Hazel-Atlas Glass Co.

National Labor Relations Board - Board Decisions

Sep 13, 1949

85 N.L.R.B. 1305 (N.L.R.B. 1949)

In the Matter of HAZEL-ATLAS GLASS COMPANY AND CLARKSBURG
PAPER COMPANY, EMPLOYER and FEDERATION OF GLASS, CERAMIC
AND SILICA SAND WORKERS0OF AMERICA, CIO, PETITIONER
Case No. 15-RC-250.-Decided September 13, 1949
DECISION
AND
DIRECTION OF ELECTION
Upon a petition duly filed, a hearing was held before Andrew P.
Carter, 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 Herzog and Members
Reynolds and Gray].
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 involved claim to represent certain
employees of the Employer.
3. The question concerning representation :
The Employer and Glass Bottle Blowers Association of the United
States and Canada, A. F. L., hereinafter called the Intervenor, con-
tend that a collective bargaining contract executed by them and Local
196 of the Intervenor on May 31, 1948, for a term to expire on Septem-
ber 1, 1950, is a bar to this proceeding. The Petitioner asserts that
this agreement cannot be a bar, because (a) it contains certain illegal
union-security provisions and (b) its duration is unreasonable.
The contract contains a union-shop clause, with the proviso, how-
ever, that it shall not become effective until after a union-shop author-
ization election shall have been held pursuant to Section 9 (e) (1) of
the Act. In addition, it contains the following clauses :
Section 2. It is understood that when a new employee is hired
for the departments represented by this agreement, preference
shall be given to members of the Glass Bottle Blowers Associa-
tion, providing they are competent and satisfactory.
85 N. L. R. B., No. 215.
1305
1306 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Section 5. All sections of this agreement are to be subject to
the applicable provisions of the Labor Management Relations Act
of 1947, any part in conflict therewith shall be null and void.
The clause in the contract providing for a union-shop, contingent
upon the results of a union-shop authorization election to be conducted
in the future, is valid under our holding in the Schaefer Body case.,,
However, the provision for preferential hiring is unlawful, without
regard to whether a union-shop authorization election has been con-
ducted, because it exceeds the limited form of union-security permitted
by the proviso clause to Section 8 (a) (3) of the Act.2
The Employer and the Intervenor contend, however, that no effect
should be given to the unlawful provision for preferential hiring,
which has never actually been enforced, because of the severability
clause which provides that any part of the contract in conflict with
the current Act "shall be null and void." They further contend,
and they have introduced considerable testimony tending to support
their contention, that at the time the contract was signed both con-
tracting parties intended that the preferential hiring clause was to be
effective only if Congress repealed the Taft-Hartley Law, and that
the severability clause was inserted to achieve that understanding.
We have held in another case, involving a similar severability clause,
that the reasonable construction to be given such a clause is that the
union-security provision remains effective unless and until the proper
tribunal determines that it is invalid." The very existence in the con-
tract of the clause therefore acts as a restraint upon employees desiring
to refrain from union activities within the meaning of Section 7 of
the Act.' It is immaterial that the contracting parties orally agreed
that the clause was to remain inoperative unless the Taft-Hartley Law
was repealed,5 or that no action in fact has been taken to render it
effective." Accordingly, as the May 31, 1948, agreement contains an
illegal preferential hiring clause, we find that it is not a bar to a cur-
rent determination of representatives.
We find that a question affecting commerce exists concerning the rep-
resentation of employees of the Employer, within the meaning of Sec.
tion 9 (c) (1) and Section 2 (6) and (7) of the Act.
4. The following employees of the Employer constitute a unit
appropriate for purposes of collective bargaining within the meaning
of Section 9 (b) of the Act:
1 Matter of Schaefer Body, Inc., 85 N. L. R. B. 670.
2 Matter of Continental Bus System, Ind., 84 N. L. R. B. 195, and cases cited therein.
3 Matter of Evans Milling Company, 85 N. L. R. B. 391 (Chairman Herzog dissenting).
4 Matter of Unique Art Manufacturing Company, 83 N. L. R. B. 1250.
5 Matter of Reading Hardware Corporation, 85 N. L. R. B. 610; Matter of Evans Milling
Company, supra; Matter of Bond Stores, Incorporated, 81 N. L. R. B. 1177.
9 Ibid.
HAZEL-ATLAS GLASS COMPANY 1307
All miscellaneous production and nonproduction employees at
the Employer's Montgomery, Alabama, plant, excluding employees in
the mold making department presently covered by a contract with
the American Flint Glass Workers Union of North America, machine
operators, machine upkeep men, learners, beginners, office clerical
employees, guards, watchmen, professional employees, and supervisors
as defined in the Act.
DIRECTION OF ELECTION 7
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
supervision 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
Federation of Glass, Ceramic and Silica Sand Workers of America,
CIO, or by Glass Bottle Blowers Association of the United States
and Canada, A. F. L.,e or by neither.
* Any participant in the election herein may, upon its prompt request to, and approval
thereof by, the Regional Director have its name removed from the ballot.
8 The compliance status of Local 196, Glass Bottle Blowers Association of the United
States and Canada, A. F. L., has lapsed since the hearing in this manner. The Regional
Director is herewith, instructed to delete the Intervenor from the ballot in the election
herein if its Local 196 has not, within 2 weeks from this date, renewed its compliance
with Section 9 (f), (g), and (h). No election shall be scheduled within the 2-week period
allowed until and unless compliance has been determined.