Hoechst Chemical Corp.

National Labor Relations Board - Board Decisions

Apr 14, 1961

131 N.L.R.B. 108 (N.L.R.B. 1961)

108 DECISIONS OF NATIONAL LABOR RELATIONS BOARL
The Petitioner here seeks a miscellaneous group of employees, lack-
ing in internal homogeneity or cohesiveness. Their only claim to sepa-
rate identity is that they comprise all the unrepresented employees
of the Employers involved in the instant proceeding. However, as to
other employees of the Employers, there is a well-established multi-
employer bargaining history. The units of employees sought are co-
extensive with the particular employer's operations but are not coex-
tensive with the multiemployer unit. They are thus only a segment
of the residual group. Accordingly, as the units sought do not con-
stitute appropriate units, we shall dismiss the petitions herein.6
[The Board dismissed the petitions.]
Gin a supplemental brief to the Board, the Petitioner seeks to distinguish Los Angeles
Statler Hilton on the ground that in that case there was multiemployer bargaining as to
a large majority of the employers ' employees while here multiemployer bargaining has
taken place only with respect to a minority of employees , and thus the units sought are
"principal" bargaining units and not, as in Los Angeles Statler Hilton, "residual" units.
As the record here does not disclose the percentage of employees with respect to whom
there had been multiemployer bargaining , or that the units sought are composed of a
majority of the employees of each Employer , we do not pass on the validity of the
alleged distinction.
Hoechst Chemical Corporation and Bakery, Food , Dairy, Bev-
erage and Miscellaneous Drivers, Advance Salesmen, Ware-
housemen and Helpers Local Union No. 64, a/w International
Brotherhood of Teamsters , Chauffeurs , Warehousemen and
Helpers of America ,. Petitioner . Case No. 1-RC-6229. April
14, 1961
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 Alvin M. Glazerman,
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 Rodgers, Leedom, and Fanning].
Upon the entire record in this case , the Board finds :
1. The Employer is engaged in commerce within the meaning of the
Act.
'The Intervenor , Textile Workers Union of America , AFL-CIO , was allowed to inter-
vene on the basis of a contract interest.
The Employer and the Intervenor moved that the petition be dismissed because it con-
tained a false statement that there was no currently recognized bargaining agent,
whereas the Intervenor was so recognized . The Petitioner maintained that the error was
inadvertent , and that it took steps to make correction before the hearing We find that
none of the parties was prejudiced by the error , and this joint motion to dismiss is
therefore hereby denied.
131 NLRB No. 21.
HOECHST CHEMICAL CORPORATION 109
2. The labor organizations involved claim to represent certain em-
ployees of the Employer.
3. The question concerning representation :
The Employer and the Intervenor, which have had contractual
relations for a number of years, assert a contract bar. These parties
had a 3-year contract due to expire on March 1, 1961. They began
negotiations for a new contract in the middle of 1960, and reached an
oral agreement on September 27, 1960. On October 7, 1960, the Pe-
titioner, in a telephone conversation with the Employer, claimed to
represent the Employer's employees. On October 11, 1960, the same
day the petition was filed but before they were notified of its filing,
the Employer and the.Intervenor executed a written contract, the one
asserted herein to be a bar. This contract was made effective as of
September 27, 1960, and indicates on its face that it was executed on
that date, but both the contracting parties assert that it was in fact
executed on October 11, and the Employer maintains, in its brief, that
the parties to the contract intended it•to become effective "immediately
upon its execution."
The Petitioner contends that this contract cannot constitute a bar
because it contains an unlawful union-security clause. The clause in
question provides that :
It shall be a condition of employment that all employees of the
Employer covered by this, Agreement who are members of the
Union in good standing on' the effective date of this Agreement
shall remain members in.good standing and those who are not
members on the effective date of this Agreement, shall, on the
thirtieth (30th) day following the effective date of this Agree-
ment become and remain members in good standing in the Union.
It shall also be a condition of employment that all employees
covered by this Agreement and hired on or after its effective date
shall, on the thirtieth (30th) day following the beginning of such
employment become and remain members in good standing in
the Union.
Though the clause is consistent, on its face, with the requirements
established in the Keystone Coat case,2 it is apparent, from the con-
tracting parties' admission as to the actual execution date of the con-
tract, that it does not in fact grant old nonmember employees and
employees hired between September 27 and October 11, 1960, the
requisite 30-day grace period in which to decide whether to join the
Intervenor. Under such circumstances, we find that the contract,
though valid on its face, actually exceeds the permissive limits of the
statute, and, therefore, cannot constitute a bar.' Accordingly, we
2 Keystone Coat, Apron & Towel Supply' Company, et al., 121 NLRB 880.
3In view of this finding, we deem it unnecessary to pass upon other grounds urged by
the Petitioner for finding the contract not to be a bar.
110 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
find that a question affecting commerce exists concerning the repre-
sentation of employees of the Employer within the meaning of Sec-
tion 9(c) (1) and Section 2(6) and (7) of the Act.
Contrary to the assertions of our dissenting colleague, we think
