Charles E. Hires Co.

National Labor Relations Board - Board Decisions

Sep 9, 1949

85 N.L.R.B. 1208 (N.L.R.B. 1949)

In the Matter of CHARLES E. HIRES CO., NEW YORK ELECTRIC WATER
COOLER DIVISION, EMPLOYER and LOCAL 638, METAL TRADES
BRANCH, U. A., PLUMBING & PIPE FITTING INDUSTRY, AFL, PETI-
TIONER
Case No. 2-RC-1132.-Decided September 9, 1919
DECISION
AND
DIRECTION OF ELECTION
Upon a petition duly filed, a hearing was held before Warren H.
Leland, 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 [Members Houston, Reynolds, and
Murdock].
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 Petitioner and the Intervenor are labor organizations claim-
ing to represent employees of the Employer.
3. The instant petition was filed on May 18, 1949. The Intervenor
urges as a bar to this proceeding its contract with the Employer exe-
cuted on May 7, 1948, which provides that it shall be effective from
April 1, 1948, to March 31, 1950. Prior to its execution, a consent
election was conducted on April 26, 1948, and the Intervenor was
thereby authorized to execute a union-security provision.
The contract provides in pertinent part as follows :
Article 1-Effective upon the Union's attainment of a majority
vote in a secret election for Union shop conducted by the Na-
tional Labor Relations Board (to which election the Company
I The Intervenor, Soft Drink Workers Union Local 812, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of America, AFL, was allowed to inter-
vene on the basis of its present contract with the Employer.
The Intervenor's request for oral argument is hereby denied, as the facts and issues in
the case are adequately presented in the record and the Petitioner's brief.
85 N. L. R. B., No. 205.
1208
CHARLES E. HIRES Co. 1209
shall agree by stipulation) the Company will employ for the job
categories covered hereby, only such employees as are members
in good standing of the Union. In the event of the suspension,
expulsion, or resignation from the Union of any of its members
employed by the Company during the period of this Agreement,
the Company upon written notice from the Union of such suspen-
sion, expulsion or resignation, will immediately replace the em-
ployee who has been so suspended, or expelled, or who has
resigned, by a member of the Union in good standing, provided
such suspension, expulsion, or resignation is due to the failure of
the employee to pay such financial obligations to the Union as are
uniformly required of all members. In all such cases, notice by
the Union to the Company shall be conclusive proof of the due
suspension, expulsion, or resignation of the Union member and
the regularity thereof shall not be subject to question by the
Company, responsibility therefor being assumed by the Union.
Article s-The Union promises to furnish the Firm with all
help that the Firm may apply for to it during the term of this
agreement and that its members will perform their work in a
good and faithful manner so long as such members are ready,
willing and able to do so. All employees newly hired shall be
considered on a trial period for thirty (30) days. If at the end
of the 30-clay trial period, the employee is considered satisfactory
and is continued in the employ of the Firm, he shall thereupon
join the Union, and the Union agrees to accept him as a member.
During the trial period, the Firm may discharge any employee
without assignable cause.
The clear effect of these provisions of the contract is to require that
the .Employer give preferential treatment in the hiring of employees
to individuals who are members of the Intervenor. These provisions
go beyond the limited form of union-security agreement permitted by
Section 8 (a) (3) of the amended Act, and are thus illegal without
regard to whether their execution was authorized by an election con-
ducted under Section 9 (e) of the Act.' However, the Intervenor con-
tends that the only union membership provision which has been
enforced is the one requiring newly hired employees to join the Union
after a 30-day trial period. We have held, nevertheless, that the mere
existence of provisions not sanctioned by the Act, such as the above,
acts as a restraint upon those desiring to refrain from union activities
2 Continental Bus System, Inc., 84 N. L. R. B. 670; Morley Manufacturing Company,
83 N. L. R. B. 404; American Export Lines, Inc., 81 N. L. R. B. 1370.
1210 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
within the meaning of Section 7 of the Act.3 Accordingly, regardless
of any other considerations, the contract in question cannot operate
to bar a present determination of representatives.'
4. The following employees of the Employer constitute a unit
appropriate for the purposes of collective bargaining within the mean-
ing of Section 9 (b) of the Act :
All servicemen, mechanics, delivery installers, delivery helpers, and
stock clerks in the Electric Water Cooler Department, but excluding
all production and maintenance employees, route salemen, route
drivers and helpers employed in the Bottling Division, and clericals,
guards, watchmen, and professional employees and supervisors as
defined in the Act.5
DIRECTION OF ELECTION
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, among the employees 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 vacation or
temporarily laid off, but excluding those employees who have since
quit or been discharged for cause and have not been rehired or rein-
stated prior to the date of the election, and also excluding employees
on strike who are not entitled to reinstatement, to determine whether
they desire to be represented, for purposes of collective bargaining,
by Local 638, Metal Trades Branch, U. A., Plumbing & Pipe Fitting'
Industry, AFL, or by Soft Drink Workers Union Local 812, Inter-
national Brotherhood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, AFL, or by neither.
3 Matter of C. Hager & Sons Hinge Manufacturing Company , 80 N. L . It. B. 163 ; Matter
of Lykens Hosiery Mills, Inc., 82 N. L. It. B. 981; Matter of Clayton and Lambert Manu-
facturing Company, 83 N. L. R. B. 458.
4 The Petitioner contends that an additional reason for holding the contract no bar is
that the Intervenor is no longer a functioning bargaining agent at the Employer's plant.
In view of the disposition made herein , we need not resolve this question.
5 This unit was stipulated to by all parties.