Benjamin Franklin Paint and Varnish Co.

National Labor Relations Board - Board Decisions

Jul 14, 1959

124 N.L.R.B. 54 (N.L.R.B. 1959)

54 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employee interchange, and few, if any, transfers. Seniority is on a
plant and departmental basis. We therefore find that the single-plant
unit requested is appropriate.5
Accordingly, 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(b) of the Act:
All production and maintenance employees at the Employer's
Kansas City, Kansas, meatpacking plant, including truckdrivers; but
excluding receiving office employees, research laboratory employees,
time and employment office employees, plant protection employees
(policemen, watchmen, matrons, bell pullers, and firemen), office cleri-
cal employees, plant clerical employees, cashier in employees' store,
credit union employees, reship clerk, draftsmen, standards department
employees, general office employees, brick masons, superintendent,
assistant superintendent, division superintendents, night superintend-
ent, general foremen, foremen, foreladies, assistant foremen, and all
other supervisors as defined in the Act.'
[Text of Direction of Election omitted from publication.]
MEMBER RODGERS, dissenting :
Upon the record as a whole it has been established to my satisfac-
tion that a definable multiplant unit, based upon bargaining history,
is presently in existence. Cf. General Motors Corporation, Cadillac
Motor Car Division, 120 NLRB 1215. For this reason, I would dis-
miss the petition.
5 Radto Corporation of America, 121 NLRB 633 ; American Can Company, 109 NLRB
1284 ; Hygrade Food Products Corporation , 85 NLRB 841 General Motors Corporation,
Cadillac Motor Car Division, 120 NLRB 1215 , relied on by the Intervenor , is distinguish-
able from the instant case because there the contracting union was substantially the only
union representing the employer's employees . The members of the contracting unions'
bargaining committee were selected by groups of employees which cut across plant unit
lines , and the multiplant unit 'found appropriate covered all employees represented by
the union and was companywide and nationwide in scope.
6 The parties agreed to the composition of the unit.
Benjamin Franklin Paint and Varnish Company Division of
United Wallpaper, Incorporated and Oil , Chemical and Atomic
Workers International Union , AFL-CIO, Petitioner. Case No.
4-RC-3813. July 14, 1959
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 Katherine W. Neel, hearing
officer. The hearing officer's rulings made at the hearing are free from
prejudicial error and are hereby affirmed.
124 NLRB No. 3.
BENJAMIN FRANKLIN PAINT AND VARNISH COMPANY 55
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 1 involved claim to represent certain
employees of the Employer.
3. The Employer and the Intervenor are parties to a contract which
was executed on August 28, 1957, but made effective from July 16,
1957, for a term of 3 years, until July 15, 1960. The Intervenor con-
tends that the contract is a bar to the petition, filed on February 20,
1959.
The question presented is whether the controlling date, for the pur-
pose of determining the contract term and the timeliness of the peti-
tion, is the execution date or the effective date of the contract.
In the Deluxe Metal case,2 the Board provided for the timely filing
of a petition during the 60- to 150-day period before the end of the
second year of a contract of unreasonable duration, such as is involved
here. Thus, if the effective date of this contract is held to begin the
2-year reasonable term, the petition herein was timely filed during
the 60- to 150-day period; if the execution date is held to control, the
filing of the petition preceded the prescribed 60- to 150-day period.
The Board has indicated, in connection with the reexamination of
its contract-bar policies, that two of the objectives of such policies
are to afford parties to collective-bargaining agreements an oppor-
tunity to achieve, for a reasonable period that does not exceed 2 years,
industrial stability free from petitions seeking to change the bargain-
ing relationship, and "to provide employees the opportunity to select
representatives at reasonable and predictable intervals. . . ." 3 [Em-
phasis in original.] In the same case, the Board held that "a valid
contract having a fixed term or duration shall constitute a bar for as
much of its term as does not exceed 2 years. . . ." 4 [Emphasis
supplied.]
The term of a contract technically embraces the effective term pro-
vided in the instrument, and it is this term on the face of the contract
to which the employees and outside unions look to predict the appro-
priate time for the filing of a representation petition. It is, of course,
a fact that many contracts do not show the execution date, or such
date as appears may not be accurate. In these instances the desired
predictability would therefore be lost if reliance were to be placed on
the execution date. Moreover, it is the Board's policy that the con-
tract to constitute a bar must be sufficient on its face, without resort
to parol evidence, such as would often be necessary to determine the
I Local 107 , International Brotherhood of Teamsters , Chauffeurs , Warehousemen and
Helpers of America , Independent , intervened on the basis of a contractual interest.
2 Deluxe Metal Furniture Company, 121 NLRB 995.
9 Pacific Coast Association at Pulp and Paper Manufacturers , 121 NLRB 990.
4 id.
56 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
actual execution date. As with union-security clauses,' and in deter-
mining the adequacy of a contract's the Board will be governed by the
contents of the contract on its face in determining whether the con-
tract constitutes a bar to a representation proceeding.
On balance, we are not persuaded to adopt the Intervenor's position
by reason of its argument that, if the contract's effective date were
held to control, the parties would be deprived of the full 2-year period
of industrial stability. The parties and the employees have the bene-
fit of a full 2 years of effective contract coverage. Where the parties
negotiate a contract for an effective term of 2 or more years, with a
retroactive application, the 2-year reasonable period for contract-bar
purposes is thereby established in accordance with the terms of the
agreement as provided by the parties themselves.
We therefore conclude that it would best effectuate the policies of
the Act to compute the term of a contract for bar purposes from the
effective date of the contract. As the petition was timely filed within
the period of 60 to 150 days before the end of the second year from
the effective date of the contract, we find the contract no bar.
4. The following employees of the Employer constitute a unit ap-
propriate for purposes of collective bargaining within Section 9(b)
of the Act: I All production and maintenance employees at the Em-
ployer's Philadelphia, Pennsylvania, plant, including shipping and
receiving employees and the forklift operator on the night shift, but
excluding office clerical employees, laboratory employees, watchmen,
guards, professional employees, and supervisors as defined in the Act.
[Text of Direction of Election omitted from publication.]
CHAIRMAN LEEDOM took no part in the consideration of the above
Decision and Direction of Election.
5 Keystone Coat, Apron & Towel Supply Company, 121 NLRB 880.
6 Appalachian Shale Products Co., 121 NLRB 1160.
7 The parties agree generally to the unit description contained in the contract , except as
to the classification of lead men . As no individuals are currently employed in this classi-
fication, in accordance with our usual policy, we shall not make any unit determination
with respect to this category.
Marion Mills (Division of Munsingwear, Inc.) and International
Ladies Garment Workers Union , AFL-CIO. Cases Nos. 10-CA-
3008, 10-CA-3220, and 10-RC-3933. July 15, 1959
DECISION AND ORDER
On December 31, 1958, Trial Examiner James A. Shaw issued his
Intermediate Report in these cases, finding that the Respondent had
engaged in certain unfair labor practices and recommending that it
124 NLRB No. 11.