The M. B. Farrin Lumber Co.

National Labor Relations Board - Board Decisions

Mar 12, 1957

117 N.L.R.B. 575 (N.L.R.B. 1957)

THE M. B . FARRIN LUMBER CO. 575
The M. B. Farrin Lumber Co. and Local Union No. 156, Uphol-
sterers' International Union of North America , AFL-CIO, Peti-
tioner. Case No. 9-RC-2913. March,1 2, 1957
DECISION AND DIRECTION OF ELECTION
Upon a petition duly filed under Section 9 (c) of the National
Labor Relations Act, a hearing was held before Thomas M. Sheeran,
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 this case, 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. The Employer and Intervenor Mine Workers request dismissal
of the petition on the ground of contract bar. On October 15, 1955,
the Employer, as named in this proceeding, and the Mine Workers
entered into a collective-bargaining agreement which, by its terms, was
to remain in effect until October 15, 1956. In support of the contract-
bar contention, the record contains evidence showing that about No-
vember 18, 1955, the D. B. Frampton Company acquired all of the Em-
ployer's outstanding corporate stock and that on January 20, 1956,
the Employer and the Mine Workers executed a new collective-bar-
gaining contract with a termination date of October 15, 1957. The
assertion is made that either the identity of the Employer was changed
because of the stock purchase and therefore the 1955 contract is irrele-
vant to this proceeding or that the Board's premature extension doc-
trine does not apply in this case because the petition was not timely
filed with respect to a purported automatic renewal date in the 1955
contract.
The change in stock ownership resulted in new management for the
Employer; 2 however, there has been little if any change among the
rank-and-file employees, and the Employer has continued the same
type of lumber business operations. We do not agree that such change
1 Intervenor Local Union 287, United Construction Workers, Division of District 50,
affiliated with the United Mine Workers of America, has questioned the sufficiency of the
Petitioner's showing of interest Showing of interest Is a matter for administrative
determination , and we are administratively satisfied that the _ Petitioner has sufficient
showing among the Employer 's emnlovees
The Mine Workers moved to intervene on the basis of it contractual interest in the em-
ployees sought by the Petitioner . The Petitioner and Intervenor United Brotherhood of
Carpenters & Joiners of America , AFL-CIO, contend the Mine Workers ' contract is invalid
and cannot serve as a basis for intervention in this proceeding and also claim that the
Mine Workers' noncompliance with the filing requirements of Section 9 (f), (g), and (h)
of the Act is ground for denying intervention We find the Aline Workers ' contract Is
sufficient basis for its intervention in this proceeding , but In view of the Aline Workers'
noncompliance status we shall not place it on the ballot in the election directed herein.
Congoleunt - Nairn , Inc, 115 NLRB 1202
'We note that one of Employer 's two signatories to the October 1955 contract , executed
before the stock transfer , was "Robert Henderson" and 1 of the Employer 's 2 signers of
the January 1956 agreement , signed after the stock sale, was "R W Henderson " The
117 NLRB No. 91.
576 DECISIONS 'OT NATIONAL LABOR RELATIONS BOARD
in the internal structure of the managerial hierarchy brought into
,existence a new and separate company. The stock sale had no mani-
fest effect upon the legal identity or responsibility of the corporate em-
ployer. The stock transfer merely had the same effect as any change
in corporate control resulting from a stranger's or minority stock-
holder's acquisition of the majority of a corporation's stock. It is
also significant that there was no change in the composition of the con-
tract unit of employees or in the operations of the Company. We ac-
cordingly find that, for the purposes of this proceeding, the Employer
in January 1956 was identical to the one that signed the October 1955
contract.3 It thus becomes necessary to consider the alternative issue
raised by the Employer and the Mine Workers-the timeliness of the
petition in relation to the 1955 contract.
As indicated above, the Employer and the Mine Workers, in their
alternative contention, claim that the 1955 agreement was, by its terms,
automatically renewed for a further fixed period because neither of
the parties gave notice at least 60 days before October 15, 1956, to
change or amend the agreement. They argue that the petition in
this case was not timely filed because it was filed on September 26,
1956, less than 60 days before October 15. However, we do not read
the 1955 contract as providing for automatic fixed period renewal.
The 1955 contract contains the following clause:
ARTICLE XI
This AGREEMENT shall be and remain in effect from the
1&/i day of October, 1955, to and including the 15th day of Octo-
ber, 1956.
In the event that either party desires to change or amend this
agreement at the time of its termination, written notice shall be
given to the other party sixty (60) days before the date of expira-
tion, and negotiations shall be started within ten (10) days of'the
date or (sic) receipt of said notice.
The only express termination or expiration date appearing on the
face of the contract is October 15, 1956. However, we recognize a
certain ambiguity in the second paragraph of article XI. Reading
the 2 sections together, we hold that at most the intention of the
parties to the contract may have been that either party, by giving 60
claws' notice of desire "to change or amend" could continue the terms
of the contract in effect until an indefinite date in the future. In the
record does not disclose whether the "Henderson " on the respective documents was the
same individual , but some doubt is cast upon the completeness of the change , in the Em-
plover's management
3 Inapposite therefore are those Board decisions holding that a collective -bargaining
contract between a union and a fownter owner of a business does not bind a 'purchaser
when the latter did not participate in the execution of the agreement See, Poi example,
Jolty Giant Lumber Co, 114 NLRB 413 Compaie also L B Spear and Company, 106
NLRB 057, wherein the contract of one company was held not to be a bar after the sale
