Auburn Rubber Co., Inc.

National Labor Relations Board - Board Decisions

Jan 28, 1963

140 N.L.R.B. 919 (N.L.R.B. 1963)

AUBURN RUBBER COMPANY, INC. 919
Auburn Rubber Company, Inc. and United Rubber , Cork, Lino-
leum & Plastic Workers of America, AFL-CIO, Petitioner.
Case No. 28-RC-104. January f28, 1963
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 Lewis S. Harris , hearing offi-
cer. 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 National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three -member panel [Chairman McCulloch and Members
Rodgers and Leedom].
Upon the entire record the Board finds :
1. The Employer is a, New Mexico corporation engaged in the manu-
facture of toys . During the year ending October 12, 1962 , it pur-
chased supplies from outside the State of New Mexico valued in ex-
cess of $50,000 and during the same period shipped finished products
valued in excess of $50,000 outside the State . We find, contrary to the
contentions of the Employer and the intervenor ,' that the Employer
is engaged in commerce within the meaning of the Act and that it will
effectuate the policies of the Act to assert jurisdiction .2 The Inter-
venor's motion to dismiss on jurisdictional grounds is hereby denied.
2. The labor organizations involved claim to represent employees
of the Employer . Although neither of the unions here involved would
stipulate that the other was a labor organization , evidence was adduced
at the hearing which indicates that both are labor organizations within
the meaning of Section 2 (5) o f the Act.'
3. The Employer and the Intervenor moved to dismiss the petition
on the ground that the current collective -bargaining agreement be-
tween them entered into May 14, 1962, for a 2-year term , is a bar to
this proceeding and that even if this contract is not a bar , the petition
should he dismissed because it was untimely filed in relation to the
preccdina contract.
Followin(, Board certification , the Intervenor entered into a
collective -bargaining agreement with the Employer on October 24,
I General Teamsters Industrial Employees Local Union No 292 intervened on the basis
of a current collective-bargaining contract
2 See N L R B v. Reliance Fuel Oral Corporation, 371 U S 224 ; Siemons Mailing Serv-
ice, 122 NLRB 81.
'Petitioner claimed, in addition, that the Intervenor was not a labor organization be-
cause Central States Southwest and Southeast Area Pension Fund, a joint labor-
management administered fund, holds bonds of the Employer The record indicates that
the Intervenor is not affiliated with the pension fund Accordingly, we need not decide
what the status of the Intervenor would be if it held bonds of the Employer
140 NLRB No. 94.
920 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1960, for a term to expire December 31, 1962. On March 23, 1962, this
contract was terminated by agreement of the contracting parties. On
the same day notices were posted by the Employer informing its em-
ployees that the labor contract had been terminated and stating that
unless the employees indicated a desire to change bargaining repre-
sE ntatives, the Employer would attempt to negotiate a new contract
with the Intervenor. On May 14, 1962, a new 2-year labor contract
was signed which was subsequently ratified by the members of the
Intervenor, 141 to 30. However, there are approximately 333 members
in the unit. On October 12, 1962, the Petitioner filed its petition.
On these facts, we find that the contract executed on May 14, 1962,
constitutes a premature extension of the contract terminating Decem-
ber 31, 1962, and that it is therefore not a bar to the present petition.4
The doctrine of premature extension provides that a contract with
a terminal date later than that of an existing earlier agreement will
not bar a petition filed at a time which would not have been barred
by the earlier agreement.
In Stubnitz Greene Corporation (Reynolds Spring Company Divi-
sion), 116 NLRB 965, 967, the Board discussed a situation similar to
that in the present case where the parties had terminated one contract
and later entered into a new agreement. It was stated there :
For purposes of applying the Board's premature extension doc-
trine, it is immaterial that the premature extension is embodied
in an entirely new and separate agreement, as here, rather than
in an amendment, supplement or extension of an existing con-
tract.5 The contracting parties contend that the new contract
nevertheless should operate as a bar because the Petitioner had
ample opportunity to file a petition during the interval between
the Intervenor's notice of termination of the old contract, given
on August 22, 1955, and the execution of the new contract on
September 20, 1955. A similar contention was rejected by the
Board in the recent Congoleum-Nairn case.' There, as here, it
was contended that the premature extension doctrine should not
apply where there was an interval of several weeks prior to the
execution of a new contract during which there was no bar to the
filing of a petition. However, there again, as here, the interval
was not a predictable one, but was the result of actions by the con-
tracting parties which could not have been reasonably anticipated
by the petitioner.'
G Congoleum-Nairn, Inc., 115 NLRB 1202.
