Robert Gair Co., Inc.

National Labor Relations Board - Board Decisions

Oct 10, 1945

64 N.L.R.B. 1 (N.L.R.B. 1945)

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In the Matter of ROBERT GAni COMPANY, INC. (TONAWWANDA BOYBOARDS
DIVISION) and INTERNATIONA L BROTHERHOOD or PAPER MAKERS,
A. F. or L. -
Case No. 3-R-1053.-Decided October 10, 1045
Messrs. Rathbonn,e , Perry, Kelley & Dpye, by Messrs . T. R. Iserman
and R. T. Clarke , both of New York City , for the Company.
Messrs . J. G2 ifjin McKierman and R. A. Day , both of Albany, N. Y.,
for The A. F. L.
Messrs. Joseph Lovas and Michael Klune, both of Buffalo , N. Y., for
the C. I.0.
Mr. David P . Easton, of counsel to the Board.
DECISION
AND
ORDER
STATEMENT OF THE CASE
Upon a petition duly filed-,by International Brotherhood of Paper
Makers, A. F. of L., herein-called the A. F. L., alleging that a question
affecting commerce had arisen concerning the representation of em-
ployees of Robert Gair Company, Inc., Tonawanda, New York, herein
called the Company, the National Labor Relations Board provided
for an appropriate hearing upon due notice before Eugene Von Well-
sheim, Trial Examiner. Said hearing was held at Buffalo, New York,
on August 7, 1945. The Company, the A. F. L., and Paper Workers.
Organizing Committee, Local 137, C. I. 0., herein called the C. I. 0.,
appeared and participated. All parties were afforded full opportunity
to be heard, to examine and cross-examine witnesses, and to introduce
evidence bearing on the issues. The Trial Examiner's rulings made
at the hearing are f ree from prejudicial error and are hereby affirmed.
All parties were afforded an opportunity to file briefs with the Board.
Upon the entire record in the case, the Board makes the following
FINDINGS OF FACT
1. TILE BUSINESS OF THE COMPANY
Robert Gair Company, Inc. (Tonawanda, Boxboards Division), is
a Delaware corporation licensed to conduct business in the State of
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New York. It is engaged at its Tonawanda, New York, plant, with
Which we are concerned herein, in the production of boxboard. Be,-
,tween June 1, 1944, and June 30, 19451. the Company used at its
Tonawanda plant raw materials valued in excess of $2,400,000, of
which more than 20 percent represents shipments from points outside
the State of New York. During the same period, the Company manu-
factured at' said plant finished products valued in excess of $3,450,000,
of which- more than 30 percent represents shipments to points outside
the State of New York.
We find that the Company is engaged in commerce within the mean-
' ing of the National Labor Relations Act.
H. THE ORGANIZATIONS INVOLVED
International Brotherhood of Paper Makers, affiliated with the
American Federation of Labor, and Paper Workers Organizing Com-
mittee, Local 137, affiliated with the Congress of Industrial Organiza-
tions, are labor organizations admitting to membership employees of
the Company.
III. THE ALLEGED QUESTION CONCERNING REPRESENTATION
By telegram dated June 29, 1945, the A. F. L. requested recogni
tion - from, the Company as the representative of certain of its
-employees. Subsequently, the Company refused such recognition
until the A. F. L. had been certified by the Board.
On May 10, 1944, the Company and the C. I. 0., which was then the
-duly certified representative of the Company's employees it its Tona-
wanda plant, executed a collective bargaining agreement covering
these employees, and containing the following termination clause :
This agreement . .. shall continue in full force and effect until
May 10, 1945, and from year to year thereafter unless thirty (30)
days before any expiration date notice to amend or terminate is
given-by either party to the other,. in which event the agreement
shall terminate on such, expiration date
By letter dated April 30, 1945, 20 days after the effective date of the
automatic renewal clause, the C. I. O. requested that the Company
meet with • it for the purpose of negotiating changes. ,in the above
agreement. The Company replied by letter dated May 2, in which
it referred to the above-cited clause, and took the position that the
proposed conference was not in order inasmuch as' the contract had
been automatically renewed pursuant thereto. On May 5,' the C. I. O.
