Hess, Goldsmith & Co., Inc.

National Labor Relations Board - Board DecisionsDec 10, 1952

101 N.L.R.B. 1009 (N.L.R.B. 1952)

HESS, GOLDSMITH & CO., INC. 1009 riod preceding the election be eligible to vote in the election. The re- quested eligibility formula differs somewhat from that adopted by the Board in recent decisions 9 for employees, like the cameramen and soundmen, employed on an irregular basis from a pool of available trained employees. However, in view of the fact that none of the par- ties objects, and under the special circumstances of this case,10 we find that the eligibility formula advanced by Local 666 is an equitable one. Accordingly, all cameramen and soundmen 11 who have been employed for 3 or more days by the Employer within the 13-month period im- mediately preceding the date of this Decision and Direction of Elec- tion shall be eligible to vote in the election. Order As we have found that the unit petitioned for in Case No. 14-RC- 1915 is inappropriate for purposes of collective bargaining, that peti- tion is herewith dismissed. [Text of Direction of Elections omitted from publication in this volume.] 9 Trans film, Incorporated, 100 NLRB 78 ; Society of Independent Motion Picture Pro- ducers, 94 NLRB 110; Television Film Producers Association , 93 NLRB 929. 11 Although soundmen are classified as stagehands , they may, if they do soundman work 10 See footnote 4. and meet the eligibility requirements of paragraph 5, vote in the cameramen and sound- men voting group. The Ocala Star Banner, 97 NLRB 384. HESS, GOLDSMITH & Co., INC., ATWATER DIVISION and UNITED TEXTILE. WORKERS OF AMERICA , AFL, PETITIONER . Case No. 4-IBC-1623. December 10, 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 Harold Kowal, a hearing officer of the National Labor Relations Board. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed I Concerning our ruling on the admission of certain evidence, see footnote 4, below. At the hearing the Textile Workers Union of America , CIO, the Intervenor, filed a motion to dismiss the petition on grounds relating to the compliance status of the Peti - tioner and its Local 998. The fact of compliance by a labor organization which is required to comply is a matter for administrative determination and is not litigable by the parties . Moreover , the Board is administratively satisfied that the Petitioner and its local are in compliance. See Sunbeam Corporation, 94 NLRB 844, 98 NLRB 525; Swift & Company, 94 NLRB 917; compare Highland Park Manufacturing Company, 71 S. Ct. 489. It appears that Petitioner' s Local 998, which will represent the employees requested , achieved compliance as a new local during the course of the hearing. We deny the Intervenor 's motion to dismiss for failure to comply at the time of filing. See United States Gypsum Company , 100 NLRB 1100. 101 NLRB No. 173. 1010 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 1. The Employer is engaged in commerce within the meaning of the National Labor Relations Act. 2. The labor organizations involved claim to represent employees of the Employer. 3. A question affecting commerce exists concerning the representa- tion of employees of the Employer, within the meaning of Section 9 (c) (1) and Section 2 (6) and (7) of the Act. The Employer and the Intervenor have contracted since 1948 for employees of the Employer's Atwater Division, at its Blackman Street, Wilkes-Barre, Pennsylvania, plant and its Plymouth, Pennsylvania, plant. Of record in this proceeding is the parties' contract entered into as of August 1, 1948,2 which the Intervenor urges as a bar. It provides the following as to union membership : Section 2. Union Membership. As a condition of employment, all present employees shall become and remain members of the Union in good standing so long as the Union is the collective bar- gaining agency. New employees shall become and remain mem- bers of the Union in good standing within thirty (30) days after employment, and both present and new employees shall have full rights and privileges of membership. The contract also contains a provision for checkoff of dues. The Petitioner urges the illegality of this union membership clause within the meaning of Section 8 (a) (3) of the Act because of the failure to provide a 30-day grace period for old employees on the payroll when the contract was executed. It therefore contends that the contract as extended $ is no bar to its petition for the contract unit filed June 14 1952. The parties stipulated that all employees in the bargaining unit had dues checked off on the payrolls immediately before and after August 1, 1948, and immediately before and after October 4, 1948. Stressing this admitted fact, the Intervenor argues that there was no need to 2 The record contains a reference to an earlier 1948 contract , the first between the parties, executed February 26 but effective January 5 , 1948. Its stated term was to January 1 , 1949. This contract contained the same union membership clause as the August 1 contract with this addition : "When authorized by the provisions of the Labor Management Relations Act of 1947 , the parties agree as follows :" The record indicates that on March 10, 1948, a union-security authorization was issued to the Intervenor. Case No. 4-UA-182. 