Eppinger & Russell Co.

National Labor Relations Board - Board Decisions

Aug 19, 1948

78 N.L.R.B. 1178 (N.L.R.B. 1948)

In the Matter of EPPINGER & RUSSELL CO., EMPLOYER and INDUSTRIAL
UNION OF MARINE & SHIPBUILDING WORKERS OF AMERICA, CIO7 PE-
TITIONER and FOOD, TOBACCO, AGRICULTURAL & ALLIED. WORKERS- OF
AMERICA, CIO, LOCAL No. 4A, INTERVENOR
Case No. 10-RC-158.-Decided August 19, 1948
DECISION
AND
DIRECTION OF ELECTION
Upon a petition duly filed, a hearing was held before a hearing officer
of the National Labor Relations Board. The hearing officer's rulings
made at the hearing are free from prejudicial error and are hereby
affirmed.
.Pursuant to the provisions of Section 3 (b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-man panel consisting of the undersigned Board
Members. *
Upon the entire record in this case, the Board finds :
1. The Employer is engaged in commerce within the meaning of
the National Labor Relations Act.
2. Industrial Union of Marine & Shipbuilding Workers of America,
affiliated with the Congress of Industrial Organizations, herein called
the Petitioner; Food, Tobacco, Agricultural & Allied Workers . of
America, Local No. 4A, affiliated with the Congress of Industrial Or-
ganizations, herein called the Intervenor; and International Chemical
Workers Union, affiliated with the American Federation of Labor,
herein called the I. C. W. U., are labor organizations claiming to repre-
sent employees of the Employer.'
*Chairman Herzog and Members Houston and Reynolds.
I The I. C. W. U was not served with notice of hearing and did not appear. After the
bearing the I C W. U moved to intervene in this proceeding for the purpose of having its
name appear on the ballot . In support of its motion , the I C W U submitted certain
authorization cards purporting to bear the names of employees in the unit herein found
appropriate As some of the authorization cards submitted by the I C W U were secured
before the date of the hearing on the instant petition , and its motion is not otherwise un-
timely, the instant motion to intervene is hereby granted . See Matter of Allen B. Dumont
Laboratories, Inc, 77 N. L. R. B 121
78 N. L. R. B., No. 167.
1178
EPPINGER & RUSSELL CO. 1179
3. The question concerning representation :
On January 1, 1947, the Employer and the Intervenor entered into
a collective bargaining agreement covering the Employer's production
and maintenance employees. The contract provided for an initial term
of 1 year, and for its automatic renewal for a period of 1 additional
year thereafter, in the absence of written notice of a desire to modify
or cancel given by either party 30 days prior to the expiration date of
the contract. Neither of the parties thereto gave such notice in 1947,
and the contract was automatically renewed on January 1, 1948. On
February 1, 1948, the Petitioner notified the Employer that it repre-
sented a majority of the Employer's employees, and requested rec-
ognition as the collective bargaining representative. The Employer
refused to recognize the Petitioner on the ground that the existing
contract, as automatically renewed in 1948, barred a present deter-
mination of representatives.
- The Petitioner contends that the existing contract should not con-
stitute a bar, upon the ground that the Intervenor has ceased to func-
tion as collective bargaining representative under its contract with the
Employer. This contention rests, primarily, upon the alleged failure
of the Intervenor's agent to appear at meetings, to process grievances
properly, and to negotiate changes in the contract, and upon the fact
that dues have not been checked off since October 1947. There is also
a petition signed by approximately 106 employees of the Employer
stating, in effect, that the Intervenor has been derelict in discharging
its duties as a bargaining representative, and that they are prepared
to withdraw from said Intervenor, and apply for another C. I. O.
charter. Although the employees were not satisfied with the Inter-
venor's representation, on April 30, 1948, a shop committee 2 repre-
senting the Intervenor executed a supplement to the 1948 contract on
behalf of the Intervenor making changes in the wage structure, and
extending the termination date from December 31, 1948, to December
31, 1949. This clearly evinces a present interest by the Intervenor in
,the employees involved in this case. We, believe therefore, that the
Intervenor has not abandoned the contract and is not incapable of
functioning as the collective bargaining representative for the em-
ployees in the unit. However, where, as here, the parties extend the
expiration date of a contract, they "open" the contract so as to permit
a rival union to raise a question concerning representation .3 Accord-
ingly, we find that the 1948 contract, as extended, is not a bar to a
present determination of representatives.
2 The shop committee was composed of 10 members of the Intervenor. This committee
after arranging the details of the supplemental agreement circulated it among the employees
in the unit . The majority of the employees also signed a petition authorizing this com-
mittee to act on behalf of the Intervenor.
See Matter of Beattie Manufacturing Company, 77 N. L . R. B. 366.
1180 DECISIONS OF NATIONAL LABOR'RELATIONS BOARD
We find that a question affecting commerce exists concerning the
representation of employees of the Employer, within the meaning of
Section 9 (c) (1) and Section 2 (6) and (7) of the Act.
4. The following employees of the Employer constitute a unit ap=
propriate for the purposes of collective bargaining within the mean-
ing of Section 9 (b) of the Act: All of the Employer's production and
maintenance employees working at the Employer's Jacksonville, Flor-
ida, plant, excluding office workers, plant protection foremen, sub-
foremen, guards, professional employees, and supervisors as defined
in the Act.
DIRECTION OF ELECTION 4
• As part of the investigation to ascertain representatives for the
purposes of collective bargaining with the Employer, an election by
secret ballot shall be conducted as early as possible, but not later than
30 days from the date of this Direction, under the direction and super-
vision of the Regional Director for the Region in which this case was
heard, and subject to Sections 203.61 and 203.62 of National Labor
Relations Board Rules and Regulations-Series 5, among the em-
ployees in the unit found appropriate in paragraph numbered 4, above,
who were employed during the pay-roll period immediately preceding
the date of this Direction of Election, including employees who did
not work during said pay-roll period because they were ill or on vaca-
tion or temporarily laid off, but excluding those employees who have
since quit or been discharged for cause and have not been rehired • or
reinstated prior to the date of the election, and also excluding em-
ployees on strike who are not entitled to reinstatement, to determine
whether they desire to be represented, for purposes of collective bar-
gaining, by Industrial Union of Marine & Shipbuilding Workers of
America, CIO, or by International Chemical Workers Union, AFL,
or by neither.
4Inasmuch as Food, Tobacco, Agricultural & Allied Workers of America, Local No. 4A,
CIO, is not in compliance with the provisions of Section 9 (f), (g), and ( h) of the Act, we
omit its name from the ballot . Any participant in the election directed herein may, upon
its prompt request to , and approval thereof by , the Regional Director , have its name removed
from the ballot.