Fein's Tin Can Co., Inc.

National Labor Relations Board - Board Decisions

May 16, 1952

99 N.L.R.B. 158 (N.L.R.B. 1952)

158 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
contractual provisions which do so in clear and unmistakable lan-
guage.7 Assuming, as mentioned above, that the Intervenor's agree-
ment with the Employer is terminable upon the certification of
another representative, we find nothing in the words "and continues
to be" which would justify a construction of the recognition and
termination clauses of the agreement as a general waiver of the Board's
contract bar doctrine. As suggested by the Intervenor, those words
can more reasonably be given effect and construed as relieving the
Employer of contractual liability in the event that the Board should
find upon application of its own contract bar principles that the con-
tract was rendered inoperative as a bar and another union certified
as the bargaining representative. Accordingly, we find the Inter-
venor's contract with the Employer to be a bar to elections in these
cases, and we shall dismiss the petitions filed herein.
Order
IT IS HEREBY ORDERED that the petitions filed herein be, and they
hereby are, dismissed.
CHAIRMAN HERZOG and MEMBER STYLES took no part in the consid-
eration of the above Decision and Order.
T. It is a rule of contract interpretation that contracts or agreements affecting the public
interest are to be construed liberally in favor of the public. 3 Williston, Contracts § 626
(Rev. ed., 1936) ; Restatement, contracts § 236 (e) (1932). Cf. Otis Elevator Company,
97 NLRB 786; The Iron Fireman Manufacturing Company, 69 NLRB 19; cf. also Lever
Brothers Company, 96 NLRB 448; Columbia River Salmon and Tuna Packers' Assn.,
91 NLRB 1424.
FEIN'S TIN CAN CO ., INC., ANI) ATLAS CAN CORPORATION and UNI`rEn
WIRE AND METAL WORKERS UNION, LOCAL 24368, A FL, PETITIONER.
Case No. ''-RC-43U0. May 16, 1952
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 Lewis Moore, hearing officer.
The hearing officer's rulings made at the hearing are free from preju-
dicial error and are hereby affirmed.
Pursuant to the provisions of Section 3 (h) of the Act, the Board
has delegated its powers in connection with this case to a three-member
panel [Chairman Herzog and Members Houston and Murdock].
Upon the entire record in this case, the Board finds :
1. The Employers are engaged in commerce within the meaning of
the Act.
2. The labor organizations involved claim to represent certain em-
ployees of the Employers.
99 NLRB No. 32
FEIN'S TIN CAN Co., INC. 159
3. United Steelworkers of America and its Local 2072 intervened
in this proceeding for the purpose of urging a current contract with
the Employers as a bar to a present election. The Employers took no
position respecting this contract bar contention.
The contract, executed on May 26, 1950, will expixe on September
1; 1952. Although signed on behalf of the employees only by United
Steelworkers of America, the contract reads that it is made between the
Employers and "United Steelworkers of America, on behalf of the
members of Local Union No. 2072." 1 In detailed particulars not per-
tinent to the issue here, it makes union membership a condition of
employment. Local 2072, however, is not now and never has been in
compliance with the filing requirements of Section 9 (f), (g), and (h)
of the Act.
The Board has decided, pursuant to Public Law No. 180 of 1951, that
a union-shop contract held by a union which has not "at the time the
agreement was made or within the preceding twelve months received
from the Board a notice of compliance with Section 9 (f), (g), and
(h)," may not bar a present determination of representatives.2 In
this case, it is clear that Local- 2072 is active in the representation of
the employees involved. Indeed, its representative at the hearing
strongly disputed the Petitioner's assertion that Local 2072 is no
longer in existence at this plant. In these circumstances, it is im-
material that the contract was signed only by the parent union. As
respects the Board's contract bar rules, the legal consequences flowing
from the local's noncompliance status attach to the contract, regard-
less of whether the local union or its parent organization executed
the contract.' In either event the contract does not constitute a
bar.
Accordingly we find that a question affecting commerce exists con-
cerning the representation of employees of the Employers within the
meaning of Section 9 (c) (1) and Section 2 (6) and (7) of the
Act.
4. We find, in accordance with the stipulation of the parties, that
all employees of Fein's Tin Can Co., Inc., and Atlas Can Corporation,
at their plant located at 50th Street and First Avenue, Brooklyn,
New York City, excluding office and clerical employees, guards,
watchmen, chauffeurs and platform men, executives , and all super-
visors as defined in the Act, constitute a unit appropriate for the
purposes of collective bargaining.
[Text of Direction of Election omitted from publication in this
volume.]
' Exclusive recognition in favor of the parent organization is set forth elsewhere in the
contract.
2 Mellin-Quincy Manufacturing Co., Inc ., 98 NLRB 457.
Cf. Lane T Vella Company, 77 NLRB 1051.