F. Burkart Manufacturing Co.

National Labor Relations Board - Board Decisions

Oct 24, 1951

96 N.L.R.B. 1049 (N.L.R.B. 1951)

F. BURKART MANUFACTURING COMPANY 1049
the parties had agreed to be bound by a determination of the dispute
by the Joint Board as satisfactory evidence that at the time the charge
was filed the parties had "agreed upon methods for the voluntary ad-
justment of the dispute" within the meaning of Section 10 (k). We
are therefore without authority to determine this dispute, and we shall
accordingly quash the notice of hearing issued in this proceeding.
Order
On the basis of the foregoing findings of fact and conclusions of
law and on the entire record in this case, the Board hereby orders that
the notice of hearing heretofore issued in this proceeding be, and it
hereby is, quashed.
MEMBER REYNOLDS took no part in the consideration of the above
Decision and Order Quashing Notice of Hearing.
F. BURKART MANUFACTURING COMPANY and INTERNATIONAL UNION,
UNITED AUTOMOBILE, AIRCRAFT & AGRICULTURAL IMPLEMENT WORK-
ERS OF AMERICA, CIO, PELPITIONER. Case No. 14-RC-1257. October
°4.,1951
Supplemental Decision and Order
On April 26, 1951, pursuant to a Decision and Direction of Election
issued by the Board on March 30,1951,1 an election by secret ballot was
conducted under the direction and supervision of the Regional Direc-
tor for the Fourteenth Region among the employees in the unit found
appropriate in the Decision. Upon completion of the election, a tally
of ballots was issued and duly served by the Regional Director upon
the parties concerned. The tally reveals that of approximately 174
eligible voters, 157 cast valid ballots, of which 53 were in favor of the
Petitioner, 53 were in favor of the Intervenor, International Associa-
tion of Machinists, herein called Intervenor Machinists, 50 were in
favor of the Intervenor, Upholsterers International Union of North
America, A. F. L., and its Local 702, herein called Intervenor Uphol-
sterers, and none was cast against the participating labor organiza-
tions. There was 1 challenged ballot.
On May 1, 1951, Intervenor Upholsterers filed objections to conduct
affecting the results of the election. Thereupon, in accordance with
the Board's Rules and Regulations, the Regional Director conducted
an investigation and on June 4, 1951, issued and duly served upon the
parties a report on objections. In his report, the Regional Director
found that substantial and material issues with respect to the election
193 NLRB 1092.
96 NLRB No. 158.
1050 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
were not raised by two of the Intervenor Upholsterers' three objections,
and that with respect to matters contained in the remaining objection,
designated as Objection 3, there was evidence disclosed by the investi-
gation which, if true, would warrant the Board's sustaining the ob-
jection and ordering a new election. However, because of the conflict
in testimony obtained in the investigation, the Regional Director rec-
ommended that the Board direct a hearing for the purpose of obtaining
evidence in connection with Objection 3. No exceptions were filed to
the Regional Director's report.
On June 20, 1951, the Board issued an order in which it remanded
this proceeding to the Regional Director and directed that a hearing
be held limited to Objection 3. On July 9, 1951, a hearing was held at
St. Louis, Missouri, before Milton O. Talent, hearing officer of the Na-
tional Labor Relations Board. All parties appeared and participated
and were afforded full opportunity to be heard, to examine and cross-
examine witnesses, and to introduce evidence bearing upon the issues.
On August 30, 1951, the hearing officer issued and caused to be served
upon all parties concerned a report containing his findings and a rec-
ommendation that Intervenor Upholsterers' Objection 3 be overruled.
Intervenor Upholsterers filed exceptions and a supporting brief to the
hearing officer's report on September 7, 1951.
The Board has reviewed the rulings of the hearing officer and finds
that no prejudicial error was committed. The rulings are hereby
affirmed. The Board has considered the hearing officer's report, Inter-
venor Upholsterers' exceptions and brief, and the entire record in the
case, and hereby overrules Intervenor Upholsterers' Objection 3 for
the following reasons :
Objection 3
Intervenor Upholsterers alleges in substance that shortly before the
polls opened on the^day of the election, Hester Humphrey, plant super-
intendent, instructed employees Ted Hall, Ernest Hunt, Clyde Mc-
Cullough, and Arthur Smith to vote for Intervenor Machinists and
notified them that in the event they voted for Intervenor Machinists,
they could still work for the Employer, but if they did not vote for
Intervenor Machinists they would "not be working for Burkart very
long."
Witnesses Hall, Hunt, McCullough, and Smith, all of whom were
participants in the preelection campaign on behalf of Intervenor
Upholsters and some of whom are officials of that Union, testified that
on the day of the election Superintendent Humphrey in effect stated to
Hall in their presence that they should vote for Intervenor Machinists
if they wished to retain their jobs. Superintendent Humphrey cate-
gorically denied making this statement. Based upon his observation
of the demeanor of the witnesses and the record as a whole, the hearing
F. BURKART MANUFACTURING COMPANY 1051
officer discredited the testimony of Hall, Hunt, McCullough, and
