Austin Powder Co.

National Labor Relations Board - Board Decisions

Feb 1, 1973

201 N.L.R.B. 566 (N.L.R.B. 1973)

566 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Austin Powder Company and Oil, Chemical and
Atomic Workers International Union, AFL-CIO
Petitioner. Case 9-RC-9574
February 1, 1973
DECISION ON REVIEW AND
DIRECTION OF ELECTION
BY MEMBERS FANNING, KENNEDY, AND
PENELLO
On September 14, 1972, the Regional Director for
Region 9 issued a Decision and Order in the above-
entitled proceeding, in which he dismissed the
petition on the ground that a current contract
between the Employer and the Auxier Independent
barred an election. Thereafter, in accordance with
Section 102.67 of the National Labor Relations
Board Rules and Regulations, Series 8, as amended,
the Petitioner filed a timely request for review,
contending that the Regional Director departed from
officially reported Board precedent in dismissing the
petition.
By telegraphic order dated November 13, 1972, the
National Labor Relations Board granted the request
for review. Thereafter, the Employer filed a brief on
review.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the entire record in this
case, including the Employer's brief, with respect to
the issues under review, and makes the following
findings:
In November or December 1971 the Employer
began production at its Auxier, Kentucky, facility,
where it manufactures, stores, sells, and ships
explosives. During January 1972 one of the pro-
duction employees, Alfred Wilson. approached the
plant's temporary manager, Herman Cross, and
asked to see copies of contracts the Employer had at
its other plants, which are located in several States.
Cross then contacted the Employer's general manag-
er, Jack Bickett, in Cleveland, Ohio, and Bickett sent
him two drafts of a contract to offer to the
employees.
Each of the drafts provided that it was effective
from February 1, 1972, to February 1, 1975, and that
it was "entered into . . . between Austin Powder
Company . . . and the Auxier Independent. . .", an
organization which did not exist at the time. Each
draft also recognized the "Auxier Independent" as
the exclusive representative of all production and
I The Independent had, and continues to have, no formal structure
whatsoever, and thus has no procedures for joining it
maintenance employees and truckdrivers at the
Auxier facility, and had provisions as to employee
bonuses, management rights, grievance procedures,
holidays, holiday pay, seniority, wages, plant safety,
annual reopening of wage rate negotiations, and
strikes and lockouts. Each draft provided that it
could be amended only by agreement of the parties
in writing.
When Cross received the contract drafts, he gave
one to Wilson and left the other in the plant office
for the employees to review. According to Cross, all
employees "were told to read it fully and on their
own judgment sign it." Three over-the-road drivers
and a maintenance man immediately signed the draft
on its front cover, although it provided that drivers
were to receive $.40 an hour less than their then
current wage rate. The remaining employees, all of
whom were plant employees, were dissatisfied with
the drafts and they crossed off the four signatures
and called a meeting of the employees to discuss the
situation. The record indicates that plant employees
alone were involved in this meeting. According to
Wilson, a majority of these employees voted to elect
him and Randy Hale, another production employee,
as representatives to negotiate with the Employer
over certain changes plant employees wanted in the
proposed contracts.
Shortly afterwards, in response to Wilson's request,
Bickett came to Auxier to join Cross in discussing
with Wilson and Hale the aspects of the proposed
contracts with which the employees were dissatisfied.
During the ensuing discussions the Employer agreed
to change the proposed contracts in several respects.
One week's vacation after 1 year of employment and
2 weeks' vacation after 2 years were provided for, the
probationary period for new employees was short-
ened from 9 to 3 months, the pay rate for truckdriv-
ers was changed from $2.35 to $2.75 an hour, their
then current rate, and the pay rate for production
and maintenance employees was changed from $2 to
$2.35 an hour, to be increased to $2.50 an hour as of
June 30, 1972. All these changes were handwritten
onto the drafts of the proposed contract. Oral
agreements were also made, none reduced to writing
as the contract required, that all employees hired
after the signing of the agreement would sign a
contract to join the Independent after the 90-day
probationary period,' and that employees would
receive overtime pay for all work over 8 hours a day.
After obtaining the Employer's agreement to the
above contract modifications, Wilson and Hale took
it back to the plant employees, discussed the written
and oral modifications with them, and presented the
201 NLRB No. 90
AUSTIN POWDER COMPANY 567
contract to them for their signatures . All of them
signed it on its front cover ,2 and Wilson and Hale
then signed its last page , under the heading "INDE-
PENDENT ASSOCIATION OF AUXIER, KEN-
TUCKY." 3
