Natvar Corp.

National Labor Relations Board - Board Decisions

Sep 10, 1954

109 N.L.R.B. 1278 (N.L.R.B. 1954)

1278 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Furthermore, the courts have refused to enforce Board orders based
upon the retroactive application of Board policy, where to do so would
punish those who, in good faith, conducted themselves in accordance
with the law as previously interpreted.13
In view of precedent and for the reasons I have stated above, I
would sustain the Regional Director's dismissal of the original pe-
tition upon the basis of the Centr-O-Cast doctrine and would dismiss
the second petition on the ground that it was barred by the contract
between the Employer and the certified union.
MEMBER PETERSON, dissenting :
For the reasons stated by Member Murdock in his separate dis-
sent, I'would also hold that the instant petition is barred by the con-
tract between the Employer and the Teamsters.
13 N. L. R B. v. Guy F Atkinson Co , et al , 195 F. 2d 141 (C. A 9).
NATVAR CORPORATION and UNITED PAPERWORKERS OF AMERICA, CIO,
PETITIONER
NATVAR CORPORATION and LOCAL 55, INTERNATIONAL BROTHERIIOOD OF
FIREMEN AND OILERS, AFL, PETITIONER. Cases Nos. 4-RC-2377
and /.-RC-0396. September 10, 1954
Decision and Direction of Elections
Upon separate petitions filed under Section 9 (c) of the National
Labor Relations Act, a consolidated hearing was held before Eugene
M. Levine, hearing officer. The hearing officer's rulings made at the
hearing are free from prejudicial error and are hereby affirmed.
Upon the entire record in these cases, the Board finds :
1. The Employer is engaged in commerce within the meaning of
the Act.
2. The labor organizations involved claim to represent certain em-
ployees of the Employer.'
3. A question affecting commerce exists concerning the representa-
tion of employees of the Employer within the meaning of Section
9 (c) (1) and Section 2 (6) and (7) of the Act.
1 The hearing officer referred to the Board a motion by Petitioner, United Paperworkers
of America , CIO, herein called the Paperworkers, to deny a place on the ballot to the in-
cumbent Union , Local 533, International Chemical Workers Union, AFL, herein called the
Chemical Workers, upon the ground that the latter did not appear at the hearing although
served with notice thereof The Chemical Workers indicated through the representative
of the other petitioner, Local 55, International Brotherhood of Firemen and Oilers, AFL,
herein called the Firemen , and by direct communication with the hearing officer, that it
desired to appear on the ballot. In view of this expression of interest by the Chemical
Workers and its status as bargaining representative under an existing collective-bargain-
ing contract , the motion to refuse it a place on the ballot is hereby denied.
109 NLRB No. 186.
NATVAR CORPORATION 1279
The Employer contends that an existing collective-bargaining con-
tract is a bar to this proceeding.
On April 24, 1953, following an election, the Board certified the
Chemical Workers as bargaining representative of the production and
maintenance employees at the Employer's Woodbridge, New Jersey,
electrical insulation manufacturing plant. The Employer and the
Chemical Workers entered into a collective-bargaining agreement for
the employees covered by the certificate effective from June 28, 1953,
to May 24, 1954, subject to automatic renewal from year to year there-
after, unless either party gave written notice to terminate or nego-
tiate a new contract not less than 60 days before the contract's expira-
tion date. Neither contracting party gave such notice.
On February 23, 1954, about a month before the Mill B 2 or opera-
tive date of the renewal clause in the contract, the Paperworkers re-
quested recognition of the Employer as bargaining representative of
the employees in the certified unit and filed a representation petition
with the Board. A field examiner for the Board subsequently notified
the Paperworkers that the petition was untimely because filed within
the certification year and would be dismissed unless withdrawn.3 The
Paperworkers thereupon withdrew its petition. On the first workday
after the expiration of the certification year, it filed another petition.
