The Utilco Co.

National Labor Relations Board - Board Decisions

Jun 16, 1972

197 N.L.R.B. 664 (N.L.R.B. 1972)

664 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Utilco Company and United Steelworkers of
America, AFL-CIO, Petitioner. Case 9-RC-9385
June 16, 1972
DECISION AND DIRECTION OF
ELECTION
Upon a petition duly filed under Section 9(c) of the
National Labor Relations Act, as amended, a
hearinf was held before Hearing Officer Edward C.
Verst Af the National Labor Relations Board.
Following the hearing and pursuant to 'Section
102.67 of the Board's Rules and Regulations, the
Regional Director for Region 9 transferred this case
to the Board for decision. The Employer filed a brief.
The Board has reviewed the Hearing Officer's
rulings made at the hearing and finds that they are
free from prejudicial error. They are hereby affirmed.
Upon the entire record in this case, including the
brief, the Board finds:
1. The parties stipulated, and we find, that the
Employer is engaged in commerce within the
meaning of the Act. We further find that it will
effectuate the purposes of the Act to assert jurisdic-
tion herein.
2. The parties stipulated, and we find, that the
Petitioner is a labor organization within the meaning
of Section 2(5) of the Act.
Utilco Workers Association, herein called Interve-
nor, was permitted to intervene at the hearing on the
basis of its contract interest. The Intervenor is an
organization of employees of the Employer which
has represented the employees in collective bargain-
ing pursuant to a collective-bargaining agreement
which ran from August 22, 1969, to December 31,
1971. It has an elected president and a governing
"conpmittee." There are no dues. The record shows
that employees participate in the organization, which
has negotiated with the Employer concerning terms
and conditions of employment and has processed
grievances on behalf of employees. We find that the
Intervenor is a labor organization within the mean-
ing of Section 2(5) of the Act. Both labor organiza-
tions involved claim to represent certain employees
of the Employer.
3. Contrary to the contention of the Employer, a
question affecting commerce exists concerning the
representation of certain employees of the Employer
within the meaning of Section 9(c)(1) and Section
2(6) and (7) of the Act.
It is the Employer's contention that the instant
petition should not be entertained because a prior
petition was filed during the last 60 days of the then
' 158 NLRB 956
z If the parties reach a valid collective-bargaining agreement during
those 60 days, the Board 's contract-bar rules will presumably operate to
197 NLRB No. 103
existing contract between the Employer and the
Intervenor, which petition was not withdrawn until
after the contract expired, and because the instant
petition was filed immediately thereafter. Under the
authority of Electric Boat Division, General Dynamics
Corporation,' the Employer argues that the pendency
of the prior petition prevented the contract parties
from enjoying the full 60-day insulated period before
the contract expired, free from the uncertainty of
Petitioner's rivalry for representation of the employ-
ees, and that therefore the parties should have been
granted an additional 60-day bargaining period, after
which a new petition would be entertained only if a
question1concerning, representation. then, exists.2
The contract, as stated, ran from August 22, 1969,
to December 31, 1971. Petitioner filed a petition on
December 14, 1971, in Case 9-RC-9357, seeking to
represent certain employees who were represented by
Intervenor in the contract unit. The Regional
Director mailed a notification of the filing of the
petition to the Employer on December 16, which was
received in due course and posted on the plant
bulletin board. Apparently not receiving any re-
sponse from the Employer, the Regional Director
issued a Notice of Representation Hearing on
December 28, 1971. The following day, the Regional
Director received a letter from Employer's counsel,
advising him of the existence of the contract.
Meanwhile, negotiations had been going on over a
new contract. The parties had negotiating meetings
on November 10, November 29, and December 27,
1971, at which date they experienced a "communica-
tion breakdown" and did not meet again before the
contract expired. The representation petition was
never mentioned ink theirs negotiating) sessions.
The Regional Director permitted the withdrawal of
the petition in Case 9-RC-9357, and the filing of the
petition in the instant proceeding, on January 6,
1972. The Employer requested review of the Region-
al Director's order allowing the withdrawal of the
original petition on the ground that the order should
