ELECTRICAL, RADIO &
MACHINE WORKERS, CIO,' and UNITED ELECTRICAL, RADIO &
MACIIINE WORKERS OF AMERICA (IND.)` AND ITS LOCAL No. 434,
UNIONS
Case No. 2-RM-151.Decided May 2, 1950
DECISION
AND
DIRECTION OF ELECTION
Upon a petition duly filed, a hearing was held before Jack Davis
hearing officer. The hearing officer's rulings made at the hearing are
free from prejudicial error and are hereby affirmed.3
Pursuant to the provisions of Section 3 (b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
Herein called Local 434-IUE.
2 The petition erroneously designates this union, herein called the UE, as an affiliate
of the CIO.
3 The following motions made by the UE were reserved by the hearing officer for the
Board's ruling and are considered below, seriatim:
(a) The UE's motion to dismiss the petition on the ground that the Act is unconsti-
tutional is denied for reasons stated in Rite-Form Corset Company, 75 NLRB 174.
(b) The UE moved that the hearing should be abandoned and the petition dismissed
because, in effect, it did not receive fair and impartial treatment daring the hearing.
We have, in view of this charge, carefully scrutinized the entire record in this proceed-
ing and in particular the transcript of testimony at the hearing. We are completely
satisfied that there is nothing therein denoting partiality in the conduct of the hearing, or
that the UE was in any manner improperly limited or restricted in the presentation of
evidence or in the exploration of the pertinent issues. We find that the hearing was
conducted strictly in conformity with the provisions of Section 9 of the Act and the
publicly declared rules and regulations of the Board pertaining to representation hearings.
The motion is accordingly denied.
(c) The IJE moved to dismiss the petition because the Employer's unit position at the
hearing varied from that stated in the petition. We are aware of no rule, nor has any
reason been advanced, which should cause us in an R\I proceeding to depart from our
standard practice of permitting reasonable amendments to petitions at a representation
hearing which do not impair the position of a party at the hearing. The motion is accord-
ingly denied.
(d) The motions to dismiss the petition on the grounds (1) that a subsisting contract
between the Employer and the UE is a bar to this proceeding, and (2) that no question
concerning representation exists, are denied for the reasons stated in paragraph num-
bered 3, infra.
The hearing officer rejected the offer of proof by the UE through which it intended to
show (1) that the IUE and its Local 434 had committed acts of physical violence and
89 NLRB No. 121.,
962
P. R. MALLORY & CO., INC. 963
this case to a three-member panel [Members Houston, Reynolds, and
Murdock].
Upon the entire record in this case, the Board finds :
l.' The Employer is engaged in commerce within the meaning of the
National Labor Relations Act.
2. The Unions are labor organizations 4 claiming to represent cer-
tain employees of the Employer.
3. The UE, following a 1946 Board conducted' consent election,,
was certified as the representative for.the Employer's production and
maintenance employees. Thereafter, the Employer entered into writ-
ten contracts with the UE and its Local 434, the last of these contracts,
having been executed on July 15, 1947. This contract provided that it.
.. . shall remain in full force and effect until July, 15, 1949,,
except that on July 15, 1948, and on July 15 of each year there-
after, during the term of this Agreement, the question of monetary
issues may be opened by either party for renegotiations. If notice
to amend or terminate this Agreement is not sent by registered
mail to the Union, .. . or to the Company, 60 clays prior to,
the end of the then current term, it shall be automatically ex-
tended from year to year. In the event that both parties enter
into negotiations for a new Agreement, this Agreement shall re-
main in effect until a new Agreement has been completed.
made threats of violence against the employees herein, and had fraudulently represented'
to these employees that IUE and UE and their locals were one and the same, in order
to accomplish their defection from the VE and its local, and that for these reasons a
free and uncoerced election cannot now be held, and (2) that by reasons of such fraud
confusion would exist in the minds of the voters if both locals herein appeared on the
ballot ;.,ith the same numerical identification. We affirm the hearing officer's ruling.
Evidence of unfair labor practices is not admissible in representation proceedings. See
Arkansas City Flour Mills, 88 NLRB 1293. In this connection it is noted that the,
UE has not filed unfair labor practice charges. As to the alleged misrepresentation con-
cerning the identity and affiliation of the locals, we believe that any confusion which
may exist in the minds of the employees can best he dissipated, and the desires of the
employees ascertained, by directing an election herein, with the ballot disclosing the.
affiliation of each participant. See Adams Motors, Inc., 80 NLRB 151.8. See also, General'
Motors Corporation, Frigidaire Division, et at., 88 NLRB 450.
