The Flintkote Co.

National Labor Relations Board - Board DecisionsSep 10, 1954

109 N.L.R.B. 1273 (N.L.R.B. 1954)

PIONEER DIVISION, THE FLINTKOTE COMPANY 1273 PIONEER DIVISION, THE FLINTKOTE COMPANY and UNITED STEELWORK- ERS OF AMERICA, CIO, PETITIONER PIONEER DIVISION, THE FLINTKOTE COMPANY and INTERNATIONAL BROTHERHOOD OF PAPER MAKERS , AFL, AND INTERNATIONAL BROTHERHOOD OF PULP, SULPHITE , AND PAPER MILL WORKERS, AFL, PETITIONER PIONEER DIVISION , THE FLINTKOTE COMPANY and INTERNATIONAL UNION OF OPERATING ENGINEERS, STATIONARY LOCAL No. 39, AFL, PETITIONER . Cases Nos . 2O-RC-f469 , 2O-RC-2010, 20-RC-9463, and 20-RC-92505. September 10,1954 Decision , Order, and Direction of Elections Upon petitions duly filed under Section 9 (c) of the National Labor Relations Act, a hearing on the consolidated cases 1 was held before M. C. Dempster, 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. The Intervenor, Warehouse Union Local 12, International Brother- hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, AFL, herein referred to as the Teamsters, was certified as representative of the production and maintenance unit at the Em- ' Cases Nos . 20-RC-2462 and 20-RC-2463 were consolidated by the Regional Director on November 17, 1953, prior to the hearing Case No. 20-RC-2010, filed by the Paper Makers and Pulp Workers , was dismissed by the Regional Director on October 28, 1953. Hence, for the reasons set forth in paragraph numbered 3, infra, the petition in 20-RC-2463 was in the nature of an appeal from the Regional Director 's action, the Regional Director 's dismissal in 20-RC-2010 is overruled and 20-RC-2010 is consolidated herewith for purposes of decision. International Union of Operating Engineers, Stationary Local No. 39, AFL, herein referred to as Operating Engineers , filed a petition in Case No 20-RC-2505 after the hear- ing, requesting a separate unit of firemen As the Operating Engineers had acquired a sufficient showing of interest in the unit requested at the time of the hearing, and had not been previously notified of that proceeding, we hereby consolidate Case No. 20-RC-2505 with Cases Nos. 20-RC-2462, 20-RC-2010, and 20-RC-2463. F. H. McGraw & Company, 106 NLRB 624 In this connection, we find it unnecessary to grant the Operating Engi- neers' motion accompanying the petition in which it moved that the Board either reopen this record or grant it a hearing on its unit request, as the record herein is sufficient to permit us to pass upon the merits of the petition. 109 NLRB No. 183. 1274 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ployer's San Leandro, California, paper and corrugated box plant on November 5, 1952. It executed a contract with the Employer on March 16, 1953, effective until November 4, 1953. On October 26, 1953, International Brotherhood of Paper Makers, AFL, and Inter- national Brotherhood of Pulp, Sulphite and Paper Mill Workers, AFL, herein referred to as Paper Makers and Pulp Workers, filed a joint petition for an election in the production and maintenance unit (Case No. 20-RC-2010). The Regional Director, relying on the Centr-O-Cast case,' dismissed the petition on October 28, 1953, as un- timely because it was filed prior to the end of the certification year. On November 5, 1953, the day after the certification year expired, Paper Makers and Pulp Workers filed its instant petition (Case No- 20-RC-2063) .3 On the same day, November 5, 1953, the Employer and the Teamsters completed the execution of a second contract, ef- fective for 3 years, from November 5, 1953, until November 4, 1956. The Employer and the Teamsters contend that their second contract, fully executed on November 5, 1953, bars an election at this time. In Ludlow Typograpit Company,4 a majority of the Board 5 held that a second contract executed during the certificate year would not bar a petition which was timely filed with respect to the execution of that second contract. The decision in that case thereby modified the Centr-O-Cast rule, for it held, in effect, that where an employer and a certified union execute one contract within the certification year, the certification year merges with that contract, after which there is no need to protect the certification further, and the contract becomes con- trolling with respect to the timeliness of the filing of a rival petition. Under the rule of the Ludlow case, which we believe should be applied here, we find that the first petition of the Paper Makers and Pulp Workers, which was filed 9 days before the termination date of the original contract, was timely filed, even though such filing occurred during the certification year. As we are applying the rule in the Ludlow case to this case, the Regional Director's dismissal of Case No. 20-RC-2010 is overruled. We regard as immaterial the question of whether Paper Makers and Pulp Workers filed an appeal from the Regional Director's dismissal of its first petition. In any event, as the instant petition of Paper Mak- ers and Pulp Workers was filed within the 10-day period prescribed in the Board's Rules and Regulations for seeking review by the Board 2 Centr-O-Cast & Engineering Company, 100 NLRB 1507 . The cited case held that a Board certificate "should be permitted to run its complete 1-year course before any ques- tion of the representative status of the certified union is given formal cognizance by the Board." 