U. S. Rubber Co.

National Labor Relations Board - Board Decisions

Jan 27, 1956

115 N.L.R.B. 240 (N.L.R.B. 1956)

240 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. The labor organization involved claims to represent certain em-
ployees of the Employer.
3. A question affecting commerce exists concerning the representa-
tion of employees of the Employer within the meaning of Section 9
(c) (1) and Section 2 (6) and (7) of the Act.
4. As stipulated by the parties, the following employees of the Em-
ployer at its West Cheshire, Connecticut, plant, constitute a unit ap-
propriate for the purposes of collective bargaining within the meaning
of Section 9 (b) of the Act: All production, maintenance, and ship-
ping department employees, excluding office clerical and professional
employees and all supervisors as defined in the Act.
5. As noted above, no exceptions were filed to the Acting Regional
Director's recommendation that the challenge to Hadley's ballot be
overruled. In the absence of such exceptions, the Board adopts the
Regional Director's recommendation and overrules the challenge to
Hadley's ballot. As a conclusive election may result from the counting
of Hadley's ballot, we shall direct that his ballot be opened and counted,
and shall defer our ruling on the remaining challenged ballot until the
results of the balloting, after the counting of Hadley's ballot, shall
have been disclosed.
[The Board directed that the Regional Director for the First Re-
gion shall, within ten (10) days from the date of this Direction, open
and count the ballot of William Hadley and serve upon the parties a
supplemental tally of ballots.]
U. S. Rubber Company and Chauffeurs, Teamsters and Helpers
Local Union No. 364, Petitioner. Case No. 13-RC-4373. January
17,1956
DECISION AND DIRECTION OF ELECTION
Upon a petition duly filed under Section 9 (c) of the National La-
bor Relations Act, a hearing was held before Virginia M. McElroy,
hearing officer. The hearing officer's rulings made at the hearing are
free from prejudicial error and are hereby affirmed.
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.'
1 United Rubber , Cork, Linoleum and Plastic Workers of America, AFL-CIO, Local
Union No. 65 was permitted to intervene on the basis of its certification and contractual
Interest.
115 NLRB No. 37.
U. S. RUBBER COMPANY 241
3. The Intervenor contends that no question concerning represen-
tation exists on the following grounds : (1) That a collective-bargain-
ing contract bars this proceeding; (2) that the petition herein was
untimely because it was filed within the year following the Intervenor's
certification as bargaining representative for the employees herein
involved; and (3) that the requested unit is inappropriate.
The record shows that on October 15, 1954, the Intervenor was cer-
tified as the exclusive bargaining representative of the Employer's
warehouse employees at its Haines Building plant, Elkhart, Indiana.
Thereafter, on December 20, 1954, the Intervenor and the Employer
executed a bargaining agreement which provided that the terms of the
then existing master agreement between the International Union and
its locals, including the Intervenor and the Employer, be extended,
with certain limitations, to cover the unit of Haines Building em-
ployees. It also provided that the terms of the then existing supple-
mental agreement between the Intervenor and the Employer, which
ran concurrently with the master agreement, and applied to the em-
ployees of the Employer's Ball-Band plant at nearby Mishawaka,
Indiana, be similarly extended. The master agreement, which was
dated April 3, 1953, contained a duration clause which provided that
such agreement continue in effect until March 31, 1955, and thereafter
renew itself for yearly periods unless written notice was given not less
than 60 days, but not more than 75 days, prior to the expiration date,
that it was desired to terminate or amend the agreement a The sup-
plemental agreement, dated May 13, 1953, like the master agreement,
provided that it would continue in effect until March 31, 1955, and
thereafter renew itself for yearly periods unless notice was given not
less than 60 days, but not more than 75 days, from the expiration date,
that it was desired to terminate or amend the agreement.'
On January 26, 1955, the International Union and all its locals, in-
cluding the Intervenor, gave notice of a desire to terminate the master
agreement on March 31, 1955. Thereafter, representatives of the In-
ternational and its various locals met with the Employer, and on April
8, 1955, executed a new master agreement speciflying that it was to
become effective at the local level on the date on which a particular
local may complete the local supplemental agreement. On June 1,
1955, the Intervenor and the Employer executed a supplement to the
0 As part of the same article dealing with duration and termination , the contract con-
tained a further provision that in the event negotiations , commenced pursuant to the
termination clause , were not completed prior to the expiration date of the agreement,
then the agreement could be continued in force and effect by mutual agreement of the
parties.
3 Unlike the master agreement , the supplemental agreement provided that in the event
negotiations were not completed prior to the execution date of the agreement, the agree-
ment was to be continued in force and effect subject to cancellation upon 30 days ' written
notice by either party.
390609-56-vol. 115-17
242 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
master contract of April 8, 1955. The petition herein was filed on
May 9, 1955, after previous claim to representation had been made
by the Petitioner on April 29,1955.
