Vanity Fair Mills, Inc.

National Labor Relations Board - Board DecisionsJul 2, 1981

256 N.L.R.B. 1104 (N.L.R.B. 1981)

1104 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Vanity Fair Mills, Inc., Clarke Mills Division and Paul Parden, Petitioner. Case 15-RD-465 July 2, 1981 DECISION AND DIRECTION OF ELECTION On September 29, 1980, employee Paul Parden (herein the Petitioner) filed a decertification peti- tion under Section 9(c) of the National Labor Rela- tions Act, as amended. The petition asserted that International Ladies' Garment Workers' Union, AFL-CIO, Local Union No. 118 (herein the Union),' certified since April 5, 1977, as the exclu- sive bargaining representative of all production and maintenance employees employed by Vanity Fair Mills, Inc., Clarke Mills Division (herein the Em- ployer), at its Jackson, Alabama, plant, was no longer the representative of those employees. On October 20, following an investigation, the Acting Regional Director for Region 15 dismissed the petition, on the grounds that the collective-bar- gaining agreement then in effect between the Em- ployer and the Union constituted a bar to further proceedings on the instant petition. Thereafter, Petitioner filed with the Board a re- quest for review of the Acting Regional Director's dismissal of the petition. Having duly considered the matter, the Board issued its Ruling on Adminis- trative Action on January 23, 1981, in which it concluded that reinstatement of the petition was warranted. Accordingly, the petition was reinstated and the case was remanded to the Regional Direc- tor for appropriate action. Subsequently, a hearing was held before Hearing Officer A. W. Schwing, Jr., of the National Labor Relations Board. Following the close of the hear- ing the Regional Director transferred the case back to the Board for decision. 2 Thereafter Petitioner and the Union both filed briefs, and the Union also filed a motion for oral argument. That motion is hereby denied, as the record and briefs adequately present the issues and positions of the parties. ' The Union was permitted to itervenle at the hearing 2 In its Ruling on Administrative Action reinstating the instant petition following the Acting Regional Director's dismissal thereof, the Hoard concluded that neither the October 2, 1977-December 15, 1980, collec- tive-bargaining agreement belween the Union and the lEmployer, nor the September 17. 1980, memorandum f agreement between those parties, renewing their contract from September 17, l80- December 15, 1983, was a bar to the decertification election petitioned for herein According- ly, the Board reinstated the petition and remanded the proceeding to the Regional Director for appropriate action. On remand. however. the Re- gional Director directed that a hearing be conducted to resolve the issue, as framed by the Hearing Officer, of whether the aforenicitioned Sep- tember 17, 1980, memorandum of agreement between the Union and the Employer constituted a bar to the instant petition-an issue which, as seen above, the Board had expressly resolved in the negative i its earlier Ruling on Administrative Action 256 NLRB No. 168 The Board has reviewed the Hearing Officer's rulings made at the hearing and finds that they are free from prejudicial error. They are hereby af- firmed. Upon the entire record in this proceeding, the Board finds: 1. The Employer is a Delaware corporation en- gaged in the manufacture and sale of ladies' linge- rie at its Jackson, Alabama, facility. The parties have stipulated and we find that during the preced- ing 12-month period, which is a representative period, the Employer sold and shipped directly to points outside the State of Alabama products valued in excess of $50,000, and that during the same 12-month period the Employer purchased and had shipped directly to it from points outside the State of Alabama supplies and materials valued in excess of $50,000. Accordingly, we find that the Employer is engaged in commerce within the meaning of the Act and it will effectuate the pur- poses of the Act to assert jurisdiction herein. 2. The parties stipulated and we find that the Union is a labor organization within the meaning of the Act. 3. A question affecting commerce exists concern- ing the representation of certain employees of the Employer within the meaning of Section 9(c)(1) and Section 2(6) and (7) of the Act. 4. The parties stipulated and we find that the ap- propriate unit is: All production and maintenance employees at the Employer's Jackson, Alabama, plant; ex- cluding office clerical employees, supervisors including section instructors, sewing room in- structors, marker supervisors, quality control instructors, press pack foreladies, quality con- trol supervisors, standards analysts, assistant sewing room managers, chief sewing room ma- chinists, air conditioning engineers, mainte- nance foremen, and other professional employ- ees, guards and supervisors as defined in the Act. Despite our aforementioned Ruling on Adminis- trative Action, reinstating the instant petition and finding no contractual bars thereto, the Union con- tinues to maintain that its September 17, 1980-De- cember 15, 1983, collective-bargaining agreement constitutes a bar to the decertification election sought herein. It is well established as a general proposition that an existing collective-bargaining agreement acts as a bar to an election within the unit covered by that agreement, and precludes the filing of a petition for any such election. There are, however, two qualifi- --- VANITY FAIR WITS, . NC 1 105 cations to that general proposition which are rele- vent to the instant case. First, there is an "open period," from 60 to 90 days prior to the expiration date of the existing contract, during which period the existence of the contract will not act as a bar to a petition for an election within the unit covered by the contract. Leonard Wholesale Meats, Inc., 136 NLRB 1000, 1001 (1962), modifying Deluxe Metal Furniture Company, 121 NLRB 995 (1958) (60 to 150 days). Thereafter, however, during the final 60 days of the term of an existing collective-bargaining agree- ment-the "insulated period"-the contract again becomes a bar to petitions for elections. Deluxe Metal Furniture Company, supra. If a new contract is entered into during this final 60-day insulated period of the expiring contract, then the new contract will become a bar to peti- tions for elections for the duration of that contract, subject to the qualification discussed in the follow- ing paragraph. The second important qualification to the con- tract bar principle is that only contracts of "reason- able duration" will act as bars to petitions for elec- tions. The Board has held that collective-bargain- ing agreements of 3 years' duration or less are con- tracts of reasonable duration. General Cable Corpo- ration, 139 NLRB 1123, 1125 (1962), modifying