Active Sportswear Co., Inc.

National Labor Relations Board - Board Decisions

Feb 13, 1953

102 N.L.R.B. 1396 (N.L.R.B. 1953)

1396 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Street plant employees.8 Accordingly, we shall make no final unit
determination at this time, but shall first ascertain the desires of these
employees as expressed in the election hereinafter directed.
Employed at the Forest Avenue plant are 3 watchmen and 1 time-
keeper. The parties take no position as to their inclusion in the ap-
propriate unit, but apparently leave the problem of inclusion or ex-
clusion to the determination of the Board. The duties performed by
the watchmen include punching the clock, checking sprinklers, guard-
ing the premises, and limited janitorial work. Since the record dis-
closes that these employees are primarily employed as watchmen,
we shall exclude them from the unit. The timekeeper, in addition
to keeping time records, maintains stock records, takes inventory,
performs limited maintenance work, and is carried on the factory pay-
roll. We shall include this employee in the unit.
We shall direct an election in the voting group composed of the
production and maintenance employees at the Employer's Forest
Avenue plant, including the timekeeper, but excluding office cleri-
cal employees, guards, watchmen, professional employees, and super-
visors as defined in the Act.
If a majority of the employees in this voting group vote for the
Petitioner, they will be taken to have indicated their desire to con-
stitute a separate plant bargaining unit. If the majority select the
Intervenor, they will be taken to have indicated their desire to be-
come a part of the existing unit composed of employees at the Austin
Street plant.
[Text of Direction of Election omitted from publication in this
volume.]
3 General Metals Corporation , 95 NLRB 1490 ; Weyerhaeuser Timber Co., 78 NLRB 1267.
ACTIVE SPORTSWEAR CO., INC., and MARY LYONS, PETITIONER and
LOCAL 75, INTERNATIONAL LADIES' GARMENT WORKERS ' UNION, AFL.
Case No. 1-RD-1N3. February 13, 1953
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 hear-
ing 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, a Board
has delegated its powers in connection with this case to the three-
member panel [Members Houston, Styles, and Peterson].
102 NLRB No. 136.
ACTIVE SPORTSWEAR CO., INC. 1397
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 Union claims to represent certain employees of the Em-
ployer. The Petitioner, an employee of the Employer, asserts that`
the Union is no longer the bargaining representative, as defined in
Section 9 (a) of the Act, of the employees involved in this matter.
3. On August 17, 1951, the Employer and the Union concluded the
latest contract in a bargaining relationship which has existed at least
since 1949 . This agreement , like its predecessors , contained union-
security provisions . It was to remain in effect for a period of 1 year,
and thereafter for annual periods if no notice to terminate or modify
was given at least 60 days prior to the anniversary date. The con-
tract was automatically renewed on August 17, 1952, 9 days before
the instant petition was filed.
The following are the pertinent provisions of the 1951 agreement :
THIRD : It is hereby agreed that all employees covered by
this Agreement shall be and become members of the Union
in good financial standing for the duration of this Agreement,
as a condition of employment, except during the worker's trial
period, hereinafter referred to.
FOURTH : All new employees, after a probationary period of
thirty (30) days, shall become and remain members of the Union
as a condition of employment and remain members of the Union
in good financial standing and the Union agrees to accept such
employees as members.
The foregoing provisions with reference to Union security shall
at all times be subject to the provisions of the Labor- Manage-
ment Relations Act, 1947, or to any other applicable Federal or
State laws, and the Employer shall not be bound thereby unless
there has been compliance by the Union with such applicable
laws.
The union-security provision was never authorized by a union-shop
election during the period when such elections were necessary. Fur-
thermore, Local 75 was not in compliance with Section 9 (f), (g),
and (h) when the collective-bargaining agreement was concluded,
or at any time thereafter.
The Union argues that the contract is a bar to an election because
the union-security provisions were effectively deferred by language
in the contract. It concedes that, absent such deferral, the lack of
compliance would prevent the union-security contract from being
a bar.
250983-vol . 102-53-89
1398 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Board has held that, in order to effect a deferral of a union-
