페이지 이미지
PDF
ePub

7. The 10-Day Rule A claim for recognition as majority representative of the employees involved also may forestall a contract as a bar under certain conditions. Under the rule commonly known as the General Electric X-Ray or 10-day rule,85 a bare, unsupported claim for recognition will forestall contract bar only if a petition for an election is filed within the 10-day period by the candidate bargaining representative making the claim. The 10 days begin with the employer's receipt of the claim, not the date of mailing. This rule applies to any contract executed or renewed after the claim was made. During the 1950 fiscal year, the Board applied this rule in a number of cases by dismissing the election petition on grounds of contract bar, where the petitioner did not file until more than 10 days after making its claim and the employer and a rival union had executed or renewed a contract in the meantime. But if a petition filed within the 10 days is withdrawn for the purpose of filing a new petition, the new petition must be filed within the 10-day period dating from the original claim of recognition.68

The 10-day rule, however, does not apply where the petitioner's claim of majority representation is not merely a bare claim but has a substantial basis. Thus the Board has declined to apply the rule where the petitioner was an active incumbent bargaining representative and the employer made a contract with a rival union.co Nor did the rule apply to the petition of an incumbent representative in a case where an employer, on the basis of a schism in the ranks of the incumbent, made a contract with the rival union. Citing these precedents, the Board held in a case decided this fiscal year that the rule did not foreclose a petition filed nearly 6 months after the claim of majority by a union which the employer had recognized in negotiations over terms of a proposed contract." The Board, in that decision, made this statement of the general rule: "where

the claim of majority was not a mere naked one but was substantial and had a recognizable foundation, we have not applied the 10-day rule.”

8. Renewal of Contracts

When two or more labor organizations are competing for the right to represent a group of employees, the Board frequently is confronted also with the question of the proper time for filing of a petition for a

* 67 NLRB 997 (1946). 46 Himes Brothers Dairy, 89 NLRB No. 71 ; Shopwell Foods, Inc., 87 NLRB 1112. 07 E. g. U. 8. Time Corporation, 86 NLRB 724; Brink's Ino., 89 NLRB No. 150. a Brink's, Inc., supra. “ Acme Breroing Co., 72 NLRB 1005. To McLeod Veneer Co., 73 NLRB 859.

Chicago Bridge & Iron Co., 88 NLRB No. 78. (Opinion contains discussion of cases cited above.)

determination of bargaining representative. This problem is often complicated by the fact that one of the labor organizations has a current contract with the employer.

The rule is that ordinarily an election petition may be filed before a contract has been executed or renewed, or shortly before a current contract expires, or after it has expired. Also, in general, notice to terminate or modify a contract, after the first certification year, removes the contract as a bar to an election," and the filing of a petition forestalls any contract or renewal executed during pendency of the petition from operating as a bar. A contracting union, however, may file a petition without terminating its existing contract."

Exceptions to this rule involve the first year after certification of a bargaining representative by the Board and, in certain cases, contracts containing automatic renewal or reopening clauses. These exceptions are discussed elsewhere in this chapter.

For the purpose of determining whether a petition is barred by a contract renewal, the petition will be considered filed on the day it is docketed by the Board's regional or subregional office receiving it.75

Once notice of modification or termination has been given or negotiations for a new contract have begun, the original contract cannot be restored as a bar by any agreement to continue its terms. Thus the Board held that a memorandum to continue the original contract until "such time as current negotiations are either concluded or broken off by either party" converted the original contract into a contract terminable at will and, therefore, no bar.?? Nor was it any bar, although a strike intervened, when the parties orally agreed to continue the contract in effect pending future negotiations.78 Nor was a rival petition barred by the execution of an agreement to reinstate the original contract after a rival claim for recognition was made, where the rival claim was followed by timely filing of a petition after the “reinstatement” agreement was executed."