The contention by the UE that Local 434-IUE should be excluded from participation in.
this proceeding because it failed to establish its interest among the employees herein by
proof on the record is without merit. (At the hearing Local 434-IUE sought to intro-
duce in evidence 257 signed authorization cards which were properly excluded by the
hearing officer.) We have frequently held that labor organizations named in employer-
petitions need not make a showing of interest to be entitled to participate in proceedings
instituted by the filing of such petitions. Westinghouse Electric Corporation, 89 NLRB
8; Circle F. Mfg. Co., 79 NLRB 702 ; Felton Oil Company, 78 NLRB 1033.
The UE's request that it be furnished a copy of the hearing officer's analysis of the
record is denied, as such analysis is part of the Board's confidential files and is not subject-
to public inspection. J. I. Case Company. 80 NLRB 217.
The UE's contention that Local 434-IUE is not a labor organization is without merit.
The record shows that this Union exists for the purpose of bargaining collectively with,
the Employer in behalf of its employees and therefore conforms to the definition of a'
labor organization set forth in Section 2 (5) of the Act.
889227-51-vol. 89-62
964 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
. On May 2, 1949, Local 434 sent a letter by registered mail to the
Employer stating its intent to "reopen" the contract and giving 60
clays' notice of such intention in accordance with the foregoing pro-
vision in the contract.' Thereafter negotiation meetings were held
during the period from June to November 1949 which were attended
by representatives of the Employer, the UE, and Local 434-UE which
resulted in a final understanding between the parties with respect to
the terms of a new contract. Included in these terms were a new
wage scale as well as other modifications in the provisions of the July
15, 1947, contract. On November 3, 1949, the Employer presented a
draft of these terms to Local 434-UE and agreed to put the new wage
scale into effect immediately, retroactive to October 1, 1949. The
following day, the Employer received a telegram from James B. Carey
of the administrative committee of the IUE, giving notice of the
expulsion of the UE from the CIO on November 2, 1949, and the for-
mation of the IUE which claimed to represent the Employer's em-
ployees. Thereafter, the UE notified the Employer by telegram dated
November 7, 1949, that it challenged the claim of representation made
by the IUE and itself claimed to represent these employees.' It ap-
pears that on November 3, 1949, members of Local 434-UE withdrew
their affiliation from the UE and formed Local 434-IUE which then
also made a claim of representation upon the Employer. As a result
of these conflicting claims the Employer has refused to sign the new
S The UE contends that this letter was not a notice to the Employer as the letter, in
its caption, was addressed not to the Employer but to Local 484-UE. The former presi-
dent of this local, however, testified at the hearing that he himself had signed the letter,
addressed the envelope in which it was inserted to the Employer, and mailed it by regis-
tered mail. He also testified that the letter was intended to be a notice to the Employer
and that the failure to address the letter in its caption to the Employer was by inadvertence.
We are satisfied that the caption is patently ambiguous and was properly understood by
the Employer as a notice directed to it by the local. This is borne out by the fact that
the Employer and the local subsequently treated the letter as a valid notice and entered
into contract negotiations pursuant thereto. We reject the UE's contention that this
notice was not binding on the TJE because it had not authorized it to be sent by the local.
The record contains uncontroverted testimony which shows that the president of the
local presented the letter to an official representative of the UE who authorized it to be
sent, and that UE representatives attended and participated in the subsequent negotia-
tions with the Employer.
6 Both telegrams were received in evidence over the objection of the UE that they were
technically inadmissible. The UE contends that as these telegrams were erroneously
admitted and because there is no other evidence of a claim of recognition by any of the
Unions in this proceeding, no question .concerning representation exists and the peti-
tion should therefore be dismissed. Apart from the claims raised by these telegrams,
the record shows that Local 434-IUE separately demanded recognition and that counsel
for this local made such claim at the hearing in behalf of the local. The position taken
by counsel for the UE at the hearing, especially its insistence that the-.July 15, 1947,
contract which contains a UE recognition clause, still subsists, is consistent only with
a present claim for recognition by the UE. Cf. J. C. Penney Company-Store x#1518,
86 NLRB 920. It is noted that counsel for the UE carefully avoided any disclaimer of
recognition at the hearing. Cf. Reliable Tool Co., Inc., 79 NLRB 1109. We find, apart
from these telegrams, that the Unions herein presently claim recognition from the
Employer as exclusive bargaining representatives of its employees and, accordingly, deny
the motion by the UE to dismiss the petition based upon.the foregoing contention.