have specified that no new petition would be
entertained for a period of 60 days. On January 19,
1972, the Board denied review, without prejudice to
the Employer's reasserting its position at the hearing
on the new petition. That position has been reassert-
ed and is now before us.
The request for an additional insulated period is
based solely upon the Board's decision in Electric
Boat Division, supra. We find that decision to be
inapplicable in the circumstances of this case. As the
Board has said twice previously:
The policy enunciated in the Electric Boat case
postpone the effective filing of a new petition until 90 days before the
expiration of the new agreement . Leonard Wholesale Meats, Inc, 136 NLRB
1000.
THE UTILCO COMPANY
applies, excepting unusual circumstances, only
where an untimely petition is processed under
conditions denying the parties to an existing
bargaining relationship an opportunity to execute
anew contract within, they 60-day period.3
First, it can hardly be said that the untimely
petition filed on December 14, 1971, was processed
in a manner that could have prejudiced the parties'
opportunity to execute a new contract. The contract
parties, upon learning that the petition had been
filed, kept to themselves the information that could
have resulted in an immediate dismissal of the
petition, namely, the fact of the existence of the
contract. If, instead of waiting 2 weeks, which was 2
days before the contract expired, the Employer had
informed the Regional Director promptly about the
contract, the Regional Director could have done
either of two things. He could have dismissed the
petition while there remained time within the
insulated period for further negotiations, thereby
eliminating any arguable interference with the
parties' negotiations.4 Or, if it appeared that any
question existed as to the status of the contract for
contract-bar purposes, the Regional Director could
have proceeded to a determination of that issue, and
then, if necessary and appropriate, given the parties
an additional insulated period under the doctrine of
Electric Boat. So if the contract parties were in fact
prejudiced by the processing of the untimely filed
petition, they were themselves largely to blame. We
3 The Kroger Company, 173 NLRB 397; Royal Dean Coal Company, 177
NLRB 700
4 See Kroger Company, supra
5 At the hearing the Petitioner raised the question of the supervisory
status of two employees , John Garner and Joseph Bard The Employer
contends that they are not supervisors Both of these employees divide their
time between truckdnvmg and production and maintenance work. Garner
occasionally passes instructions from management personnel to other
employees and, as a senior employee, performs some training and
instruction functions toward new employees Neither, however, has any of
the attributes of statutory supervisors , and we find that they should be
included in the unit
6 In order to assure that all eligible voters may have the opportunity to
665
are disinclined to allow them to profit from the
situation they helped to create.
But perhaps of greater significance is the fact that
the record indicates that the existence of the
untimely petition had no effect upon the parties'
ability to reach a new contract. The parties had 46
days to bargain before they had notice of the
petition. During that period, and thereafter, they
bargained. Their failure to reach an agreement was
in no way tied in, on this record, to the petition. In
fact, as stated, the evidence is that the petition was
never mentioned.
Since there is no showing that an additional
insulated period may be justified on any other
grounds, we find that the August 22, 1969, agreement
between the Employer and the Intervenor is no bar
to an election herein.
4. 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(c) of the Act: 5
All full-time and part-time production and
maintenance employees, including truck drivers,
employed by the Employer at its location at 4730
Madison Road, Cincinnati, Ohio; excluding all'
office clerical employees, professional employees,
guards, watchmen, and supervisors as defined in
the Act, and all other employees.
[Direction of Elections omitted from publication.]
be informed of the issues in the exercise of their statutory right to vote, all
parties to the election should have access to a list of voters and their
addresses which may be used to communicate with them . Excelsior
Underwear Inc., 156 NLRB 1236, N LR B v. Wyman-Gordon Co, 394 U.S.
759. Accordingly, it is hereby directed that 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 9 within 7 days of
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 f•le 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.