On March. 26, 1954, the Firemen asked the Employer for recogni-
tion as bargaining representative of the stationary firemen employed
in its plant and several days later filed a representation petition with
the Board. The Regional Director dismissed the petition because it
was filed within the certification year. Thereafter, the Firemen re-
quested leave to withdraw its petition. The Regional Director ap-
proved the request and withdrew his notice of dismissal. On May 11,
1954, the Firemen filed the present petition.
In the recently decided Ludlow Typograph case,4 the Board held
that when an employer and a certified union, following certification,
enter into a collective-bargaining contract, the terms of the contract
and the normal contract-bar rules, rather than the certificate, deter-
mine whether a rival union petition filed during the certification year
is timely. To this extent the Board expressly modified the rule of the
Centr-O-Cast case, supra, which had held that all rival union petitions
filed during the certification year were untimely regardless of contract
provisions.
Under the rule of the Ludlow Typograph case, therefore, the Paper-
workers' February 23, 1954, petition was timely because it was filed
about a month before the Mill B date of the 1953 agreement. The
Paperworkers withdrew that petition only because of the representa-
2 Mill B, Inc., 40 NLRB 346.
3 Centr-O-Cast Engcneenng Co, 100 NLRB 1507.
4 Ludlow Typogi aph Company, 108 NLRB 1463
1280 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tion of a Board agent that it would be dismissed unless withdrawn. It
would be unfair to penalize the Paperworkers for acting on this advice,
even if based on a correct interpretation of administrative practice
as it then existed. Accordingly, we shall treat the Paperworkers' peti-
tion as effective from the date of original filing.,' Inasmuch as the
petition was timely filed with respect to the Mill B date of the 1953
agreement, we find that this contract is not a bar.
4. The appropriate units :
The Paperworkers seeks to represent a unit of production and main-
tenance employees corresponding to the existing contract unit. The
Firemen seeks to sever from the contract unit the four stationary fire-
men employed in the boilerroom. The Employer agrees with the Pa-
perworkers' unit position and opposes severance of the firemen on the
ground that they are not craftsmen.
The production and maintenance unit sought by the Paperworkers
is clearly appropriate. The appropriateness of the unit requested by
the Firemen turns on whether this unit meets the requirements for
severance enunciated in the American Potash case s
There are four licensed stationary firemen who comprise a separate
department which supplies steam necessary for the Employer's manu-
facturing operations and for heating the plant. The firemen work
principally in the boilerroom where they perform the typical func-
tions required to maintain steam in a plant. It is thus clear that the
firemen constitute a functionally distinct and separate department of
the type to which the Board has heretofore granted severance from a
more comprehensive unit. Moreover, the Firemen is a union which
historically and traditionally represents such a unit. Accordingly,
we find that the stationary firemen may constitute a separate appro-
priate unit if they so desire.7
We shall direct elections in the following voting groups of employ-
ees at the Employer's Woodbridge, New Jersey, plant, excluding from
each voting group office clerical employees, guards, professional em-
ployees, and supervisors as defined in the Act :
(1) All stationary firemen.
(2) All production and maintenance employees.
If a majority of the employees in voting group (1) select the union
seeking to represent them separately, those employees will be taken
to have indicated their desire to constitute a separate bargaining unit
and the Regional Director conducting the election is instructed to
issue a certification of representatives to the labor organization seek-
ing and selected by the employees for such unit, which the Board, in
5 Pioneer Division, The Fiintkote Company, 109 NLRB 1273.
6 American Potash & Chemical Corporation, 107 NLRB 1418.
7 See footnote 6.
NATVAR CORPORATION 1281
such circumstances, finds to be appropriate for the purposes of col-
lective bargaining.
On the other hand, if a majority of the employees in voting group
(1) do not vote for the union which is seeking to represent them in a
separate unit, that group will appropriately be included in the produc-
tion and maintenance unit and their votes shall be pooled with those in
voting group (2),$ and the Regional Director conducting the election
is instructed to issue a certification of representatives to the labor or-
ganization selected by a majority of the employees in the pooled group,
which the Board, in such circumstances, finds to be a single unit ap-
propriate for purposes of collective bargaining.
