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tion of election upon the status of the existing contract (Board Member Reynolds dissenting). The majority opinion said:
Generally, in cases of this nature the Board has not attempted to rule upon the validity or invalidity of the current contract. It has decided only that the employees should be permitted to determine through an election the identity of the labor organization which they desire to have represent them. In several cases, *however, it has held that the election would be for the restrictive purpose of determining the representative to administer the current contract. We need not now decide whether the representative to be certified herein must assume the existing contract. To the extent these cases purport to decide that question and are inconsistent with our decision and direction of election herein, they are hereby overruled.
Board Member Reynolds, in his dissent on this point, said that "in the interest of maintaining stable labor relations, neither the employer nor the employees should be enabled by virtue of a proceeding before this Board to discard unilaterally any obligations incurred as a result of their collective bargaining agreement.”
In the Sun Shipbuilding decision,33 the Board reaffirmed the rule of the Brenizer Trucking case that it would not undertake to determine the legality of any action of disaffiliation under the law or the constitution of the labor organization involved.
However, the Board will not direct an election in every case where the organization or composition of the contracting union has changed during the life of the contract. The fact that the contracting union 34 or its parent organization 35 has changed its affiliation, that the parent organization has absorbed other locals not representing the employer's employees,36 or that an organizational change in the contracting union is contemplated, 37 does not create sufficient doubt as to the identity of the contracting union to remove the contract as a bar. Nor does a vote by some members of the local to select a new bargaining representative create a doubt as to the identity of the bargaining representative sufficient to remove the contract as a bar where the international is the contracting certified union.38 And where the contracting union was not defunct, but was presently functioning as a labor organization on behalf of other employees of various employers in the area, and was willing and able to represent the employees in the unit involved, the Board declined to direct an election in a unit all of whose members had repudiated the contracting union.39
32 Harbison-Walker Refractories Company, 43 NLRB 1349; The Register and Tribune Company, 60 NLRB 360, cases cited.
** Sun Shipbuilding and Dry Dock Co., 86 NLRB 20.
35 Michigan Bell Telephone Company, 85 NLRB 303; West End Chemical Company, 89 NLRB No. 86 (expulsion).
38 Michigan Bell Telephone Company, supra.
37 Michigan Bell Telephone Company, supra (amalgamation of contracting unions after expiration of contract).
38 Hudson Transit Lines, Inc., 86 NLRB 120.
The Board also ruled that a contract with an amalgamated local, affiliated with an international expelled from its parent federation, barred petition by another international union affiliated with the same parent federation. Although the contracting local's shop committee and steward at the employer's plant had engaged in activity on behalf of the petitioner, the employees had never formally rejected the contracting local's vote against disaffiliation from its international after the international's expulsion, and it did not appear that the contracting local was defunct.“ A representation petition was likewise held barred by a contract providing that it might inure to the benefit of the successors and assigns of the contracting local under these circumstances : following a special meeting of the members of the contracting local, a new local was established to which a substantial majority of the membership of the contracting local transferred their allegiance, the contract was assigned by the contracting local to the new local, and the employer thereafter recognized the new local rather than the contracting local. It was held immaterial that a faction of the original local later sought to repudiate the contract assignment and to reestablish the original local, and that the local and its international participated in court action for a declaration of its right to union dues, and the local intervened in the Board proceeding claiming a representative interest.“ Where a contract covering a plant-wide unit is not operative as a bar because of a schism in the
An amalgamated local is a local admitting to membership employees of more than one employer.
• Telea, Inc., 90 NLRB No. 43. Citing Pacific Gamble-Robinson Company, supra, the Board distinguished J. J. Tourek Manufacturing Co., 90 NLRB No. 4, where the “schism" doctrine was applied to a contract with an amalgamated local. In the Tourek case, the members of the contracting local at the plant involved had held their own meeting and voted for disaffiliation ; the employees at that plant had been given considerable autonomy in the administration of the amalgamated contract; and the amalgamated local was incapable of administering the contract at the plant involved. On August 1, 1950, the Board reversed the regional director's dismissal of a new petition Alled by the petitioner in the Telea case requesting the same unit (Case No. 18–RC-775). Citing the Tourek case, supra, the Board observed that the employees may have taken formal action to disaffiliate from the International of the contracting local and to affiliate with the petitioner before the new petition was filed.