0 Congoleum,-Nanrn, Inc, supra
The Employer and the Intervenor attempt to distinguish the present case from
Congoleum -Nairn on the ground that there, unlike here , the new contract was ex-
ecuted prior to the actual termination of the previous contract we reject this
distinction as it disregards the broad premature extension and contract -bar policy
con°iderations upon which the decision in that case was based.
' Stubnitz Greene Corporation (Reynolds Spring Company Division ), 116 NLRB 965.
AUBURN RUBBER COMPANY, INC. 921
Contrary to our dissenting colleague , we do not believe that the cir-
cumstance of an employer 's giving notice to employees of an intent to
negotiate a new contract , including the bona fides of the parties to that
contract, and the fact that there was ratification thereof by the mem-
bers of the incumbent union, should be accorded overriding considera-
tion in the application of the premature extension rule. As far back
as 1942, the Board explained the purpose of the rule thusly :
Were we to hold that the parties to a collective bargaining
agreement covering a period of several years could forestall a
petition for investigation and certification of representatives by
entering into a supplemental agreement modifying the contract
in advance of the date fixed therein for reopening negotiations,
the right of the employees to seek a change of representatives after
the lapse of a reasonable time might be defeated . So to hold
would require of employees , desiring to change representatives,
acceleration of organizational activities so that they would be
ready to assert a claim of majority representation at any time
the contracting parties might elect to discuss modification of the
existing agreement, thus leading to disaffection and unrest under
the existing agreement instead of stabilized labor relations.5
All-important in this statement is the vice that the Board seeks to
avoid, namely , requiring employees who desire to change representa-
tives to accelerate "organizational activities so that they would be
ready to assert a claim of majority representation at any time the con-
tracting parties might elect to discuss modification of the existing
agreement . . . ." By the same token, the rule also furnishes outside
unions which might be planning to organize the employees the degree
of predictability necessary to allow them to schedule their campaign.
Certainly, notice to the employees is not tantamount to notice to such
outside union or unions . The position of our colleague, we believe, is
not in keeping with this salutary purpose of the premature extension
rule. Further , we consider the cases cited by our colleague inapposite.
In Sefton Fibre Can Company , 109 NLRB 360, the rule was not ap-
plied, but there the new contract between the employer and union
"was intended solely to implement their long considered determina-
tion to join in multiemployer bargaining and was accomplished when
the time was ripe for joining in the group bargaining ." 109 NLRB at
367. In Foremost Appliance Corp., 128 NLRB 1033, the new contract
was held not to have been prematurely extended because the earlier
contract would not, under Board rules , have barred an election. We
do not consider either case comparable to the instant one.
The Employer and the Intervenor also contend that, even assuming
there was a premature extension , the petition was untimely as it was
Wichita Un4on Stockyards Company, 40 NLRB 369, 372.
922 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
filed during the insulated period preceding the expiration of the first
2 years of the original contract. In General Cable Corporation,6 the
Board extended the period that a contract could bar an election from
2 to 3 years, and the Board deemed it "prudent administrative prac-
tice" to apply this new rule to proceedings pending before it for
decision. Contrary to the Employer and Intervenor, we see no rea-
son for departing in this case from this announced practice. Ac-
cordingly, although the petition was filed only 12 days before the end
of the first 2 years of the October 1960 contract and would have been
untimely under the Board's former rule, as there were 82 days before
the contract's actual expiration date, the petition was filed within the
90- to 60-day open period fixed in Leonard TV1lole.^ale illeat^. Inc.' We
therefore find that the petition was timely filed and deny the motions
of the Employer and Intervenor to dismiss.
A question affecting commerce exists concerning the representation
of certain employees of the Employer, within Sections 9(c) (1) and
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: 8
All production and maintenance, shipping and receiving employees,
truckdrivers, plant clerical employees, and leadmen at the Employer's
Deming, New Mexico, plant, excluding office clerical employees,
technical employees, guards, watchmen, and supervisors as defined in
the Act.
[Text of Direction of Election omitted from publication.]
CI AIRMAN MCCULLOCH, dissenting :
I disagree with my colleagues who have directed an election in this
case. I do so for the following reasons:
In 1960, the Intervenor won a Board-conducted election and was
certified as the collective-bargaining representative of the Employer's
production and maintenance employees. Thereafter, on October 24,
1960, the Employer and the Intervenor entered into a collective-
bargaining contract for a term to expire on December 31, 1962. On
March 15, 1962, the Intervenor wrote the Employer that studies it
had made since October 1961, including studies by an impartial con-
sultant, of the incentive pay plan provided in the contract, indicated
that the plan was unworkable and therefore it requested that the
contract be canceled in its entirety. The Employer on March 23,
1962, replied that it agreed with the Intervenor's conclusions and
further stated :
9139 NLRB 1123.
136 NLRB 1000
8 The unit description is in accordance with a stipulation of the parties
AUBURN RUBBER COMPANY, INC. 923
We do not believe that the present system is practical or feasible,
and it is not satisfactory to the company as well as being un-
satisfactory from your standpoint; consequently, we hereby agree
to the cancellation of our present agreement and to negotiate
a new contract.'