Pa- cific Coast Association of Pulp and Paper Manufac- turers, 121 NLRB 990 (1958) (2 years). Thus, con- tracts with fixed terms of more than 3 years will act as bars to election petitions only during the first 3 years of the contract. General Cable Corporation, supra. Consequently, when an existing collective- bargaining agreement has a fixed term of more than 3 years, the 60-90 day open period for the filing of petitions for election is measured from the third an- niversary date of the start of the contract and not from the expiration date of the contract, and the 60-day insulated period is likewise the 60 days im- mediately preceding the third anniversary of the contract, and not the 60 days immediately preced- ing the expiration of the contract. General Cable Corporation, supra, Pacific Coast Association, supra, Union Carbide Corporation, 190 NLRB 191 (1971). The Employer and the Union were parties to a collective-bargaining agreement covering the period October 2, 1977, through December 15, 1980, a term in excess of 3 years. Based on the above-discussed contract bar principle, the contract would only act as a bar during the first 3 years of its term, through October 2, 1980, and the 60 to 90 day open period during which petitions could be properly filed would be July 5-August 3, as meas- ured from the third anniversary date of the start of the contract. On or about June 11, 1980, : Petitioner tele- phoned the Region 15 office to ask about proce- dures for seeking decertification of the Union. Peti- tioner was advised by a Board field examiner that he could file a decertification petition 60 to 90 days prior to the expiration of the existing contract be- tween the Employer and the Union. The field ex- aminer asked Petitioner to call him back and tell him what the expiration date of the contract was. Thereafter, Petitioner and fellow employee Benny Harrison called back to the Region 15 office, and informed a different Regional Office employee of the December 15, 1980, expiration date of the con- tract; the field examiner with whom Petitioner had initially spoken was not in the office at the time of the return call. On July 18, the Regional Office sent Petitioner the decertification petition he had requested. The letter transmitting the petition reiterated that the petition "[could] not be properly filed in any time period other than 60-90 days prior to the expiration of the contract or any time subsequent to the con- tract expiration." [Emphasis supplied.] On September 17, Petitioner filed a decertifica- tion petition. However, the petition was defective in form (employee signatures on reverse side of the petition), and on September 22 the Regional Office advised Petitioner by letter that he would have to refile in the proper form. Once again, Petitioner was instructed that he "must file [the petition] with our office between the 60th and 90th day of [sic] the expiration date of the union contract. Petitions which are filed outside of this period will be dismissed as untimely." [Emphasis supplied.] On September 29, Petitioner resubmitted his de- certification petition in the proper form. The next day, the Regional Office notified Petitioner that his petition had ben docketed and assigned for investi- gation. Then on October 20, the Regional Office notified Petitioner that his petition was being dismissed, be- cause "the collective-bargaining agreement current- ly in effect between [the Employer] and [the Union] constitutes a bar to further proceedings at this time." Thereafter, Petitioner filed his afore- mentioned request for review of the dismissal of his petition. In the meantime, during September, the Employ- er and the Union were engaged in negotiations over a new contract to succeed the soon-to-expire October 2, 1977-December 15, 1980, contract then in effect. On September 17, the Employer and the Union entered into a memorandum of agreement extending their collective-bargaining agreement :' All datc, hereillnl t r are () S1IICs ,l lhCr ie Itndicated \ ANIlY FAIR MILLS, IN 1106 [)ECISIONS OF NATIIONAL IAO()R RELATIO)NS 3()ARI) from September 17, 1980, through December 15, 1983, with specified modifications. The Union contends that the instant petition should be dismissed because it was not timely filed during the 60-90 day open period prior to the third anniversary of the start of the then existing collec- tive-bargaining agreement, but instead was filed during the 60-day insulated period. Petitioner, on the other hand, points out that he acted in accordance with the advice and instruc- tions he was given by the Regional Office on three separate occasions from mid-June through late Sep- tember, the last two times in writing, that is, that he could file his decertification petition only during the 60-90 day period preceding the termination of the contract, and that if the petition were filed out- side of this period it would be dismissed. We find merit in Petitioner's position. In giving the above advice, the Regional Office was unaware of, and did not attempt to find out, the origination date and the duration of the contract. Because the Region lacked this information its advice to the Pe- titioner was fatally flawed as to the periods during which the petition could be timely filed. The Peti- tioner, of course, was not aware that the advice was flawed. Moreover, he had no reason to suspect that, if he acted on such advice, his petition would be rejected as untimely. Thus, the Petitioner under- standably followed this advice in the reasonable ex- pectation that he was acting in accordance with Board requirements for filing a petition in a timely manner during the contract term. See Madison General Hospital Association, 218 NLRB 954 (1975). 4 Accordingly, in view of the unusual circum- stances presented herein, where Petitioner received from the Regional Office erroneous information concerning the application of a complex provision of Board law and procedure, we hereby affirm our earlier Ruling on Administrative Action reinstating the instant decertification petition, and hereby direct that an appropriate election be conducted, as specified below. [Direction of Election and Excelsior footnote omitted from publication.] 4 In our aforementlioned Ruling on Administrali ve Action, wherein we reinstated the instant petition and ruled that there ere no contractual bars to an election herein, re found that Petitioner had filed his petition im a timely manner with regard to what he rcasonlably considered to be the "expiration date of the original contract" Our use of the quoted phrase was inadvertently ambiguous there neither was nor is any ques- tion about the precise expiration date of the original contract between Ermployer aid the Union. Ratlier, as as clear then ad remains clear now, there as incompletc guidance givren to Pelilioner about the proper time period foir filing his petition.