For other cases in which the “schism" doctrine was applied to contracts with amalgamated locals, see Pratt & Letchworth Co., Inc., 89 NLRB No. 23 (disaffiliation of partly autonomous shop); The American Pulley Company, 89 NLRB No. 37 (disaffiliation of sereral shops) ; Signal Manufacturing Company, 89 NLRB No. 65 (disaffiliation of entire local) ; Airtemp Division, Chrysler Corporation, 89 NLRB No. 61 (disaffiliation of entire local) ; United Specialties Company (Mitchell Division), 89 NLRB No. 79 (disaffiliation of single shop).
w The Louisville Railway Company, 90 NLRB No. 115. The majority of the Board consid. ered the case analogous to the cases involving mere changes in the contracting union's affiliation. Member Styles dissented. In his opinion, those cases were not controlling since here the original contracting union had not disappeared. In his view, the fact that four unions (the petitioner, the assignor local, the assignee local, and a local resulting from the affiliation of the assignee local with another international) and a complexity of rival claims were involved in the case indicated confusion in the bargaining relationship and the applicability of the "schism" doctrine.
contracting union, it does not bar a petition for a unit of craftsmen covered by the contract.
4. Change in Bargaining Unit
Another question that arose in connection with the application of the contract-bar rule to a number of cases during the past fiscal year concerned the scope of the bargaining unit covered by the contract. These questions occurred most frequently in situations where a contract was asserted as a bar to an election among employees in a newly established plant or among employees on a new operation.
The Board has ruled generally that a contract covering a discontinued plant will not extend as a bar to an election at a new plant established a considerable distance from the discontinued plant and employing a full new staff of personnel.“
In one case, however, an employer closed one plant and established a new and expanded plant 22 miles away. Finding that (1) a majority of the employees at the new plant were formerly employed at the old, (2) the same supervisory and management personnel was being employed, and (3) production processes and products at the new plant were substantially the same, the Board held that a contract covering employees at the old plant was a bar to an election among employees at the new plant. Although the employer had formally discharged the employees of the old plant before hiring them at the new one, the Board found that the new plant was “essentially nothing more than the [old] operation transferred to a new location.” In the same case, the Board held that the expansion of the work force by approximately 50 percent did not destroy the contract as a bar.
In another case, where one department of a plant was expanded into a new plant, the Board held the contract covering the original plant was no bar. In that case, the Board found that the expansion was tantamount to a new operation because (1) it required removal to a new site 9 miles from the old plant; (2) a relatively minor proportion of employees at the new location was transferred from the old plant; (3) the new plant had its own managerial hierarchy; and (4) there was only brief and intermittent exchange, on a loan basis, of employees and equipment between the two plants.
Nor was a clause providing that the contract would extend to any shop presently or thereafter owned or controlled by the employer
· Pratt & Letchworth Company, Inc., 89 NLRB No. 23. Board Member Reynolds dissented on the ground stated by him in Boston Machine Works Company, 89 NLRB No. 17.
Sylvania Electric Products, Inc., 87 NLRB 597; Clarostat Manufacturing Co., 88 NLRB No. 141.
" Yale Rubber Manufacturing Co., 85 NLRB 131.
sufficient to make the contract a bar to an election in a new plant staffed by new personnel, when it appeared that the contracting parties did not themselves consider the new plant covered until the petition for election was filed.47
5. Duration of Contracts
Originally, in applying the “reasonable period” yardstick, the Board declined to recognize a contract as a bar to an election for more than 1 year except under unusual circumstances or unless contracts for longer periods were customary in the particular industry.48 More recently, as collective bargaining relationships began to stabilize, the Board has adopted the 2-year term as its standard for a reasonable period.49 In laying down this policy, the Board said:
We think the time has come when stability of industrial relations can be better served, without unreasonably restricting employees in their right to change representatives, by refusing to interfere with bargaining relations secured by collective agreements of 2 years' duration."
