Portland Associated Morticians, Inc.

National Labor Relations Board - Board Decisions

Mar 28, 1967

163 N.L.R.B. 614 (N.L.R.B. 1967)

614 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
DETERMINATION OF DISPUTE entitled proceeding, in which he dismissed the
petition on the ground that a contract between the
Employer and the Professional, Technical and
Office Employees Union, Local No. 11, AFL-CIO,
herein called the Intervenor, which was signed on
the same date that the petition was filed, was a bar.
On October 29, 1966, the Petitioner filed a request
for reconsideration of the Regional Director's
decision, contending for various reasons that the
contract was not a bar. On November 4, 1966, the
Regional Director denied such request, finding that
one of the arguments raised nothing new and that
the others were lacking in merit . Thereafter, in
accordance with Section 102.67 of the National
Labor Relations Board Rules and Regulations,
Series 8, as amended, the Petitioner filed a timely
request for review of the Regional Director's
decision, contending principally that the Regional
Director had erred in finding that the Employer was
not informed at the time of execution of the contract
that a petition had been filed. On November 30,
1966, the National Labor Relations Board by
telegraphic order, granted the request for review.
Thereafter, the Petitioner filed a brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a three-
member panel.
The Board has considered the entire record in this
case with respect to the Regional Director's
determination under review and makes the following
findings:
The Petitioner seeks to represent a unit of all
embalmers, funeral directors, and apprentices who
are employed by the members of the Employer, an
employer association.' There is a history of .
collective bargaining between the Employer and the
Intervenor, involving the employees in the requested
unit . Their last contract expired on July 1, 1966.
Before that date, the Intervenor and the Employer
had commenced negotiations which culminated, just
prior to September 21, 1966, in a final agreement on
the terms of an "Extension of Agreement." The
Employer's attorney on the morning of the 21st
dictated a draft of the extension agreement, which
was made effective retroactively to July 1, 1966. As
he planned to be away from his office during the
afternoon, he instructed his secretary to complete
the draft and to notify the representative of the
Intervenor that it was ready for signature.
The Employer's attorney left his office at
1:40 p.m. and did not return until 5:40 p.m., after
closing time . During his absence, a representative of
the Intervenor reported to his office and signed the
draft of the extension agreement at approximately
2 p.m. When the Employer's attorney returned, he
entered his private office by a rear door, saw the
draft, read it, and affixed his signature thereto. He
then went out to the reception room and found a
Pursuant to Section 10(k) of the National Labor
Relations Act, as amended, and upon the foregoing
findings , and the entire record in this proceeding,
the National Labor Relations Board makes the
following determination of dispute:
1. Employees employed on jobsite erection crews
by Tobasco Prestressed Concrete Company,
Division of Bethel Supply Company, who are
represented by the United Brotherhood of
Carpenters and Joiners of America, Ohio Valley
Carpenters District Council, AFL-CIO, are entitled
to perform all jobsite work necessarily required for
the complete erection and permanent installation of
prestressed , precast, or prefabricated concrete
products manufactured by the Company at its plant
in Tobasco, Ohio, including the patching, rubbing or
grinding , grouting, sacking, and spackling of such
products.
2. Cement Masons' Local Union No. 524,
affiliated with the Operative Plasterers' and Cement
Masons' International Association of the United
States and Canada, AFL-CIO, is not entitled to
force or require, directly or indirectly, the Tobasco
Prestressed Concrete Company, Division of Bethel
Supply Company, its successors or assigns , to assign
any of the above work to the employees of any other
contractor represented by such Union.
3. Within 10 days from the date of this Decision
and Determination of Dispute, Cement Masons'
Local Union No. 524, affiliated with the Operative
Plasterers ' and Cement Masons ' International
Association of the United States and Canada,
AFL-CIO, shall notify the Regional Director for
Region 9, in writing , whether it will or will not refrain
from forcing or requiring , directly or indirectly, the
Tobasco Prestressed Concrete Company, Division of
Bethel Supply Company, its successors or assigns,
by means proscribed by Section 8(b)(4)(D) of the Act,
to assign the above-described work to employees of
such Company or those of any contractor
represented by such Union.
Portland Associated Morticians , Inc. and
Teamsters & Chauffeurs , Local Union
No. 281 , affiliated with the International
Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America
(Independent ), Petitioner. Case 36-RC-2212.
March 28,1967
DECISION ON REVIEW AND DIRECTION OF