'in a letter again requested a_bargaining conference with the Company,
stating in effect, that the failure to give proper notice was merely an
oversight, and requesting that the Company reconsider and waive this
{`technicality." In an 'answer dated May 7, the Company refused.
ROBERT GAIR COMPANY, INC. 3
On June 18, the C. I. 0. forwarded its proposed contract changes
to the Company, apparently in accordance with a request from it.
Six days'later, by letter dated June 24, the Company replied, stating,
"Our contract is not open for the negotiations or amendments and .. .
we do not contemplate opening it for such negotiations at this time."
However, in this letter the Company agreed that it would enter into
discussions with the C. L 0. concerning "functional rates," if such
-discussions were "not taken as opening the contract or as a waiver by
the Company or the Union of any of their respective rights under the
contract . ." On June 26, the -C. I. 0. agreed by letter to enter
into such discussions, and 'asked for the Company's definition of
"functional duties and rates." The Company answered on June 30,
setting July 11 as a date for these discussions. On July 3, the C. I. 0.
suggested July 16 as the meeting date. Three days later the Com-
pany, by letter, postponed the meeting for an indefinite period. On
June 10, the C. I. 0. submitted to the Company its proposed wage
changes. The Company replied by letter, dated July 12, charac-
terizing the C. I. O.'s proposals 'as "extravagant," and postponing all
discussion until the termination of the instant proceeding, which had
been initiated by a petition filed on July 5, 1945.
The C. I. 0. contends that its contract dated May 10, 1944, has been
automatically renewed and constitutes a bar to this proceeding, inas '
much as the A. F. L: gave the Company notice of its claim to repre-
sentation after such automatic renewal. The Company asserts that
the contract is still in effect; it does not specifically contend that the
agreement- constitutes a bar, but it maintains that the terms of the
contract are binding upon the employees of the Tonawanda plant,
regardless of which organization represents them. The A. F. L.
contends, in effect, that the correspondence above set'forth is evidence
of the fact that the Company and the C. I. 0. terminated the contract,
thus permitting the entertainment of its petition. ' ,
From the foregoing facts, it is apparent that the C. I. O.'s demands
,for modification of the contract were made in untimely fashion and
that the automatic renewal clause had already taken effect: Its
-attempts to induce the Company to waive this "technicality" were
unsuccessful, the Company having persisted in taking the position
'that the contract had been renewed until May 10, 1946. This situa-
tion was not altered by the Company's willingness, as late as June'
1945, to review the C. I. O.'s proposed changes and, ultimately, to
discuss "functional rates," for it was understood by the contracting
parties that the agreement was to continue in operation. This under-
standing, in the circumstances, was tantamount to a clause permit-
ting an adjustment of wages during the life of the contract, and
any dealings had pursuant thereto did not terminate the agree-
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ment? Accordingly, we find that the agreement between the Com-
pany and the C. I. 0., as automatically renewed on April 10, 1945,
precludes a present determination of representatives.' We shall dis-
miss the petition herein, but without prejudice to 'the right of A. F: L.
to file a new petition a reasonable time prior to the next automatic
renewal date of the contract.
ORDER
Upon the basis of the foregoing findings of fact, and upon- the
entire record in the case, the National Labor Relations Board hereby
orders that the petition for investigation and certification of repre-
sentatives of employees of Robert Gair Company, Inc. (Tonawanda
Boxboards Division), Tonawanda, New York, filed by International
Brotherhood of Paper Makers, A. F. of L., be, and it hereby is, dis-
missed.
1 See Matter of Story and Clark Piano Co , 59 N L. R B 185 ; see also Matter of Green
Bay Drop Forge Company, 57 N. L. R. B. 1417.
2 See Matter of Marvel-Schebler Division , Borq -Warner Corporation, 56 N. L. R. B 105;
see also Matter of Mill B, Inc ., et al, 40 N. L . R B. 346.