[Text of Direction of Elections omitted from publication.]
MEMBER Muxnocx , dissenting :
For the reasons stated in my dissenting opinion in the Flintkote
case,9 wherein I disagreed with the retroactive application of the
Ludlow doctrine, and for the further reasons set forth below I must
also dissent from the decision in the instant case.
The Papermakers filed its original petition before 1 year had ex-
pired from the date on which the Chemical Workers had been certified
by the Board. Upon being informed by a Regional Officer that the
petition was not timely filed and would be dismissed in accordance
with the Board's then existing rule as expressed in the Centr-O-Cast
case, the Papermakers, with the approval of the Regional Director,
voluntarily withdrew the petition. Its second petition, upon which
the hearing in the case was held, was filed after the expiration of the
certification year but was barred by the automatic renewal of the con-
tract between the Employer and the certified union.
The majority, admitting the ineffectiveness of the Papermakers'
second petition for the purpose of ordering an election, has retroac-
tively applied the Board's new policy in the Ludlow case to test the
timeliness of the first petition and has ordered an election upon the
basis of that petition, although it was voluntarily withdrawn and
Case No. 4-RC-2377 was closed pursuant to Section 102.52 of the
Board's Rules and Regulations which provides :
Whenever the regional director . . . approves the withdrawal of
any petition, the case shall be closed. [Emphasis supplied.]
Therefore, as the proceeding, which was commenced by the filing of
the Papermakers' first petition, was terminated and the subsequent
8 If the votes are pooled, they are to be tallied in the following manner : the votes for
the union seeking the separate unit shall be counted as valid votes, but neither for nor
against any union seeking to represent the more comprehensive unit ; all other votes are to
be accorded their face value, whether for representation in a union seeking the compre-
hensive group or for no union.
9 Pioneer Division, The Flintkote Company, supra.
1282 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and separate proceeding initiated by the filing of the second petition
was barred by an existing contract, there is, I submit, no proceeding
before the Board in which an election can be ordered. By ordering
an election on the strength of the withdrawn petition in the closed
case, the majority ignores not only the Board's published Rules and
Regulations, but also Board precedent and sound administrative
practice. For as the Board said in Sylvania Electric Products, Inc.,
103 NLRB 989:
The ... proceeding having been effectively terminated [by the
withdrawal of the petition] there was ... no proceeding pend-
ing in which the election . . . could be held.
Furthermore, the majority's decision is contrary to sound adminis-
trative practice. The Papermakers had available to it adequate
remedy to challenge the Regional Officer's position that the original
petition was untimely filed. It could have refused to heed the Re-
gional Officer's recommendation, awaited the Regional Director's dis-
missal of the petition, and then appealed the dismissal to the Board.
It did not choose to utilize Board procedure to advocate its position,
but voluntarily withdrew its petition. Unless the Board insists that
parties employ prescribed legal remedies in prosecuting their claims,
there can be no finality to Board proceedings.
For the above stated reasons, I would refuse to entertain the Paper-
makers' first petition and would dismiss the second petition as being
barred by contract.
MEMBER PETERSON took no part in the consideration of the above
Decision and Direction of Elections.
AMERICAN BRAKE SHOE COMPANY, SOUTHERN WHEEL DIVISION and
INTERNATIONAL MOLDERS AND FOUNDRY WORKERS UNION OF NORTH
AMERICA, AFL, PETITIONER. Case No. 10-RC-2798. September
10, 1954
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 David L. Trezise,
hearing officer. The hearing officer's rulings made at the hearing
are free from prejudicial error and are hereby affirmed.
Upon the entire record in this case, the Board finds :
1. The Employer 1 is engaged in commerce within the meaning of
the Act.
2. The labor organization involved claims to represent certain em-
ployees of the Employer.
I The Employer's name appears as amended at the hearing.
109 NLRB No. 180.