P. R. MALLORY & CO., INC. 965
agreement and, although the new wage scale is in effect for its em-
ployees, the Employer continues to abide by all other terms of the July
15, 1947, contract . The instant petition was filed on November 18,
1949.
The UE asserts, and the Employer concedes , that the July 15, 1947,
contract still subsists . The UE, as an alternative , further asserts, in
eff ect, that agreement having been . reached by the parties as to a new
contract , the filing of a later petition is thereby precluded. The UE
accordingly moved for the dismissal of the petition on the ground of
contract bar.
We find no merit in these contentions . We are satisfied that the
.May 2, 1949 , letter constituted a notice to reopen the contract in its
entirety and was not limited to a proposal to renegotiate monetary
issues only . It is significant that the letter gives the 60-day notice by
registered mail required in the renewal clause, whereas no written
notice is required in the wage adjustment clause. Moreover , the ensu-
ing negotiations were not limited to monetary issues but covered other
provisions of the contract . Under these circumstances , we construe
the letter of May 2, 1949 , as intended to prevent automatic renewal of
the 1947 contract .' In the absence of a new agreement between the
parties on July 15 , 1949, the contract would have expired on that date
except for the provision in the contract that it should remain in
effect during negotiations and until a new agreement had been com-
pleted. As such extension transformed the contract into one of indefi-
nite duration it cannot operate to bar this proceedings Nor can the
agreement reached on November 3, 1949, serve as a bar to the petition
as it is unsigned.9
We find that a question affecting commerce exists concerning the
representation of certain employees of the Employer within the mean-
iug of Section 9 (c) (1) and Section 2 (6) and ( 7) of the Act.
4. We find, in accordance with the agreement of the parties , that all
production and maintenance employees at the Employer 's North Tar-
rytown, New York, plant , including timekeepers and watchmen, but
excluding all other employees including executives , office and other
clerical employees , engineering , technical , and professional employees,
guards, time -study employees , the chief timekeper , foremen , assist-
ant foremen , and all other supervisors as defined in the Act , constitute
a unit appropriate for the purposes of collective bargaining within the
meaning of Section 9 (b) of the Act.
7 Standard-Thompson Corporation, 88 NLRB 1229.
8 Kimsley Manufacturing Co., 87 NLRB 651.
9 Kimsey Manufacturing Co., ibid.
966 DECISIONS OF NATIONAL' LABOR RELATIONS BOARD
DIRECTION OF ELECTION 10
As part of the investigation to ascertain representatives for the
purposes of collective bargaining with the Employer, an election by
secret ballot shall be conducted as early as possible, but not later than
30 days from the date of this Direction, under the direction and super-
vision of the Regional Director for the Region in which this case was
heard, and subject to Sections 203.61 and 203.62 of National Labor
Relations Board Rules and Regulations, among the employees in the
unit found appropriate in paragraph numbered 4, above, who were
employed during the payroll period immediately preceding the date
of this Direction of Election, including employees who did not work
during said payroll period because they were ill or on vacation or
temporarily laid off, but excluding those employees who have since
quit or been discharged for cause and have not been rehired or rein-
stated prior to the date of the election, and also excluding employees
on strike who are not entitled to reinstatement, to determine whether
or not they desire to be represented, for purposes of collective bar-
gaining, by Local 434, International Union of Electrical, Radio ^C
Machine Workers, CIO. .
10 Any participant in the election directed herein may, upon its prompt request to, and
approval thereof by, the Regional Director, have its name removed from the ballot.
Local 434-UE has not been ordered placed on the ballot because it has never complied
with Section 9 (f), (g), and (h) of the Act. Moreover, it appears from the representa-
tion of counsel for the UE at the hearing that this local is nonexistent. We are uncertain,
however, from this record, whether this local is in fact in existence or not. If it is in
existence, the appearance of the UE on the ballot is conditioned upon full compliance
within 2 weeks from the date of this Direction, by Local 434-UE with Section 9 (f), (g),
and (h) of the Act. Colum bian Rope Company, 88 NLRB 1448.
. [By order dated May 17, 1950, the Board granted United Electrical. Radio & Machine
Workers of America (Ind.) and its Local No. 434, permission to withdraw its name from
.the ballot.]