Service Products Corp.

National Labor Relations Board - Board Decisions

Jan 30, 1951

92 N.L.R.B. 1747 (N.L.R.B. 1951)

In the Matter of SERVICE PRODUCTS CORPORATION, EMPLOYER and IN-
TERNATIONAL UNION OF ELECTRICAL , RADIO AND MACHINE WORKERS,
CONGRESS OF INDUSTRIAL ORGANIZATIONS , PETITIONER
Case No. 36-RC-432.-Decided January 30, 1951
DECISION AND DIRECTION OF ELECTION
Upon a petition duly filed under Section 9 (c) of the National Latbor
Relations Act, a hearing was held before William A. McGowan, hear-
ing officer. The hearing officer's rulings made at the hearing are free
from prejudicial error and are hereby affirmed.
Pursuant to the provisions of Section 3 (b) of the Act, the Board
has delegated its powers in connection with this case to a three-mem-
ber panel [Members Houston, Reynolds, and Styles].
Upon the entire record in this case, the Board finds :
1. The Employer is engaged in commerce within the meaning of the
Act.
2. The labor organizations involved claim to represent certain em-
ployees of the Employer.
3. The.Employer and the Intervenor 1 contend that a contract be-
tween them covering employees in the agreed appropriate unit consti-
tutes a bar .to a determination of representatives at this time. The
Petitioner disagrees.
On November 14, 1949, in Case No. 34-RD-10, the Regional Director
held a consent decertification election among employees in the unit,
and on November 22, 1949, certified the results of the election. The
Intervenor won a majority of the votes cast, but, as it was not in com-
pliance with the filing requirements of Section 9 (f), (g), and (h) of
the Act, it was not certified as the exclusive bargaining representative
of these employees 2
On December 28, 1949, the Employer and the Intervenor entered
into a collective bargaining contract, effective as of July 15, 1949, to
July 15, 1950, and renewable thereafter from year to year unless either
party gave written notice to the other of a desire for a specific change
in, or termination of, the contract, 60 days prior to the termination or
any anniversary date. The contract made no provision for modifica-
' United Electrical , Radio and Machine Workers of America , Local 1003.
Harris Foundry & Machine Company, 76 NLRB 118.
92 NLRB No. 245. 1747
1748 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tion of terms during the life of the contract. On the contrary, it spe-
cifically set forth that the wage scale made part of the contract should
remain in effect during the life of the contract. Neither party gave
notice of its desire to terminate or to change the contract 60 days
before July 15, 1950.
As of August 1, 1950, two grievances were pending settlement. be-
tween the Employer and the Intervenor. According to a memoran-
dum circulated by the Intervenor to the employees on or about August
1, 1950, the grievances related, respectively, to instances of report pay
and layoff, allegedly unfair under the terms of the contract. These
grievances had passed through the preliminary stages of negotiation
and were waiting the termination of arbitration proceedings begun
under the contract. On August 1, 1950, the Employer in writing
offered to give a wage increase of 5 cents per hour to employees covered
by the contract,3 to become effective as of August 7, 1950, if the Inter-
venor accepted the offer by that time. The wage increase, however,
was expressly conditioned on the withdrawal of the two pending
grievances. The Intervenor rejected the offer, announcing to the em-
ployees that the Employer's offer had opened up the contract for
negotiation as to wages.
On August 26, 1950, the Petitioner notified the Employer of its
claim to represent the employees and requested a bargaining confer-
ence. On September 1, 1950, the Petitioner filed the petition in the
instant case. On September 25, 1950, the grievances still unsettled,
the Intervenor accepted the Employer's offer for the wage increase,
and the pending grievance proceedings were dropped.. The 5-cent
wage increase became effective as of that date.
The Board has held in earlier representation cases that, when
parties, during the term of a contract, attempt to change its terms
beyond the scope of the contract provisions, the contract will be
deemed opened, and a petition for certification of representatives,
otherwise prematurely filed, will be considered timely .4 The instant
original contract expressly provides that there be no change in wage
rates during the life of the contract. It is clear that the changes go
beyond the terms of the contract. We find, therefore, that the 1949
contract, renewed in 1950, is not a bar to this proceeding.5
s Employees classified as "punch-press , set-up" were excluded from the offer.
4 Shopwell Foods, Inc., et al., 87 NLRB 1112 ; Heinsheinuer Brass, Inc., 69 NLRB 253 ;
and cases cited therein.
The instant case is clearly distinguishable on its facts from the Pacific Northwest Aliops
case, urged by the Employer . Pacific Northwest Alloys Corporation , 91 NLI#B 1323.
" Despite the Employer 's contention , the election held in the decertification proceedings
on November 14, 1949, is not a bar under Section 9 (c) (3) of the Act to an election held
more than 12 months thereafter.
We further find no merit in the Employer 's contention that the Intervenor, as the
"certified" bargaining representative of employees in the agreed unit, was entitled to 1
SERVICE PRODUCTS CORPORATION 1749
A question. affecting commerce exists concerning the representation
of employees of the Employer within the meaning of Section 9 (c)
(1). and Section 2 (6) and (7) of the Act.
4. The following employees of the Employer constitute a.unit ap-
propriate for the purposes of collective bargaining within the meaning
of Section 9 (b) of the Act:
All maintenance and production employees at the Employer's plant
at 201 South Rural Street, Indianapolis, Indiana, excluding office and
clerical employees, guards, professional employees, and supervisors
as defined in the Act.
[Text of Direction of Election omitted from publication in this
volume.]
year of undisturbed bargaining following its "certification " ; and that, even if the contract
of 1949 was reopened , and a new contract substituted, the new contract made during the
"certification" year would be protected . Hudson Transit Lines, Inc., 86 NLRB 709. _ As
noted above, the Intervenor was not in compliance at the time of the decertification election,
and it was not certified . It cannot , therefore , derive from that election the benefits of
certification.