Immediately upon cancellation of the old contract, the Employer
posted a notice to its employees stating :
The labor contract of October 24, 1960... has proved to be
unsatisfactory to both the Union and the Company.
Consequently the Union and the Company have agreed to termi-
nate the contract ... While there is no longer any contract be-
tween the [Intervenor] and the Company . . . the [Intervenor]
will continue to be recognized by the Company as bargaining agent
for Auburn employees, unless the Company is notified that its
employees wish to change bargaining agents.
If the Company is not notified that the employees wish to change
bargaining agents, its representatives will meet with representa-
tives of [Intervenor] and attempt to negotiate a new labor con-
tract that will be satisfactory to both the Union and the Company.
For approximately 6 weeks after the posting of the above notice,
the Employer and the Intervenor engaged in negotiations for a new
bargaining contract. At no time during this period of negotiations
did the employees directly or through the medium of a rival union
indicate that they no longer desired that the Intervenor represent
them for collective-bargaining purposes. Finally the two parties
reached agreement on the terms for a new contract. These terms
were submitted for approval to the employees in the bargaining unit.
By an overwhelming majority of those voting, after notice, the em-
ployees ratified the terms. Thereupon on May 14, 1962, the Employer
B The Employer 's president testified as to the reasons for negotiating an entirely new
contract rather than simply amending the old one:
Number one, even to attempt to change , modify , or revise the old contract to what
we wound up in the new , we would have had such a complicated document that no
one would have understood it. That's what part of the difficulty was As I said, it
was so lengthy and involved-you got numerous interpretations of different para-
graphs in it and now if you tried to revise it by amendment or something it would
really have become a long unworkable document . In addition to this there were
several other factors . One of those was, there wasn't any purpose if we go-if we
were going to continue to be able to operate the Company to have an agreement
which [would ] only be effective for the balance of the contract for a few months be-
cause there has to be a reworking and plans made for a longer period of time than
that for repricing and reworking our whole product line Unless I had a long
enough contract to give me at least a couple of years period in which I would be
pretty well able to estimate what my actual costs and labor costs were , it would be
useless to even consider it That's one of the reasons , even though I knew that the
possibility of a strike it was a calculated strike but it would be better to take that
risk I thought and be able to get a contract for a long enough period of time to
enable me to have an opportunity to work out a financial program for the Company
and a product line based on estimated cost, which would have a reasonable expira-
tion and be reasonably accurate
924 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and the Intervenor signed the new bargaining agreement which is ef-
fective for 2 years until May 14, 1964. It was not until approximately
7 months after the cancellation of the 1960 contract and 5 months after
the signing of the new agreement that the Petitioner indicated its
interest in representing the employees involved.
I have recited the facts in detail because they show the complete
bona fides of the Employer and the Intervenor in terminating the old
contract and negotiating a new one, and the scrupulous care exercised
by the Employer to respect the right of the employees to change their
bargaining representative, if they so desired, before a new contract
was negotiated and signed. There is not the slightest hint in this
record that the contracting parties intended to forestall the filing of a
representation petition by a rival union. The employees also had
ample time, almost 2 months from the time of the cancellation of the
old contract to the signing of the new, to indicate dissatisfaction with
the representative status of the Intervenor. They did not do so. I
agree generally with the premature extension rule. I think it is a
good rule. But like all general rules its rigid application sometimes
does not work out to justice or good labor relations. On at least two
previous occasions the Board made exceptions to the premature exten-
sion rule.10 I would, because of the special circumstances of this case,
make another exception. I am reinforced in this conclusion by the
fact that under the premature extension rule as it existed at the time
the present petition was filed, the petition would have been dismissed
as untimely and the 1962 contract held a bar."
For all the foregoing reasons I would hold that the 1962 contract
is a bar to the present petition and, instead of directing an election
based thereon, would dismiss it.
10 Foremost Appliance Corp ., 128 NLRB 1033 ; Sefton Fibre Can Company, 109
NLRB 360.
"Pacific Coast Assootation of Pulp and Paper Manufacturers, 121 NLRB 990.
Wix Corporation and International Union , United Automobile,
Aircraft and Agricultural Implement Workers of America,
UAW, AFL-CIO. Cases Nos. 11-CA-1841 and 11-CA-1889.
January 29, 1963
DECISION AND ORDER
On September 26, 1962, Trial Examiner Benjamin B. Lipton issued
his Intermediate Report 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 Interme-
diate Report. The Trial Examiner also found that the Respondent
140 NLRB No. 87.