3 The August 1, 1948, contract was actually executed October 4, 1948 , for a term ending March 15, 1950 , with automatic renewal provided for. Apparently no notice of termi- nation was given . A brief memorandum signed by the parties and dated March 16, 1951, refers to the August 1, 1948, contract as extended to March 31 , 1951, pending negotiations. A May 15, 1951, agreement between the Intervenor and six employers , members of the Wyoming Valley Throwsters Labor Committee , specifically extended the existing individual contracts between the Intervenor and the individual employers, of which this Employer is one, to March 15, 1954 . Under existing Board rules the August 1, 1948 , contract between the Intervenor and this Employer , so extended , may, if not otherwise defective, constitute a bar during the first 2 years of the 1951 extension . Interstate Brick Company, 91 NLRB 1428. HESS, GOLDSMITH & CO., INC. 1011 include a provision in the August 1, 1948, contract allowing a 30-day grace period to old employees, as all of them were then members.' In support of its contention the Intervenor cites the Board's de- ci sions in Sylvania Electric Products Inc.,' where the contract provided a 30-day grace period for all employees but appeared to shorten it as to some by retroactive effectiveness, and Charles A. Krause Milling Co.,' where the contract provided a 30-day grace period for new employees, and as to old employees, required only that those who already were, or became members, should continue being members. Neither is prece- dent for the problem presented here. Clearly the Intervenor's contract made no distinction ' in membership requirements for old employees. It required all old employees, whether or not already members, to become union members forthwith, in disregard of the Act's Section 8 (a) (3) provision that employment may be "conditioned upon" union "membership . . . on or after the thirtieth day following the beginning of such employment or the effective date of such agree- ment, whichever is the later." 7 The Intervenor would show that its contract does not violate the spirit of this statute-a goal more easily achieved by mere repetition in the contract of the statutory lan- guage k--by having us consider evidence of actual union membership at the time of contracting. To permit such extrinsic facts to justify the terms of a union-security agreement otherwise illegal on its face would open the flood-gates to the introduction of a mass of evidence concerning the synchronous union membership of all employees. This would, we believe, seriously impede the processing of representation proceedings. Therefore, without deciding whether under the pro- visions of Section 8 (a) (3) of the Act the Board is authorized to take such evidence, it will not, as a matter of administrative policy, do so.' 4 Over objection of the Intervenor , the Petitioner introduced testimony of the Employer's Atwater Division manager to the effect that in March 1948, after the union -security authorization to the Intervenor , the Employer immediately began checking off dues without giving old employees a 30-day grace period . Actually the record is inconclusive on this point. In effect the Petitioner , without filing a charge, interjected evidence that the Employer had engaged in an alleged unfair labor practice in that it unlawfully maintained and assisted the Intervenor by requiring all old employees to become members without a 30-day grace period . As the Board has consistently ruled that evidence of unfair labor practices is inadmissible in representation proceedings ( see Avco Manufac- turing Corporation , New Idea Division, 97 NLRB 645 ), we disregard this evidence which, although not prejudicial in the circumstances , should not have been admitted in this proceeding. 5 100 NLRB 357. 6 97 NLRB 536. 7 No prior contract between the parties allowed old employees a 30-day grace period. Compare Josten Engraving Company, d/b/a American Yearbook Company, 98 NLRB 49. 8 In fact, in more recent contracts with employers in the area , the Intervenor has done just that. See contracts in evidence in Liberty Throwing Company, Inc., 4-RC-1621, and Kerstetter Silk Throwing Co., Inc., 4-RC-1624, now pending for decision before the Board. 9 We see no merit to the Intervenor 's argument that the Petitioner , representing, as it does, a local group which entered into the contract in question during its affiliation with the Intervenor , may not urge the illegality of the clause. 242305-53--65 1012 DECISIONS OF NATIONAL LABOR RELATIONS BOARD We find that the contract, because of its union-security provision, which does not give a 30-day grace period to old employees who are not members of the Union, is not a bar to a present determination of representatives. 4. The Intervenor also moved to dismiss the petition on the ground that the unit requested is inappropriate. The Petitioner and the Employer stipulated to the appropriateness of the unit covered by the contract between the Employer and the Intervenor, for which unit the Intervenor was certified as bargaining representative in 1947. However, the Intervenor now contends-basing its contention upon recent bargaining with this Employer and five others in the area, which began in 1951 for the purpose of negotiating a welfare clause lo- that a multiemployer unit is appropriate. For reasons fully set out in our recent decisions in Franklin Throwing Company, 101 NLRB 153, 101 NLRB 737, in which we discussed in detail this multi- employer bargaining, we find a unit limited to the employees of this Employer the appropriate unit. Accordingly we find that all production and maintenance employees of the Employer's Atwater Division, Plymouth and Wilkes- Barre, Pennsylvania, plants, excluding executives, managers, superintendents, department foremen, shift foremen, shift supervisors, master fixer, quality control employees, truck drivers, clerical employees, and all guards, professional employees, and supervisors as defined in the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act. [Text of Direction of Election omitted from publication in this volume.] MEMBER MURDOCK, dissenting in part: I cannot agree with the conclusion of my colleagues that the con- tract in question does not bar this proceeding. In line with that well established rule of law that contracts will, when possible, be construed as lawful," I would allow the contracting union here to prove that all employees were actually union members when the contract was made; hence no violence to the Section 8 (a) (3) grace period requirement of the Act was done by the wording of this union-security clause, and it is legal. That requirement of Section 8 (a) (3) is itself couched in negative terms : ". . . nothing . . . shall preclude an employer from making 10 See footnote 3, above. "Williston on