Smith and credited Humphrey's testimony with regard to this issue.
We see no reason in the record for disturbing this credibility resolu-
tion of the e-liearing officer and therefore we adopt it. Accordingly, we
find, as did the hearing officer, that Superintendent Humphrey did not
make the alleged statement and that there is no merit to Intervenor
Upholsterers' Objection 3.
Intervenor Upholsterers submitted a brief in which it urges that
consistency with the Board's recent decision in the Western Electric
Company case,2 issued after the Decision and Direction of Election
herein, requires dismissal of the petition filed in this case and it also
requests oral argument.3 In its original decision the Board found that
a supplemental agreement executed on October 13, 1950, by the Em-
ployer and Intervenor Upholsterers constituted a premature extension
of the 1950 contract previously entered into by the parties, and the con-
tract as extended was not a bar to a rival petition seasonably filed before
the automatic renewal date of the original contract. In Western
Electric the Board enunciated the rule that whether or not an exclu-
sive bargaining contract contains a provision for modification, and
regardless of the scope of such a modification provision if provided
for in the contract, the parties may renegotiate or modify any of the
provisions of the contract during its term, if done by mutual assent,
without "opening up" the contract to an otherwise prematurely filed
petition. At the same time, however, the Board reaffirmed its rule that
when a contract is prematurely extended a petition timely filed with
respect to the automatic renewal date of the original contract will not
be barred by the extended contract' As the petition herein was sea-
sonably filed before the automatic renewal date of the original con-
tract, we find no basis for reversing our holding with respect to this
issue.
As we have overruled Intervenor Upholsterers' objections, and as
it appears from the tally of ballots that none of the three choices
received a majority of the valid ballots cast, we shall provide for the
conduct of a runoff election in order to resolve the question concerning
representation, and shall remand this case to the Regional Director.
The ballot in the runoff election shall provide for a selection between
International Union, United Automobile, Aircraft & Agricultural
Implement Workers of America, CIO, and International Association
of Machinists, the two choices which received the largest and second
largest number of votes in the election conducted on April 26, 1951.
2 94 NLRB 54
3 Intervenor Upholsterers ' request for oral argument is hereby denied because the record,
exceptions , and brief , in our opinion , adequately present the issues and the positions of the
parties.
4 Bell Telephone Laboratories, Inc, 94 NLRB 1559.
1052 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Order
IT IS HEREBY ORDERED that the case be, and it hereby is, remanded to
the Regional Director for the Fourteenth Region, who shall proceed
in accordance with Sections 102.61 and 102.62 of the Rules and Regu-
lations of the Board, Series 6.
MEMBERS HOUSTON and STYLES took no part in the consideration of
the above Supplemental Decision and Order.
TWENTIETH CENTURY-FOX FILM CORPORATION,1 and LOCAL H-63,
MOTION PICTURE HOME OFFICE EMPLOYES UNION, INTERNATIONAL
ALLIANCE OF THEATRICAL STAGE EMPLOYES AND MOVING PICTURE
MACHINE OPERATORS OF THE UNITED STATES AND CANADA, AFL,2
PETITIONER
TWENTIETH CENTURY-FOX FILM CORPORATION; TWENTIETH CENTURY-
Fox FILM CORPORATION AND MOVIETONEWS, INC.,3 AND TWENTIETH
CENTURY-FOX INTERNATIONAL CORPORATION 4 and DISTRICT 66, DIS-
TRIBUTIVE, PROCESSING AND OFFICE WORKERS OF AMERICA,5 PETI-
TIONER. Cases Nos. 2-R (,1,L3445, 2-RC-3545, 2-RC-3546, and
0-RC-3547. October 04,1951
Decision , Order, and Direction of Elections
Upon separate petitions 6 duly filed under Section 9 (c) of the Na-
tional Labor Relations Act, consolidated 7 hearings were held before
Lewis Moore and George Turitz, hearing officers. The hearing offi-
cers' rulings made at the hearings are free from prejudical error and
are hereby affirmed .s
3 Herein referred to as the Film Corporation.
2 Herein referred to as Local H-63.
8 Herein referred to as Film Corporation -Movietonews.
4 The name of the Employer , herein referred to as Fox-International , is amended to con-
form to the record.
" Herein referred to as District 65.
a Local 20, Screen Employees Guild, United Office and Professional Workers of America,
herein referred to as Local 20, appeared jointly with District 65 but did not sign the
petitions.
4 The captioned cases were consolidated for hearing by order of the Regional Director
dated May 24, 1951.
8 After the close of the hearings , District 65 requested permission to withdraw its peti-
tion in Cases Nos. 2-RC-3545, 2-RC-3546, and 2-RC-3547. Local H-63, the Intervenor
in these proceedings , opposed the request and in addition made a showing of interest ade-
quate for a petitioner among the employees involved in Cases Nos . 2-RC-3546 and 2-RC-
3547. Because Local H-63 desires and is presently entitled to elections in Cases Nos.
2-RC-3546 and 2-RC-3547, we find that, under the circumstances , the requested with-
drawal of the petitions in these proceedings would be prejudicial to Local H -63. Accord-
ingly, the request insofar as it affects those two proceedings is hereby denied. However,
96 NLRB No. 155.