The Intervenor's contention of contract bar rests apparently on
the theory that its local supplemental agreement was automatically
renewed on March 31, 1955, and by virtue of such renewal, the master
agreement, which was to become effective at the local level upon com-
pletion of a supplemental agreement, thereby became effective on
April 8, 1955, the date of its execution. We find no merit in this con-
tention because the evidence in the case does not support the Inter-
venor's factual assertion that the supplemental agreement of May 13,
1953, was automatically renewed in the absence of a notice of termina-
tion or modification. On the contrary, the inference is clear that the
Intervenor's supplemental agreement to the master contract of April-
3, 1953, was terminated by adequate notice. Thus, the parties them-
selves, in their memorandum of April 7, 1955, expressly acknowledged
that adequate termination notices had been given for the supplemental
agreement. Furthermore, when the parties by the same instrument
reinstated and continued in effect the 1953 master and supplemental
agreements for an indefinite period of time in order to afford them
additional time to conclude their negotiations, they made it quite clear
that their supplemental agreement had not been automatically rein-
stated.4
The Intervenor does not challenge the authenticity of the memoran-,
dum agreement; nor does it endeavor to reconcile the plain language of
the document with its own contrary assertion. In such circumstances,
we are inclined to give an overriding effect to the documentary evi-
dence in the case. We therefore find that the supplemental agree-
ment to the 1953 master contract was not automatically renewed so as
to constitute a bar to the present proceeding.'
It follows from the view we have taken of the evidence in the case
that the new master agreement negotiated April 8, 1955, did not be-
come effective on the date of its execution. Indeed, the current agree-
ments between the parties, which are in force and effect, clearly show
the local supplemental agreement to have been completed on June
1, 1955, and the master contract of April 8, 1955, to have become ef-
fective on June 1, 1955. Thus, the new supplemental agreement spe-
cifically states that it is supplemental and subject to the terms of the
companywide agreement entered into on April 8, the supplemen-
' Although the Intervenor does not contend that the reinstated agreement , being of
indefinite duration , constituted a bar to the petition , the Board has frequently held that
a contract indefinitely extended after a fixed term is not a bar to a representation pro-
ceeding. See Westinghouse Electric Corporation , 111 NLRB 497.
e The testimony of the Employer 's representative implied the existence of an under-
standing between the parties that, with the giving of the written notice terminating the
master contract , the supplemental agreements which ran concurrently with the master
contract were likewise opened for general revision.
U. S. RUBBER COMPANY 243
tal agreement further states that it was entered into "in order to sup-
plement said companywide agreement and to make said company-
wide agreement effective. . . ." We conclude therefore that neither
the master contract of April 8, 1955, which required a supplemental
agreement to become effective, nor the supplemental agreement itself,
completed on June 1, 1955, after the filing of the petition, constitutes
a bar to a present determination of representatives.'
As to its second contention, it is the Intervenor's position that the
April 8, 1955, collective agreement, being in actuality the first contract
negotiated by the Intervenor during the year following its certifica-
tion, is, under Board policy, a bar to a representation petition filed
during the certification year. Such contention, we believe, would
have merit were it an established fact that the April 1955 contract
represented the certified bargaining agent's initial effort at collective
agreement within the year following its certification? We disagree,
however, with the Intervenor's conclusion that such agreement repre-
sented the first contract which it negotiated after its certification. The
record is clear that, following its certification, the Intervenor and the
Employer executed- the agreement of December 20, 1954, which not
only extended to the employees in the Haines Building unit the terms
of the comprehensive master contract of April 3, 1953, and the Inter-
venor's supplement thereto, but in addition provided for a general
wage increase with retroactive application. Therefore, notwith-
standing the fact that the 1953 master and supplemental agreements
were to expire in little more than 3 months time, absent automatic
renewal, we are of the opinion that the December 20, 1954, contract
achieved a substantial measure of stability in labor relations sufficient
to merge the certification year with the contract and thus make the
contract controlling with respect to the timeliness of a rival petition.'
In these circumstances, as the petition herein was not untimely filed
with respect to the certification year, we find that it is not subject to a
certification bar.
For the foregoing reasons, and for further reason relating to the
unit as hereinafter discussed, we find that a question affecting com-
merce exists concerning the representation of the employees of the
Employer within the meaning of Section 9 (c) (1) and Section 2 (6)
and (7) of the Act. Accordingly, we deny the Intervenor's motion
to dismiss the petition herein.
ewe find without merit the Intervenor's contention, predicated on the Board' s rule In
General Electrao X-Ray Corporation, 67 NLRB 997, that the petition herein was untimely
filed because more than 10 days elapsed between the date on which the Petitioner first
made its claim to representation and the filing of its petition This rule has no relevant
application here in view of the fact that the petition was filed before the effective date of
the agreements urged as a bar
7 See Westinghouse Electrae Corporation (Sunnyvale Plant), 114 NLRB 1515
e Westinghouse Electric Corporation, 110 NLRB 872 Cf. Ludlow Typo graph Company,.