The Board has indicated that it will not construe an ambiguous request“for a new contract” as opening the contract to an election, where negotiations are limited to the scope of the contract’s reopening clause and no intent actually to make a new contract is shown.80

" Reaffirming: Pittsburgh Plate Glass 00., 90 NLRB No. 60 ; Standard Paper Manufacturing Co., 90 NLRB No. 61 ; Internat Har ster Co., 88 NLRB No. 134 ; John Oster Vanufacturing Co., 86 NLRB 147.

** Reafirming: Forney Engineering Co., 88 NLRB No. 67 ; Bunker Hill and Sullivan Mining and Concentrating Co., 89 NLRB No. 8.

** Lone Star Producing Co., 85 NLRB 192. " Hickey Cab Co., 88 NLRB No. 84.

Kimsej ufo. Co., 87 NLRB 651.
17 Springfield Mill Co., 88 NLRB No. 7.
18 Castle & Cooke Terminals, Ltd., 88 NLRB No. 74.

Himes Brothers Dairy Co., 89 NLRB No. 71.
The Racquette River Paper Co., 85 NLRB 836.

A contract executed in the face of a rival petition may also be inoperative as a bar to subsequent petitions. Thus a contract executed after the timely filing of a decertification petition does not bar a subsequent certification petition. Nor does a contract executed after the filing of an original petition bar the filing of an amended petition which makes no substantial change in the claim of representation, or which merely adds other employees in the same craft as those sought in the original petition.82

Another question commonly raised by the filing of a petition in a situation where a collective bargaining agreement nears expiration is: How early may a petition be filed! In a number of cases decided during the past fiscal year, the Board has held that a petition may be timely filed 2 months or more before the expiration or automatic renewal date. However, the case is somewhat different with a contract containing an automatic-renewal clause, because the date of automatic renewal is the touchstone rather than the contract's anniversary date.

9. Premature Extension

In order to assure employees the right to challenge the representative status of an incumbent bargaining agent at “predictable and reasonable intervals,” the Board has long followed the doctrine that where a contract is prematurely extended before its expiration, the extended contract will not constitute a bar to a petition timely filed before the expiration date of the original contract. 84

This doctrine of premature extension applies even though the extension was made in good faith and there was a lapse of as much as 7 months between the execution of the extension and the filing of the rival petition. It also applies where the employees ratified the extension agreement and received substantial benefits under it.86 Nor does the fact that the extension was negotiated in the course of a wage modification permitted by the original contract make it a bar. 87

For the premature extension doctrine to apply, however, the rival representation claim must be made before expiration date of the original contract.88 Otherwise, the extension agreement, if it is for a fixed and reasonable term, becomes the current contract and operates as a bar under the same conditions as a valid current contract.

81 Monroe Co-Operative Oil Company, 86 NLRB 95.

82 Tennessee Copper Company, 88 NLRB No. 258; International Harvester Company, Melrose Plant, 87 NLRB 1101.

83 Rudolph Wurlitzer Co., 88 NLRB No. 188; Sylvania Electric Products, Inc., 89 NLRB No. 52. The Riverside Metal Co. (Keystone Watch Case Division), 88 NLRB No. 204.

86 American Steel Foundries, 85 NLRB 19. 86 American Steel Foundries, supra.

88 Gimbel Brothers, Inc., 87 NLRB 449 ; Radio Corporation of America (Victor Division), 89 NLRB No. 172.

87 American Steel Foundries, supra; Western Electric Co., 87 NLRB 544. 88 Aluminum Corporation of America, 86 NLRB 189.

However, the Board has held that the premature extension doctrine does not apply where the original contract was terminable at will and, therefore, not a bar at the time the agreement purporting to extend it was made. But to qualify, the new agreement, of course, must be for a fixed and reasonable term. This rule also was followed where the original contract had been in effect an unreasonable period.0

10. Automatic Renewal

In the case of contracts which provide for automatic renewal unless notice is given at a stated time, the general rule is that a rival petition must be filed before the automatic renewal date 91 unless renewal has been forestalled by notice. This also applies to decertification petitions. However, under the 10-day rule, the Board will act on a petition filed after the automatic renewal date if the rival representation claim was made before the automatic renewal date and the petition was filed within 10 days after the claim was made.94