During the past fiscal year it has reaffirmed this policy, holding that no contract will operate as a bar for more than 2 years unless there is evidence that longer contracts are customary in the industry involved.si
Under this rule, the Board generally recognizes a contract of longer than 2 years' duration as a bar to an election during the first 2 years. Thus contracts of indefinite duration constitute a bar during the first 2 years but not thereafter.52 The same rule applies to contracts of unreasonable duration.53 Contracts found by the Board during the past fiscal year to be of unreasonable duration included a 6-year contract in the baking industry, a 4-year contract in the construction industry, and 3-year contracts in the building materials and the retail baking industries. In the case of a contract running more than 2 years, the party urging it as a bar has the task of rebutting the presumption that its duration is an unreasonable curtailment of the employees' right to change representatives. The Board has held that this presumption may be overcome by a showing that contracts of more than 2 years are customary in the industry involved.
A contract which is terminable at the will of the parties, on the other hand, is not a bar at any time. In this category was a contract
47 Sani-Aqua Shower Curtains, Inc., 88 NLRB No. 218.
64 Rheinstein Construction Co., Inc., 88 NLRB No. 16; Paraffine Companies, supra; Cushman's Sons, Inc., 88 NLRB No. 49.
65 Container Corp. of America, 87 NLRB 1345.
for an 18-month term which could be terminated by either party upon 40 days' notice.56 The Board held also that a contract containing a wage reopening clause which gave the union the right to cancel the contract if no wage agreement were reached within 60 days after reopening, was tantamount to a contract terminable at will and therefore did not bar a petition filed 3 days after execution of the contract. 57
An expired contract, or one which is about to expire, does not constitute a bar to a new selection of representatives by the employees.58 Similarly, an abandoned contract does not bar a petition.69
6. Reopening Clauses
A contract containing a clause providing for reopening with respect to specified matters also will bar a representation petition. Reopening of the contract or the execution of an amendment pursuant to such a clause will not remove the contract as a bar, provided the negotiations or amendment do not go beyond the scope of the clause. Also, the clause must not be so broad as to make the contract actually terminable at will.
The Board has held that this principle applies even when negotiations during the contract term concern wage increases, severance pay, a pension plan, and group insurance, if those subjects properly come within scope of the reopening clause. It also held a contract still a bar where it had been reopened under a wage modification provision and negotiations had resulted in adoption of a profit-sharing plan.si But when the negotiations or amendment pertain to subjects outside the scope
of the reopening provisions, the Board has held, the contract is removed as a bar. 62
In two cases, the Board found that the reopening clauses were so broad as to make the contracts terminable at will. In one such case, , a wage reopening clause gave the union the right to cancel the contract if no wage agreement were reached in 60 days.63 In the other, the clause reserved to the parties the right to modify the contract at any time.64
** The Broderick Co. (Header-Press Division), 85 NLRB 708. 67 Container Corp. of America, supra.
89 Scranton Battery Corporation, 89 NLRB No. 85 ; Westinghouse Electric Corporation, 89 NLRB No. 11.
50 Standard Bag Company, 87 NLRB 300; Northern Redwood Lumber Company, 88 NLRB No. 32; W. & W. Pickle & Canning Company, 85 NLRB 262; Farm Tools, Inc., 88 NLRB No. 124.
80 West End Chemical Co., 89 NLRB No. 86.
61 Lake Shore Manufacturing Corp., Case No. 8-RC-858 (unpublished, decided June 6, 1950).
62 Gay Games, Inc., 88 NLRB No. 66; Himes Brothers Dairy Co., 89 NLRB No. 71. 63 Container Corp. of America, 87 NLRB 1345. * Sterling Tool & Mfg. Co., 89 NLRB No. 9.