108 NLRB 1463.
244 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
4. The Petitioner seeks to represent a unit of warehouse employees
at the Employer's Haines Building at Elkhart, Indiana, corre-
sponding to the unit which the Board found appropriate in an earlier
proceeding.' The Intervenor contends that a unit limited to the ware-
house employees is inappropriate on the ground that the Board in the
earlier proceeding directed a merger of the warehouse employees at
the Haines Building with the production and maintenance employees
at the Mishawaka plant in the event that a majority of the warehouse
employees selected the Intervenor (the petitioner in that case ) as their
bargaining representative;10 and upon the further ground that the
Intervenor has bargained for the warehouse employees as part of an
appropriate unit. The Employer takes no position.
Although certified in October 1954, the initial agreement , between
the Employer and the Intervenor for the unit of warehouse employees
found appropriate by the Board, as indicated, was executed on Decem-
ber 20, 1954, a matter of approximately 4 months before the filing of
the petition herein on May 9, 1955. Unlike the supplemental agree-
ment, which read that it was made between United States Rubber
Company (Ball-Band plant), located at Mishawaka, Indiana, and the
Intervenor, the December 20 agreement specified that it was made
between the United States Rubber Company, Haines Building, Elk-
hart, Indiana, and the Intervenor. The latter agreement established
the Haines Building as a "division" of the Mishawaka plant and pro-
vided that it applied to all employees "who are currently or may in the
future come within the unit defined by the [Board]" in its decision.
Although the Mishawaka plant also employed warehouse employees
within apparently comparable classifications and with substantially
similar duties, the December 20 agreement nevertheless established
separate seniority for the Haines Building warehouse employees.
More important, the June 1, 1955, supplemental agreement for the
production and maintenance employees at the Mishawaka plant, com-
pleted long after the certification of the Intervenor, was not in ex-
press terms made to apply to the Haines Building warehouse em-
ployees. On the contrary, the Employer and the Intervenor once more
entered into a separate "memorandum of agreement and understand-
ing," extending the terms of the master and supplemental agreements
to the warehouse employees. It likewise preserved the separate
seniority of the warehouse employees, and indicated that its terms
applied to the unit as defined in the Board's decision.
In view of the character and the brevity of the collective bargaining
between the Intervenor and the Employer for the warehouse em-
ployees at the Haines Building, we do not find a clear intent on their
9 United States Rubber Company, 109 NLRB 1293.
10 The Intervenor is clearly in error in so contending . See the Board's decision in
United States Rubber Company, 109 NLRB 1293.
CROSLEY & BENDIX HOME APPLIANCES DIVISION 245
part to effect a consolidation of the separate units so as to extinguish
the rights of the warehouse employees to select and change their bar-
gaining representative at appropriate intervals. We find rather an
intent by the contracting parties to preserve the identity and scope
of the unit established by the Board.ll Accordingly, we find that all
warehouse employees at the Employer's Haines Building plant at Elk-
hart, Indiana, excluding office clerical employees, professional - em-
ployees, guards, and 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.
[Text of Direction of Election omitted from publication.]
u Cf. American Can Company, 109 NLRB 1284.
Crosley & Bendix Home Appliances Division , AVCO Manufactur-
ing Corporation 1 and International Union , International Asso-
ciation of Tool Craftsmen N. I. U. C. (National Independent
Union Council ), Petitioner. Case No. 35-RC-1227. January 27,
1956
DECISION AND DIRECTION OF ELECTION
Upon a petition duly filed under Section 9 (c) of the National
Labor Relations Act, a hearing was held before Bruce Gillis, Jr., hear-
ing officer. The hearing officer's rulings made at the hearing are free
from prejudicial error and are hereby affirmed.2
Upon the entire record in this case, the Board finds :
1. The Employer is engaged in commerce within the meaning of
the National Labor Relations Act.
2. The labor organizations named below claim to represent certain
employees of the Employer.
3. The Intervenor contends that its contract, which covers, among
others, the employees petitioned for, is a bar to this proceeding. The
Intervenor signed a contract with the Employer on March 30, 1954,
retroactively effective from March 22,1954, to and including December
31, 1955, and containing a 60-day'automatic renewal clause. On Octo-
ber 14, 1955, the Intervenor and the Employer signed a new contract
effective from October 3, 1955, to and including September 30, 1956,
which new contract expressly superseded the March 1954 contract.
This contract also contained a 60-day automatic renewal clause. The
Petitioner requested recognition of the Employer as bargaining repre-
I The name of the Employer appears as corrected at the hearing.
2 Local 1127, International Brotherhood of Electrical Workers, AFL-CIO, intervened
upon the basis of its contractual interest.
115 NLRB No. 39.