A question was raised during the past year as to whether section 8 (d) (1) had created a new statutory "Mill B” date for petition filers to observe by, in effect, requiring the filing of all petitions involving automatic renewal contracts at least 60 days before the contract's anniversary date. The Board ruled that it did not.95 The section provides that, in order to fulfill the duty to bargain, a party who desires to amend or terminate a collective bargaining agreement must serve notice of such intent on the other party 60 days before the expiration date of the agreement. The Board ruled that this provision does not require that a petition be filed 60 days before the anniversary date of the contract in a case where the automatic renewal date occurs less than 60 days before the anniversary date.

In another case, an automatically renewable contract was held no bar where, before the renewal date, the contracting union became defunct and hence was incapable of renewing the contract.98

89 The Broderick Company, 85 NLRB 708.
30 Cushman's Sons, 88 NLRB No. 49 (Chairman Herzog dissenting).

01 Often called the “Mill B" date, taking the name from the case in which the Board first announced the principle that the renewal date would be controlling in determining the timeliness of petitions in relation to automatic-renewal contracts, Mill B, Inc., 40 NLRB 316.

92 Strong Co., 86 NLRB 687; The Heekin Can Co.; 89 NLRB No. 94; Standard Paper Mfg. Co., 90 NLRB No. 61. Petitions before Mill B: The Beattle Mfg. Co., 86 NLRB 694 ; International Harvester Co., 85 NLRB 1260 ; Sangamo Electric Co., 90 NLRB No. 20.

93 The Louisville News Co., 87 NLRB 27. 04 United States Time Corp., 86 NLRB 724. 95 Lockheed Aircraft Corp., 87 NLRB 40; Lone Star Producing Co., 85 NLRB 1137. 9 W. & W. Pickle & Canning Co., 85 NLRB 262,

11. Effect of Waiver and Other Factors

In some cases, a contract bar may be effectively waived. Thus a contract with the petitioning union was held no bar where both parties declined to urge it,07 where all parties waived any right to raise an existing contract as a bar.98 The Board also directed an election when an intervenor dropped its contention that a contract to which it was a party barred a rival petition." In another case, a petition filed by the contracting union itself before the automatic-renewal date was held not to be barred by the failure to give notice to prevent renewal of the contract." A contract made expressly subject to the Board's ruling on the petition involved, and a contract providing that it will cease to be effective as to employees for whom another union is thereafter certified, were both held not to bar an election.?

12. Impact of Prior Determinations

A Board certification of a bargaining representative generally is an absolute bar to a new determination of representatives for 1 year. This long-standing Board policy is reinforced by section 9 (C) (3) of the amended act, which prohibits the holding of a representation election less than 12 months after a prior valid representation election has been held in the same unit.

In order to enable a newly certified union to establish bargaining relations, the Board seeks to assure it a year free of rival claims or decertification proceedings in which to negotiate a contract. Therefore, if litigation over bargaining rights or unfair labor practices intervenes and prevents the certified agent from enjoying such a year immediately after certification, it is entitled to a year after termination of the litigation. This year runs from the effective date of the final court decree.

Nor does the bargaining agent lose the protection of its certification during this year by the execution of a contract or by a renewal. Thus the Board dismissed a representation petition filed during the certification year even though it was timely in relation to the terms of a contract which the bargaining agent had obtained. In that decision, the Board said:

07 Great Lakes Pipe Line Company, 88 NLRB No. 225.
28 Ohio Bell Telephone Co., 87 NLRB 1555.
» National Broadcasting Co., 89 NLRB No. 165.
1 Lone Star Producing Co., 85 NLRB 1137.

? Gabriel Steel Company, 88 NLRB No. 54; Potash Company of America, 88 NLRB No. 73.

: Semi-Steel Castings Co., 88 NLRB No. 128. Cooperative Industries, Inc., 85 NLRB 1258.

« 이전계속 »