of its stock and corporate entity because there followed a complete merger and integra-
tion of the personnel and operations of two separate corporations , resulting in a new,
appropiiate grouping of employees
THE M.' B. FARRIN LUMBER CO. 577
absence of any further fixed period established in the contract itself
or of any subsequent fixed expiration date, we can only conclude that
at best the agreement as a whole provided for its continuance for an
indefinite period after October 15, 1956 4 As such, following a con-
tract for a fixed term, it could not constitute a bar.' Furthermore, as
the January 1956 agreement extended the expiration date of the
existing 1955 contract it constituted a premature extension agree-
ment and could not operate as a bar to the petition timely filed with
respect to the expiration date of the 1955 contracts
-We find therefore that a question affecting conunerce exists con-
cerning 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. All parties agree that a production and maintenance unit of the
.Employer's employees is appropriate. They disagree, however, on
the unit placement of salaried inspectors. The Carpenters, contrary
to the other parties, would include the salaried inspectors in the unit.
The salaried inspectors inspect and grade lumber. They are hired
especially for their jobs from outside the plant and do not interchange
,with other employees. A minimum of 5 months education in a special
,school for lumber inspecting is desirable but is not required by the
Employer, and the inspectors possess a skill different from those of
the other employees. They are, as their job title denotes, salaried anll
,have a vacation plan different from that of the hourly paid-production
employees. On the other hand the salaried inspectors do physical
work; they use a measuring tool and mark and physically handle
lumber. They exercise no supervisory functions. It appears that
the salaried inspectors possess a distinctive skill and have some job
characteristics different from those of the Employer's general produc-
tion and maintenance employees. However, such minor distinctive-
ness does not suffice to set the inspectors apart from the production
and maintenance employees. As the salaried inspectors perform ' an
,integrated function in the Employer's production process, as they are
not supervisors, and as there is no persuasive reason for excluding
them, we shall include them in the production and maintenance unit.'
We find,that all production ,and' maintenance-,.employees-,ofthe
Employer at its Cincinnati, Ohio, plant, including salaried inspectors,
but excluding all office and plant clerical employees, professional
employees, guards, and supervisors as defined in the Act, constitute a
'The hearing officer rejected the Employei's offer to prove by oral testimony that in
earlier years the Employer and the Aline Workers, had construed . conttacts containing
clauses ', similar to article XI of the 1955 contract as providing , for automatic renewal
In view of our consideration of the clause as one providing for indefinite extension of
the 1955 agreement-the most favorable interpretation for the Employer that can be
ascribed to that agreement-we find that the heal mg officer 's ruling was not prejudicial
New Jer.scij Porcelain Company, 110 NLRB 790
e Congoleu in-Nau-n. Inc , supra
71, eneen Pioduct4, Inc .81 NLRP. 492
4 2 5 7 54-5 7-vnl 11 i 28
578 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
unit appropriate for the purposes of collective bargaining within the
meaning of Section 9 (b) of the Act.
[Text of Direction of Election omitted from publication.]
MEMBER BEAN took no part in the consideration of the above Deci-
sion and Direction of Election.
Paul M. O'Neill International Detective Agency, Inc. and New
Jersey Guards Union , Petitioner. Case No. 2-RC-8588. March
19, 1957
DECISION AND DIRECTION OF ELECTION
Upon a petition duly filed under Section 9 (c) of the National Labor
Relations Act, a hearing was held before Leonard J. Lurie, hearing
officer. 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-member panel [Chairman Leedom and Members
Murdock and Bean].
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. The labor organizations named below claim to represent certain
employees of the Employer.'
3. A question affecting commerce exists concerning the representa-
tion of certain employees of the Employer, within the meaning of
Section 9 (c) '(1) and Section 2 (6) and (7) of the Act 2
1 The Independent Guards Union was permitted to intervene on the basis of a current
contractual interest in the employees Petitioner seeks to represent . Contrary to Peti-
'tioner's contentions , Intervenor is a labor organization within the meaning of Section 2
(5) of the Act as it was formed for the purpose of representing employees and negoti-
ating .with the Employer regarding wages and working conditions . Burroughs Corpora-
tion , 116 NLRB 1118.
2 Petitioner contends that the contract which is currently in effect between the Em-
ployer and Intervenor and which contains a union -security provision does not bar this
proceeding because Intervenor first achieved compliance with the filing requirements of
the Act on December 26, 1956 , after both the execution of the contract and the filing of
the petition . The Employer offered to prove that on November 21, 1956, 2 days before
the execution of the contract, Intervenor 's officers executed the required forms for com-
pliance, that Intervenor 's secretary failed to file these documents with the Board and
Department of Labor through an excusable ignorance of the technical requirements of the
filing provisions of the Act , and that Intervenor believed itself in compliance with the Act
when the contract was executed and on November 27, 1956, the day the petition was filed.
The Employer argues that Intervenor having thus indicated its intention to comply with
the Act, the contract should be held a bar under the rule announced in Dichello, Incorpo-
rated, 107 NLRB 1642 . In that case , although the intervenor actually achieved compli-
ance only after the contract was executed and the petition filed, the intervenor be-
fore executing the contract filed with the Board the required non-Communist affidavits
and a certificate of intent to remain in compliance with Section 9 (f) and (g) of the
117 NLRB No. 97.