River Forest Golden Bear Joint Venture

National Labor Relations Board - Board Decisions

Jun 30, 1975

218 N.L.R.B. 1074 (N.L.R.B. 1975)

1074 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
River Forest Golden Bear Joint Venture, Employer-
Petitioner and Chicago Joint Executive Board of
the Hotel and Restaurant Employees and Bar-
tenders International Union, AFL-CIO and its
affiliated Union, Hotel, Motel, Club, Cafeteria,
Restaurant Employees and Bartenders Internation-
al Union, AFL-CIO, Local 450. Case 13-RM-
1151
June 30, 1975
DECISION ON REVIEW AND
DIRECTION OF ELECTION
BY MEMBERS FANNING, JENKINS, AND
KENNEDY
On January 14, 1975, the Regional Director for
Region 13 issued a Decision and Order in the above-
entitled proceeding in which he dismissed the
Employer's petition as untimely filed. Thereafter, the
Employer, in accordance with Section 102.67 of the
National Labor Relations Board Rules and Regula-
tions , Series 8, as amended, filed a timely request for
review of the Regional Director's decision, contend-
ing, inter alia, that the Regional Director's decision
raises substantial questions of law and policy because
it departs from officially reported precedent. The
Union filed a brief in opposition to the request for
review.
On March 4, 1975, the National Labor Relations
Board , by telegraphic order, granted the request for
review. 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 with respect to the issues under review,
including the brief on review, and makes the
following fmdings:
On May 30, 1972, the Employer and the Union
executed a contract, effective until November 30,
1974, which provided , inter alia, that, absent written
notice of termination given not more than 90 days
nor less than 60 days prior to November 30, 1974, or
any anniversary date thereof, the contract would be
automatically renewed. No party to the contract filed
such notice of termination. However, on October 1,
1974, the Employer filed the instant petition.
The Regional Director dismissed the petition. He
concluded that since notice of termination was not
r Deluxe Metal Furniture Company, 121 NLRB 995 (1958).
2 Leonard Wholesale Meats, Inc., 136 NLRB 1000 (1962).
3 Montgomery Ward & Co., Incorporated, 137 NLRB 346 (1962).
4 The Absorbent Cotton Company, 137 NLRB 908 (1962).
5 The petition in Montgomery Ward was filed during the third year of a 5-
year contract; the petition in Absorbent Cotton was filed during the thud
218 NLRB No. 161
given the contract was automatically renewed and,
therefore, barred the petition. The Employer con-
tends that the petition was filed 61 days prior to the
terminal date of the contract and was therefore
timely under the Deluxe Metal Furniture' rule, as
modified in Leonard Wholesale Meats.2 We find
merit in the Employer's contention.
In Deluxe Metal Furniture, we held that a petition
is timely filed if it is filed not more than 150 days nor
less than 60 days prior to the terminal date of a
contract. In Leonard Wholesale Meats, we modified
that holding by shortening the period of timely filing
to not more than 90 days nor less than 60 days prior
to the terminal date. The petition here was, therefore,
timely filed under Leonard
Montgomery Ward & Co.3 and Absorbent Cotton &
Co.,4 cited by the Regional Director, involved facts
significantly different from those in the instant case,
and do not require a different result. Neither case
involved a petition timely filed during the open
period of a contract,5 nor did they involve the effect
of an automatic renewal clause on the timeliness of a
petition. Moreover, in neither case did we hold that a
petition filed during the, open period of a contract
would be untimely if filed by a party to the contract.
To the contrary, in Montgomery Ward we held that:
"absent a conflicting timely claim by a rival union, a
petition by either of such parties to a contract is
timely only when filed at the proper time with respect
to the contract's expiration date, '16 citing Deluxe Metal
(emphasis supplied). Since the petition was filed on
October 1, 1974, 61 days prior to the expiration date
of the contract, the petition herein was timely under
these cases as well.
Furthermore, the Employer's failure to give notice
of intent to terminate the contract does not, under
the circumstances of this case, nullify the timeliness
of the petition. Where, as here, the petition is timely
filed during the open period of the contract and prior
to the Mill B date,7 the subsequent expiration of the
Mill B date does not operate retroactively to render
the petition untimely.
In view of the foregoing, we shall remand the case
to the Regional Director for the purpose of conduct-
ing an election in the following unit: 8
All full-time and regular part-time waiters, wait-
resses , cooks, bus boys, cashiers, hostesses and
dishwashers employed at the Employer's restau-
rant presently located at 7301 West North
Avenue, River Forest, Illinois, but excluding
year of a 3-year contract, but not within the open period prior to its
termination.
6 Montgomery Ward, supra at 347.
7 Mill B, Inc., Division of Irwin & Lyons, Partners, d/b/a/ Irwin & Lyons,
40 NLRB 346 (1942).
8 The unit is as stipulated by the parties.
RIVER FOREST GOLDEN BEAR 1075
confidential employees , professional employees, [Direction of Election and Excelsior footnote
guards and supervisors as defined in the Act . omitted from publication.]