3 The petition of United Steelworkers of America, CIO, requesting a separate main- tenance unit, was also filed on November 5, 1953. 4 108 NLRB 1463. 5 Members Murdock and Peterson dissenting. PIONEER DIVISION, THE FLINTKOTE COMPANY 1275 of the Regional Director's action in dismissing its prior petition, we conclude that the instant petition is tantamount to an appeal from that action and the hearing in Case No. 20-RC-2463 was tantamount to a hearing also in Case No. 20-RC-2010. Accordingly, we find that the contract which the Employer and the Teamsters executed on November 5, 1953, does not constitute a bar to elections 6 in these cases.' 4. Paper Makers and Pulp Workers requests a unit of all produc- tion and maintenance employees including shipping and receiving and warehouse employees and firemen, but excluding office clerical employ- ees, oilers, guards, professional employees, and supervisors as defined in the Act. The Operating Engineers requests a separate unit of fire- men. The Steelworkers requests a separate unit of maintenance em- ployees, excluding firemen. The Employer and the Teamsters agree .with Paper Makers and Pulp Workers that only a production and maintenance unit is appropriate. The Paper Makers and Pulp Workers seeks an election in the exist- ing production and maintenance unit, which is clearly appropriate. The appropriateness of the units requested by the Operating Engi- neers and the Steelworkers turns on whether they meet the requirements for severance from the existing unit. The four firemen, requested by the Operating Engineers, are cur- rently part of the Employer's maintenance department and are super- vised by the master mechanic, who is also a licensed boiler engineer. The duties of the firemen, who are not licensed, are confined to the steam plant, located in a separate building, where they perform the typical functions required to maintain steam for the paper mill and corrugated box production departments. It is thus clear that the fire- men constitute a functionally distinct and separate powerhouse de- partment of the type to which the Board has heretofore granted sever- ance from a more comprehensive unit. In addition, the Operating Engineers is a union which historically and traditionally represents such a unit. Accordingly, we find, despite their prior inclusion in the broader unit, that the firemen may constitute a separate appropriate unit if they so desire 8 The electricians, mechanic leadman, mechanics A and B and me- chanics in the corrugated box department, and oilers, requested by the Steelworkers, constitute, along with the firemen, the Employer's entire maintenance department. They are supervised by the master mechanic, and perform general preventative maintenance and repair on production machinery and plant equipment. The maintenance- 0 In view of our disposition of this issue, we find it unnecessary to rule on the other con- tract -bar contentions. I For the reasons stated in paragraph numbered 4, we are dismissing the petition in 20-RC-2462 8 American Potash & Chemical Corporation, 107 NLRB 1418. 1276 DECISIONS OF NATIONAL LABOR RELATIONS BOARD employee unit requested by the Steelworkers is a type which the Board does not sever from a production and maintenance unit in the face of a history of bargaining on a broader basis.' As the mainte- nance employees have been bargained for as part of the production and maintenance unit since the execution by the Employer and the Teamsters of the March 16, 1953, contract, we find, in accordance with established Board policy, that they do not constitute an appropriate unit, and we shall dismiss the Steelworkers' petition in Case No. 20-RC-2462.10 We shall direct elections in the following voting groups : (1) All firemen. (2) All production and maintenance employees, including shipping and receiving and warehouse employees, but excluding office clerical employees, oilers," guards, professional employees, and supervisors as defined in the Act. If a majority of the employees in voting group (1) select the Oper- ating Engineers, they will