Modern Plastics Corp.

National Labor Relations Board - Board Decisions

Feb 6, 1968

169 N.L.R.B. 716 (N.L.R.B. 1968)

716 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Modern Plastics Corporation and District 39, Inter-
national Association of Machinists and Aerospace
Workers, AFL-CIO, Petitioner . Case 7-RC-6342
February 6, 1968
DECISION AND DIRECTION OF
ELECTION
By CHAIRMAN MCCULLOCH AND MEMBERS
FANNING AND ZAGORIA
Upon a petition duly filed under Section 9(c) of
the National Labor Relations Act, as amended, a
hearing was held before Hearing Officer L. W.
Tucker. The Employer made a "special ap-
pearance" at the hearing and filed a brief.
Pursuant to the provisions of Section 3(b) of the
Act, the National Labor Relations Board has
delegated its powers in connection with this case to
a three-member panel.
The Board has reviewed the Hearing Officer's
rulings made at the hearing and finds they are free
from prejudicial error. They 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 t involved claim to
represent certain employees of the Employer.
3. The Petitioner requests an election in a
production and maintenance unit. The Employer
contends, inter alia, that no question concerning
representation exists.
The Intervenor has represented the Employer's
employees since 1940. In 1958 it joined with the
Employer in a collective-bargaining agreement for
"a period from May 1, 1958, to April 1, 1959, and
[continuing] for additional one year periods unless
cancelled in writing by one party to the other at
least 30 days before May 1st of any year." The con-
tract also provided that the subject of wages could
be opened at any time by either party. Prior to May
1, 1964, no notice of either cancellation or modifi-
cation was given by either party. However, on May
20, 1964, the Intervenor requested the Employer to
renegotiate wages, vacations, and insurance
coverage.
During the course of these negotiations, on June
16, 1964, the Petitioner filed the instant petition,
and a hearing was scheduled thereon. On July 14,
1964, the Regional Director informed the parties of
his determination to dismiss the petition on the
basis of a contract bar, and canceled a hearing
scheduled for July 15. On July 17, 1964, the Peti-
tioner filed an unfair labor practice charge in Case
7-CA-4789, alleging that the Employer had
dominated and assisted the Intervenor in violation
of Section 8(a)(2) and (1) of the Act. On June 26,
1964, the negotiations between the Employer and
the Intervenor culminated in the execution of writ-
ten modifications of their contract; no change was
made in 'the termination or automatic renewal provi-
sion. Thereafter, the Regional Director notified the
parties by a letter dated July 31, 1964, that he
would take no action to carry out his proposed
dismissal of the petition until such time as an in-
vestigation of the unfair labor practice charges had
been completed.2
Thereafter, on November 23, 1965, the Board is-
sued its Decision and Order in Case 7-CA-4789,3
finding that the Employer interfered with and
dominated the Intervenor in violation of Section
8(a)(2) and (1), and ordering that the Intervenor be
disestablished. However, on June 22, 1967, the
Court of Appeals for the Sixth Circuit set aside the
Board's order,4 and, on September 13, 1967, Case
7-CA-4789 was closed. Subsequently, on October
27, 1967, pursuant to an order issued by the Re-
gional Director, a hearing was held on the instant
petition, and thereafter this matter was transferred
to the National Labor Relations Board.
Meanwhile, in the spring of 1965 the Employer
and the Intervenor agreed to written modifications
of their contract, including a 2-year extension until
April 1, 1967, with automatic renewal for 1 year if
notice of cancellation was not received at least 30
days prior to May 1, 1967. On March 20, 1967, the
Intervenor gave the Employer such notice, and on
June 20, 1967, a new 2-year agreement, ending
May 31, 1969, was executed.
We find no merit in the Employer's contention
that the instant petition is inoperative because it
was dismissed by the Regional Director in his tele-
gram of July 14, 1964. Aside from other consider-
ations, the Regional Director, in that telegram,
merely expressed his intention to dismiss the peti-
tion as his reason for canceling the previously
scheduled hearing. As made clear in his letter to
the parties dated July 31, 1964, the Regional
Director's expressed intention was never carried
out because of the filing of the unfair labor practice
charge. Accordingly, we find that the instant peti-
tion has not been dismissed.
The Employer asserts that its 1958 contract, as
automatically renewed for the period April 1, 1964,
until April 1, 1965, is a bar to the petition. We find,
however, that the aforesaid contract is not a bar to
' Employee's Committee of Modern Plastics Corporation intervened
on the basis of its contract interest in the employees involved.
2 We take administrative notice of this letter which, although not a part
of the record herein, is referred to in the Employer's brief and a copy of
which was sent to all parties.
3 155 NLRB 1126.
" Modern Plastics Corporation v. N.L.R . B., 379 F . 2d 201 (C.A. 6).
169 NLRB No. 99
MODERN PLASTICS CORPORATION 717
this proceeding , because the decision herein is issu-
ing after the expiration date of that contract . United
Fruit Company, 134 NLRB 287, fn . 23. We further
find that none of the subsequent contracts between
the Employer and the Intervenor are a bar, as they
are not asserted as a bar to this petition , and, in any
event , they were executed after the instant petition
was filed, and while it was still pending before the
Board.
The Employer also contends that the Regional
Director failed to make an adequate investigation
of the Petitioner 's showing of interest . However,
showing of interest is an administrative matter, and
we are administratively satisfied that Petitioner has
made an adequate current showing of interest.
We also find no merit in the Employer 's conten-
tion that further processing of this petition is con-
temptuous of the court ' s decision in Case
7-CA-4789. Although the court there held that the
Intervenor was not a dominated union , and set
aside the Board ' s Order that it be disestablished,
neither the issue as to the timeliness of the petition
herein, nor the question concerning representation
raised thereby , nor any other issue herein , was be-
fore the court in that case.
We therefore find that a question affecting com-
merce exists concerning the representation of em-
ployees of the Employer within the meaning of Sec-
tions 9(c)(1) and 2(6) and (7) of the Act.5
4. The Petitioner and the Employer agreed to
the appropriateness of a plantwide production and
maintenance unit. They also agreed that "local"
truckdrivers should be included in the unit, but the
Petitioner contended that these employees should
not be mentioned specifically in the unit descrip-
tion. The position of the Intervenor on this issue is
unclear.
The drivers in question, presently three in
number, are ordinarily assigned to pick up and
deliver parts at local stops in town, or between the
Employer's plants. However, when not driving,
these employees are assigned other duties within
the plant. In these circumstances, we find that the
local truckdrivers have interests in common with
the production employees, and we shall specifically
include them in the production and maintenance
unit.
Accordingly, we find that the following em-
ployees constitute a unit appropriate for the pur-
poses of collective bargaining within the meaning of
Section 9(a) of the Act:
All production and maintenance employees at
the Company's plants located at 489 North
Shore Drive and 425 Ninth Street in Benton
Harbor, Michigan, including local truckdrivers,
but excluding office clerical and professional
employees, guards and supervisors as defined
in the Act.
[Direction of Elections omitted from publica-
tion. ]
5 It is noted that the representative of the Intervenor who appeared at
the hearing agreed with the Petitioner that a question concerning
representation exists and an election should be held.
6 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 7 within 7 days after 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 file 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. Excelsior Underwear
Inc., 156 NLRB 1236.