security provision , the language of the agreement must clearly show
that the union-security clause is not to be applied until its legality
is established.' We are satisfied that the second paragraph of Article
Fourth does not clearly defer the applicability of the union-security
provision . The requirement that this provision shall at all times be
"subject to the provisions of the Labor-Management Relations Act,
..." does not postpone its operation until its validity is established.
The Board has heretofore viewed comparable language as making the
provision presently effective, but postponing the issue of legality for
future determination by a proper tribunal 2
Our conclusion is not altered by the fact that this clause further
provides that "the Employer shall not be bound thereby unless there
has been compliance by the Union with such applicable laws." For,
it is apparent that the parties considered that membership in the
Union was essential to the administration of the contract, irrespective
of compliance by the Union. Thus, Article Fifteenth of the con-
tract,3 which relates to employee benefits, limits those benefits to mem-
bers of the Union, and there is no provision for its deferral. More-
over, although the contract purports to be an exclusive collective-
bargaining agreement, its preamble states that the Union claims to
represent only "the members thereof now employed or hereafter to be
employed by the Employer 4 . . ."
Accordingly, as the union-security clause was not deferred, the
Board finds that the contract is not a bar to an election and that a
question of commerce exists concerning the representation of em-
ployees of the Employer within the meaning of Section 9 (c) (1) and
Section 2 (6) and (7) of the Act.-5
4. We find, in agreement with the Petitioner, that the following
employees of the Employer constitute a unit appropriate for the pur-
poses of collective bargaining within the meaning of Section 9 (b) of
the Act :
Sa-Mor Quality Brass, Inc, 93 NLRB 1225.
2 0. F Shearer it Sons, 93 NLRB 1228; Sa-Mor Quality Brass , Inc., supra ; Sonotone
Corporation, 9,0 NLRB 1236; Hazel-Atlas Glass Company, et at., 85 NLRB 1305, Lykens
Hosiery Mills , Inc., 82 NLRB 981.
S "FIFTEENTH The Employer shall pay . . . to the Union . . . toward the Health,
Welfare and Vacation Fund . . . for the purpose of providing its members with . . .
benefits. . . .
4 The Union also relies on Articles Twenty-Third and Twenty -Fourth. Article Twenty-
Third is a general clause providing for modification of the agreement so as not to be in
conflict with the Labor Management Relations Act, as it may be amended . This is clearly
not a deferral provision Article Twenty -Fourth is a savings clause which becomes im-
portant in the event any clause is held invalid. It, too, clearly has no bearing upon the
validity of the deferral of the union-security provision
6 We find it unnecessary to consider the other contentions of the Petitioner on the con-
tract bar issue.
PACKARD-BELL COMPANY 1399
All employees at the Employer's Worcester, Massachusetts, plant,
excluding maintenance employees, clerical employees, executives,
guards, and supervisors, as defined in the Act .6
[Text of Direction of Election omitted from publication in this
volume.]
6 This is the unit set forth in the present collective -bargaining agreement.
PACKARD-BELL COMPANY, SERVICE DIVISION and INTERNATIONAL
BROTHERHOOD OF ELECTRICAL WORKERS, LOCAL No. 1222, AFL,
PETITIONER. Case No. 30-RC-846. February 13, 1953.
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 Clyde F. Waers, hear-
ing 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-mem-
ber panel [Chairman Herzog and Members Styles and Peterson].
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 em-
ployees 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.
4. We find, in agreement with the parties, that the following em-
ployees constitute a unit appropriate for the purposes of collective
bargaining within the meaning of Section 9 (b) of the Act:
All employees at the Employer's Denver, Colorado, service branch,
excluding office and clerical employees and supervisors.
5. The Employer contends that the petition is premature and
should be dismissed because of a contemplated expansion in the size
of the unit. The Petitioner urges that the Employer's estimates as
to the number of employees to be hired within the next year is specu-
lative, and that a representative group of employees is now working
in all classifications.
The Employer started its Denver operations in July 1952. At the
time of the hearing, January 12, 1953, it had 18 employees, having
hired approximately 4 each month since August 1952. The Employer
102 NLRB No. 140.