The Employer began applying the new contract in
early March , but simultaneously raised the wages of
the truckdrivers to $3 an hour . On June 30, the
contract date for wage increases for plant employees,
the Employer again raised the truckdrivers ' wages,
this time to $3.10 an hour .4 The oral agreement as to
union security was evidently abandoned almost
immediately , a fact indicated by Wilson's testimony
that the five employees hired after the contract was
initially signed were considered "automatically"
members of the union after their 90 -day probationary
period , even though they had signed no "contract"
to join it.
As we have previously held, a contract will not bar
an election where it is "in reality a set of identical
individual contracts between the Employer and each
employee who signs the agreement"5 and therefore is
not a collective -bargaining agreement. Judged by this
standard , the contract with which we are concerned
here is not a bar . Even though it is ostensibly
between the Employer and the Auxier Independent
and certain changes in it were negotiated by
employee spokesmen , there is no evidence that the
employees intended to be bound as a group by the
product of the negotiations . Nor is there evidence
that the Employer expected them to be so bound.
The Employer originally presented the contract to
the employees to sign individually "on their own
judgment ." After changes had been made in the
contract , it was again taken back to the employees
and they were asked to sign it individually, not to
assent as a group . The fact that Wilson and Hale
signed the contract under the heading of the
Independent is unimportant , since their signatures
apparently had no power to bind the other employ-
ees. As Wilson put it , when asked whether he was the
2 Apparently, employees hired after this time have also been requested to
sign the contract and have done so
3 This designation of the independent does not appear elsewhere in the
contract.
4 The Regional Director found that the parties made oral agreements as
to wage increases ; the record does not support this finding Although
Bickett testified that "at the time we were negotiating with Mr Wilson, we
moved the truck drivers to $3.00 per hour." he also admitted that he had
initialed the contract provision raising the dnvers ' wages to $2.75 an hour
from the $2 35-an-hour rate originally provided for. It is most unlikely that
the parties would have agreed to a $3-an -hour wage for the dnvers yet have
written a different wage rate into the contract. That the parties did not do so
"top official" of the Independent, "I'm not official
anything; we acted on our own. Each man acts on
his own-." This conclusion is emphasized by
Wilson's further testimony that there was no term for
his election to the so-called negotiating committee;
the inference is that any power he had vanished
when he had conveyed to the Employer the aspects
of the contract with which other employees were
dissatisfied. Viewed in light of the above facts, the
contract cannot be deemed a collective-bargaining
agreement.
Moreover, even assuming that the contract is a
collective-bargaining agreement, it would still fail to
bar an election because several important terms
agreed upon by Wilson and Hale and the Employer,
those dealing with union security, overtime, and
drivers' wages, are unwritten or have been aban-
doned. Under such circumstances, the contract in
several critical areas cannot be resorted to by either
the employees or the Employer for guidance in
governing their day-to-day relations, and therefore
does not "impart sufficient stability to the bargaining
relationship to justify our withholding a present
determination of representation.."6
In view of the foregoing, we find that a question
affecting commerce exists concerning the representa-
tion of certain employees of the Employer within the
meaning of Section 2(6) and (7) of the Act.
Accordingly, we shall direct an election7 in the
following unit which we find, in accord with the
stipulation of the parties, to be appropriate for the
purposes of collective bargaining within the meaning
of Section 9(b) of the Act:
All production and maintenance employees
and truckdrivers employed by Austin Powder
Company at its Auxier, Kentucky, facility, ex-
cluding dispatchers, professional and clerical
employees, guards and supervisors as defined in
the Act.
[Direction of Election and Excelsior footnote
omitted from publication.]
was firmly established by Wilson, who repeatedly asserted that the wage
rate finally agreed to was "2 .75 an hour for the tractor dnvers."
S Cal-Western Van & Storage Co., Inc., 170 NLRB 67.
4 See Raymond's, Inc., 161 NLRB 838; and Emanuel Birnbaum and John
W Jones d/b/a Silver Lake Nursing Home, 178 NLRB 478.
7 Petitioner contends that the Regional Director erred in finding that
Auxier Independent moved to intervene at the hearing and thus also erred
in granting that motion . The record indicates that it is at best unclear
whether Auxier independent did move to intervene . We shall therefore
permit it to remove its name from the ballot on written request to the
Regional Director within 10 days of issuance of this Decision and Direction
of Election