we are not here contravening or relaxing the rule established in Key-
stone Coat, which bars the use of extrinsic evidence for the purpose of
determining the meaning and intent of a contractual union-security
clause. One purpose of that rule, as stated in that case, was to pre-
vent the undue prolongation of representation hearings which would
result if third parties were permitted to adduce extrinsic evidence
attacking provisions valid on their face, and the contracting parties to
adduce extrinsic evidence supporting provisions invalid on their face.
Here, however, it is the contracting parties themselves, and not some
third party, who are in effect attacking their own contract; accord-
ingly, this is a stiuation not encompassed within the intent of the
rule. Indeed , as we see it , our dissenting colleague would be relaxing
the Keystone rule by considering the provisions of the prior contract.
4. The parties stipulated, and we find, that the following employees
of the Employer constitute a unit appropriate for the purpose of
collective bargaining within the meaning of Section 9 (b) of the Act :
All production and maintenance employees at the Employer's West
Warwick, Rhode Island, plant, excluding office -clerical employees,
laboratory personnel , guards, professional employees , executives, and
all other supervisors as defined in the Act.
[Text of Direction of Election omitted from publication.]
MEMBER FANNING , dissenting :
I would find the parties' current contract to be a bar . My colleagues
find that it is not a bar , because, though the union -security clause is
valid on its face, it did not in fact grant old nonmember employees
and employees hired between September 27, and October 11, 1960, 30
days in which to decide whether to join the Intervenor. This con-
clusion is reached only because my colleagues accept evidence that the
contract , though by its terms executed on September 27, 1960, was
actually executed on October 11, 1960. Though such evidence is ex-
trinsic to the contract itself, and thus inadmissible under the Keystone
rule against receipt of extrinsic evidence , for purposes of determin-
ing the validity or invalidity of union-security clauses, I do not object
to its receipt into evidence and its use for purposes of determining the
date upon which the contract was actually executed. Indeed, I think
this is a necessary procedure to eliminate any possible collusion on
the part of contracting parties designed to forestall rival petitions by
predating contracts. This is not the case here, however, for the parties
executed their contract prior to receiving notice of the petition.
INTERNATIONAL LADIES' GARMENT WORKERS' UNION ill
I do object to the use of this extrinsic evidence for purposes of com-
puting the 30-day grace period allowed to old nonmember employees
as of the effective date or new employees hired between the effective
date and actual execution date, without also affording the contract-
ing parties an opportunity to show that the rights of employees were
not infringed or interfered with by the difference in dates. If the
rule against extrinsic evidence is to be relaxed, it should be relaxed
for all parties. Here the new contract was executed during the exist-
ing term of a 3-year contract, which also contained a valid union-
security clause. Accordingly, whether or not the new contract was
executed on September 27 or October 11, all nonmember employees
on September 27, and new employees hired between that date and
October 11 were in fact given at least 30 days in which to decide
whether to join the union. This was a right given them under the
initial 3-year agreement. This right was not taken away by the new
2-year agreement. Since the law requires no more, I would find the
new contract to be a bar to an election at this time.4
4 The majority clearly errs in stating that "it is the contracting parties themselves, and
not some third party, who are in effect attacking their own contract ." The contracting
parties admit that their contract was executed on October 11, 1960 , rather than on the
date shown on the face of the contract . This is not an attack on the contract , because,
even using that date , the petition was untimely filed. As for this being a situation not
encompassed within the intent of the Keystone rule, I refer my colleagues to the deci-
sion in Benjamin Franklin Paint & Varnish Company, a Division of United Wallpaper,
Inc., 124 NLRB 54, where the Board held it to be its policy that a "contract to consti-
tute a bar must be sufficient on its face , without resort to parol evidence , such as would
often be necessary to determine the actual execution date. As with union-security clauses,
and in determining the adequacy of a contract , the Board will be governed by the con-
tents of the contract on its face in determining whether the contract constitutes a bar
to a representation proceeding ." As Indicated I agree that evidence of the actual execu-
tion date is admissible to preclude possible collusive predating of contracts , in order to
bar petitions filed before the actual execution date. However, if the rule is to be relaxed
for that purpose it should also be relaxed to permit a showing that the union -security
clauses are not violative of the Act.
International Ladies' Garment Workers' Union and Federation
of Union Representatives, Petitioner . Case No. 2-RC-11158.
April 14, 1961
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 A. Gene Niro, hearing officer.
The hearing officer's rulings made at the hearing are free from prej-
udicial error and are hereby affirmed.
Upon the entire record, the Board finds :
1. The Employer is engaged in commerce within the meaning of
the Act.
1 The American Federation of Labor and the Congress of Industrial Organizations, herein
called the AFL-CIO, and Field Representatives Federation, AFL-CIO, DALU #3017,
were permitted to file amious briefs, and such briefs were duly considered by the Board.
131 NLRB No. 25.