Contracts, Rev. Ed., Vol. III, Sec. 620; Rest., Contracts, Sec. 236 (a) : "An interpretation which gives a reasonable, lawful and effective meaning to all manifesta- tions of intention is preferred to an interpretation which leaves a part of such mani- festations unlawful or of no effect." HESS, GOLDSMITH & CO., INC. 1013 an agreement with a labor organization ... to require as a condition of employment membership therein on or after the thirtieth day fol- lowing the beginning of such employment or the effective date of such agreement, whichever is later." Thus, Section 8 (a) (3) does not affirmatively require-as my colleagues imply-that union-security clauses shall slavishly follow its wording and explicitly provide a 30- day grace period for old and new employees alike when the parties well know, by reason of the established bargaining relationship be- tween them, that all then employed are union members and would be unaffected by a "condition of employment" requiring such membership. This Board has already said in its unanimous opinion in the Krause Milling case,12 in which great care was taken to examine congressional intent, that 30-day "free riders" were not to be tolerated. It also said in that decision that a contrary interpretation "might soon lead to re- sults incompatible with the labor stability sought to be achieved through collective bargaining agreements"--a policy with which I am most heartily in accord. And it there stated, without qualification, that the correct interpretation of the Section 8 (a) (3) proviso "is one where the 30-day grace period must be accorded only to those em- ployees who are not members of the union on the effective date of the union-security clause of the contract, and to new employees hired after said effective date." (Emphasis supplied.) What then, is the pur- pose to be served-in a case such as this where it appears that there were no nonmember old employees who were entitled to a grace period and only the contract wording differs-by refusal to examine the facts concerning union membership? My colleagues argue that the taking of such evidence in representa- tion cases would impose an undue administrative burden upon the Board. In this particular case the burden would have been nil-the parties stipulated as to union membership of those employed at the time of contracting. Actually I believe it would be a rare case that imposed a burden upon the Board in this regard. Absent stipulated evidence, proof of membership could be accomplished by the submis- sion of payrolls and checkoff lists, or membership lists if no checkoff existed. Should the necessary confirmation inherent in such lists be unavailable and the contracting union resort to other affirmative proof, the introduction of evidence tending to show that only two or three employees were in fact not members of the union would cast sufficient doubt on the necessary totality to justify the exclusion of further af- firmative evidence of membership. And it is my considered opinion that this very vulnerability of contracts to proof of illegality by testimony concerning the nonmembership of even one employee would tend to discourage the drafting of ambiguous clauses by contracting " Charles A. Krause Milling Co ., 97 NLRB 536. 1014 DECISIONS OF NATIONAL LABOR RELATIONS BOARD parties . I do not foresee the gloomy prospect for the administrative process which my colleagues fear. Certainly no salutary policy is served by a strict requirement by this Board under Section 8 ( a) (3) of the Act that contracts must specify a 30-day grace period for employees not members of the union even though it is apparent to the contracting parties that no such employees exist. For this Board to deny to contracting parties the right to fashion their contract to the facts of employment existing on the date of the contract , and to hold them rigidly to a stereotype form of contract to lighten the burden of the Board , is hardly compatible with stabilizing labor relations. MILLER ELECTRIC COMPANY and AMERICAN FEDERATION OF TECHNICAL ENGINEERS, AFL, PETITIONER. Case No. 11-RC-4.557. December 11, 190 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 Robert Cohn, 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 Act, the Board has delegated its powers in connection with this case to a three-member panel [Members Houston, Murdock, and Styles]. Upon the entire record in this case, the Board finds : 1. The Employer is engaged in commerce within the meaning of the Act.' 2. The labor organization involved claims to represent certain employees of the Employer. 1 The Employer entered into the following stipulation of facts concerning the nature of its business : "The Miller Electric Company is a Florida Corporation engaged in the electrical contracting business with principal offices in Jacksonville , Florida. At present the Employer is engaged in operations in the States of Georgia , Florida, South Carolina and North Carolina. Gross annual revenues for the past year exceeded $ 100,000. The Employer is presently engaged in the installation of electrical equipment on the Savannah River Project pursuant to a contract with the E. I. DuPont de Nemours & Co. The value of this contract exceeds $100,000. The project is one devoted to the defense effort." The Employer contends that because in this particular job it supplies no materials , but merely handles materials supplied by the Government and installs said materials , it is not engaged in interstate commerce within the meaning of the Act. It has long been a settled policy of the Board to determine jurisdiction based on the over-all operations of the Employer. This applies to firms in the construction industry as well as other firms . Paul W. Speer, Inc., 94 NLRB 317. In any event, since the Employer is doing business on an atomic energy reservation, his operations are so identified with the Government's national defense program as to warrant the full exercise of the Board's power to assert jurisdiction conferred on it by the Act. Richland Laundry and Dry Cleaners , 93 NLRB 680. 101 NLRB No. 180.