be taken to have indicated their desire to constitute a separate bargaining unit, and if a majority of the em- ployees in voting group (2) select either the Paper Makers and Pulp Workers or the Teamsters, the Regional Director conducting the elec- tions is instructed to issue certifications of representatives to the labor organizations so selected by the employees in each group for such units, which the Board in such circumstances finds to be appropriate for purposes of collective bargaining. On the other hand, if a majority of the employees in voting group (1) do not vote for the Operating Engineers, that group will appro- priately be included in the production and maintenance unit and their votes shall be pooled with those in voting group (2),12 and the Re- gional Director conducting the election is instructed to issue a cer- tification of representatives to the labor organization selected by a majority of the employees in the pooled group, which the Board, in such circumstances, finds to be a single unit appropriate for purposes of collective bargaining. [The Board dismissed the petition in Case No. 20-RC-2462.] [Text of Direction of Elections omitted from publication.] e Westinghouse Electric Corporation, 96 NLRB 1128; St Regis Paper Company, 84 NLRB 454. 10 Nesco, Inc , 101 NLRB 147 11 In agreement with the Paper Makers and Pulp Workers, we exclude the oilers as they spend part of their time performing guard duties Nash Kelvinator Corporation, 107 NLRB 644. 13 If the votes are pooled , they are to be tallied in the following manner : the votes for the Operating Engineers 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 by a union seeking the comprehensive group or for no union. PIONEER DIVISION, THE FLINTKOTE COMPANY 1277 MEMBER MURDOCK, dissenting : I cannot agree with the majority's decision to apply the rule enun- ciated in the recent Ludlow case retroactively to test the timeliness of the petition in the instant case. The Paper Makers and Pulp Workers filed their original joint peti- tion before 1 year had expired from the date of the Teamsters' certifi- cation by the Board. Their second petition, upon the basis of which the hearing in the case was held, was barred by an existing contract between the Employer and the Teamsters. At the time the petitions were filed, it was the Board's well-established policy not to entertain a rival petition until the expiration of 1 full year from the certifica- tion date of an incumbent union. This policy was clearly set forth in the published Centr-O-Cast case. The Board's theory was that, in the interest of more stabilized labor relations, the majority represen- tative status of a certified union should be presumed for at least a 1- year period not be subject to challenge during that period. It is un- disputed, therefore, that the Regional Director was correctly carry- ing out then existing Board policy when he dismissed the Paper Makers and Pulp Workers' original petition as being untimely filed. The majority now overrule the Regional Director's dismissal to find that the petition was timely filed, because of new Board policy pro- mulgated almost 1 year after the dismissal. To my mind the retro- active application of this new rule is unsound in the circumstances of this case. In the instant case, the Employer and the certified unions, justi- fiably relying upon the Board's published Centr-O-Cast doctrine and the Regional Director's dismissal of the Paper Makers and Pulp Workers' petition based thereon, negotiated and executed an agree- ment to stabilize and insure their bargaining relationship. The ma- jority, contrary to precedent and sound administrative practice, would now disrupt this relationship although, at its commencement, it was sanctioned and protected by Board doctrine. Indeed, the majority in the current case, joined the majority in Wagner Iron Works, 108 NLRB 1236, in which the Board stated : "The Board like the courts, operates prospectively, not retroactively." [Emphasis supplied.] In an even more recent decision, Shirlington Supermarket, Inc., 109 NLRB 192, the Board, again refusing to apply new policy retro- actively to penalize those who had relied upon prior policy, said : The [Board's] rule which was the rule in effect at the time of the first election, was a valid exercise of the Board's administra- tive discretion. It was not invalidated retroactively merely by the subsequent establishment of a new election rule. . . . 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 BROTHERHOOD OF FIREMEN AND OILERS, AFL, PETITIONER. Cases Nos. 4-RC-2377 and 4-RC-2396. September 10, 195!p 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) andSection 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.