Montgomery Ward & Co., Inc.

National Labor Relations Board - Board Decisions

Jun 28, 1963

143 N.L.R.B. 587 (N.L.R.B. 1963)

MONTGOMERY WARD & CO., INCORPORATED 587
[The Board amended the certification of representatives issued to
Office Employees International Union, AFL-CIO, dated June 19,
1950, by : ( 1) substituting therein "Office Employees International
Union, Local No. 173" for " Office Employees International Union,
AFL-CIO"; ( 2) substituting therein "The Newark Ohio Co." for
"Newark Stove Co."; and ( 3) including in the certified unit all em-
ployees engaged in operating data processing or computer equipment,
which include data processing systems and procedures analysts, pro-
gramers, computer operators , and operators of collateral and related
data processing equipment , and including assistants to the payroll
and data processing department manager.]
Shonebarger exercise supervisory authority and should be excluded from the unit on this
basis . We find no merit in this contention . Although Toomey testified that Frankenberry
and Shonebarger had authority to discuss grievances , the record does not reveal that they
or anyone else was told of such authority , or that they have discussed and/or adjusted
employee grievances. The only other evidence relating to the supervisory authority of
Frankenberry and Shonebarger is that on one occasion , when Supervisor Wilson was away
from the office part of the day, Frankenberry was instructed to `]take over " during his
absence However, there is nothing in the record to indicate that be or Shonebarger in
fact exercised any supervision of employees on that occasion ; moreover , mere sporadic
exercise of supervisory authority would not in any event confer supervisory status.
Montgomery Ward & Co., Incorporated and George M. Clements,
Employee , Petitioner and Retail Clerks Union , Local 1167,
affiliated with the Retail Clerks International Association,
AFL-CIO. Case No. 21-RD-632. June 28, 1963
DECISION ON REVIEW
On December 6, 1962, the Regional Director for the Twenty-first
Region issued a Decision and Direction of Election in the above-
entitled proceeding. Thereafter, in accordance with Section 102.67
(b) of the Board's Rules and Regulations, Series 8, as amended, the
Union filed a timely request for review and oral argument. The
Employer filed opposition.
By telegraphic order dated January 4, 1963, the Board granted the
request for review as raising a policy question warranting Board con-
sideration and denied the request for oral argument. Thereafter,
the Employer filed a brief in support of its statement in opposition
to review.
The Board has considered the entire record in this proceeding, in-
cluding the statements of position of the parties, and makes the fol-
lowing findings :
143 NLRB No. 52.
588 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Employer and the Union are parties to a 5-year contract, ef-
fective February 17, 1959, until February 17, 1964, which contract the
Union urges as a bar to the present petition filed November 7, 1962.
The Regional Director found that under General Cable Corporation,
139 NLRB 1123, the contract was not a bar as it was a contract of
definite duration longer than 3 years and the petition was filed more
than 3 years after the effective date of the contract. On November 6,
1961, the Union was recertified by the Regional Director as the bar-
gaining representative of the present employees, after an election con-
ducted October 27, 1961, pursuant to a petition timely filed under the
contract-bar policy then in effect.' The Union contends that, in the
circumstances present, its existing contract should preclude subse-
quent petitions for a new bar period dating from its recertification.
Our contract-bar rules relating to contracts of unreasonable dura-
tion were designed to insure employees the right to choose representa-
tives at reasonable and predictable intervals and, at the same time, to
give a reasonable degree of stability to such contracts. Thus, after
the expiration of a reasonable period of a long-term contract and be-
fore the filing of a petition for a determination of representatives, we
have permitted the parties to renew the bar quality of such contract
by reaffirming an intent to be bound by its terms 2 By parity of
reasoning, we now hold that where the employees have, during the
term of such a contract, exercised their right of free choice in an elec-
tion and redesignate the contracting union as their representative, the
current contract between the parties constitutes a bar to a subsequent
petition for a new period of reasonable duration dating from the
election.' Accordingly, as the new bar period in the instant case is
from October 27, 1961, to February 17, 1964, a period of less than 3
years, and the petition was filed more than 90 days prior to its expira-
tion, we shall dismiss the petition as untimely filed.
[The Board dismissed the petition.]
MEMBERS RODGERS and LEEDOM took no part in the consideration
of the above Decision on Review.
'Case No 21-RD-570 ( not published in NLRB volumes ). The petition was filed
August 2 '1, 1961, more than 2 years after the effective date of the 5-year contract. The
petition was timely under the then applicable 2-year rule of Pacific Coast Association of
Pulp and Paper Manufacturers , 121 NLRB 990.
2 Southwestern Portland Cement Company, 126 NLRB 931.
3 We have selected the election date as the start of the new bar period instead of the
date of recertification as the former is the critical dalte upon which the employees mani-
fested their decision to retain the incumbent as their representative.