ELECTION
BY CHAIRMAN MCCULLOCH AND MEMBERS FANNING
AND JENKINS
On October 25, 1966, the Regional Director for
Region 19 issued a Decision and Order in the above-
The Employer is an association which represents its 14
member funeral homes for the purposes of collective bargaining.
163 NLRB No. 76
WALKER PROCESS EQUIPMENT, INC. 615
notice of a telephone call from Tom Malloy, a
representative of the Petitioner, and a telegram
addressed to the Employer's attorney from that
same representative advising of the Petitioner's
claim of representation and of the fact that the
Petitioner had filed its petition herein. The phone
call was ticketed as having been made at 3 p.m. and
the telegram indicated delivery as of 4 p.m. The
Petitioner had filed its petition at noon on
September 21.
Additionally, the record disclosed that about 2
weeks prior to the date on which the contract was
signed, the Employer's attorney became aware of
employee interest in Petitioner and the fact that a
meeting was held to determine employee affiliation
with that organization. The Employer's attorney
admitted that he assumed that as a result of that
meeting a representation petition would be filed. He
also testified that he had heard that the Teamsters
had not secured a sufficient number of signatures to
support a petition-that the employees may have
been awaiting the outcome of the Intervenor's last
contract proposals. However, he was also advised
that the employees "might not wait, that they might
proceed or that there might be a filing." It also
appears that Mr. Malloy, the Petitioner's
representative, was scheduled to meet with
members of the Employer on September 21. About
11 a.m. that day, the Employer's attorney called Mr.
Malloy's office to advise him that, as he could not
attend, their arranged meeting should be postponed.
Malloy was out of the office and the call was not
completed.
While the evidence indicates that prior to the
signing of the contract the Employer's attorney did
not have actual knowledge of the filing of the
petition, it is clear that the Petitioner not only acted
with reasonable dispatch to inform the Employer
that the petition had been filed, but that the receipt
of the telegram at the office of the Employer's
attorney prior to his execution of the agreement
constituted constructive notice to the Employer of
the filing of the petition. We therefore find,
inapplicable to this case, the rule in Deluxe Metal
Furniture Company,2 that a contract executed on the
same day a petition is filed "will bar an election if it
is effective immediately or retroactively and the
Employer has not been informed at the time of
execution that a petition has been filed." [Emphasis
supplied.] Accordingly, we hold, contrary to the
Regional Director, that the contract is not a bar to
the petition and that there exists a question
concerning representation within the meaning of
Section 9(c)(1) and Section 2(6) and (7) of the Act.
In accordance with the stipulation of the parties,
we find that the following employees of the
Employer constitute a unit appropriate for the
purposes of collective bargaining within the meaning
of Section 9(b) of the Act:
All embalmers, funeral directors, and
apprentices employed _by the employer
members of Portland Associated Morticians,
Inc., excluding all other employees, guards, and
supervisors, as defined in the Act.
[Direction of Election 3 omitted from publication.]
2 121 NLRB 995, 999
J An election eligibility list, containing the names and
addresses of all the eligible voters, must be filed by the Employer
with the Regional Director for Region 19 within 7 days after the
date of this Decision and Direction of Election The Regional
Director shall make the list available to all parties to the election
No extension of time to file this list shall be granted by the
Regional Director except in extraordinary circumstances. Failure
to comply with this requirement shall be grounds for setting aside
the election whenever proper objections are filed Excelsior
Underwear Inc , 156 NLRB 1236
Walker Process Equipment , Inc. and
International Brotherhood of Boiler-
makers, Iron Ship Builders , Blacksmiths,
Forgers and Helpers , AFL-CIO. Case
13-CA-7398.
March 28,1967
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS BROWN
AND JENKINS
On November 3, 1966, Trial Examiner George
A. Downing issued his Decision in the above-entitled
proceeding, finding that the Respondent had
engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist
therefrom and take certain affirmative action, as set
forth in the attached Trial Examiner's Decision. The
Trial Examiner also found that the Respondent had
not engaged in certain other unfair labor practices.
Thereafter, the General Counsel and the
Respondent filed exceptions to the Decision and
briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a three-
member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and briefs, and
the entire record in the case,' and hereby adopts the
' The request of Respondent for oral argument is denied as the
record and briefs in our opinion adequately present the positions
of the parties.
163 NLRB No. 78