Andor Co., Inc.

National Labor Relations Board - Board Decisions

Dec 14, 1957

119 N.L.R.B. 925 (N.L.R.B. 1957)

ANDOR COMPANY, INC. 925
several States and tend to lead to labor disputes burdening and-obstructing com-
merce and the free flow thereof.
V. THE REMEDY
Having found that the Respondent has engaged in certain unfair labor practices,
I shall recommend that it cease and desist therefrom and take certain affirmative
action designed to effectuate the policies of the Act.
Upon the foregoing findings of fact, and upon the entire record in the case, I
make the following:
CONCLUSIONS OF LAw
1. General Teamsters , Chauffeurs and Helpers Union, Local No. 298, I. B. T. &
H. of A., A. F. L.-C. I. 0., is a labor organization within the meaning of Section
2 (5) of the Act.
2. All production and maintenance employees of the Respondent at its Knox,
Indiana, plant excluding watchmen-janitors or janitor -guards, office clerical em-
ployees, 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.
3. The, above-named Union was on March 13 , 1956, and since that date has
been at all times the exclusive representative of all employees in the aforesaid ap-
propriate unit for the purposes of collective bargaining within the meaning of Sec-
tion 9 (a) of the Act.
4. By interfering with, restraining, and coercing its employees in the exercise of
rights guaranteed in Section 7 of the Act, the Respondent has engaged in and is
engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the
Act.
5. By refusing on March 17, 1956, and at all times thereafter, to bargain collec-
tively with the above-named Union as the exclusive representative of its employees
in the aforesaid appropriate units, the Respondent has engaged in and is engaging
in unfair labor practices within the meaning of Section 8 (a) (5) of the Act.
6. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce, within the meaning of Section 2 (6) and (7) of the Act.
[Recommendations omitted from publication.]
Andor Company, Inc. and Jose P. Feliciano, Petitioner and Local
229, United Textile Workers of America, AFL-CIO. Case No.
Q-UD 33. December 14, 1957
DECISION AND DIRECTION OF ELECTION
Upon a petition duly filed under Section 9 (e) of the National
Labor Relations Act, a hearing was held before Julian J. Hoffman,
hearing officer. The hearing officer's rulings made at the hearing are
free from prejudicial error and are hereby affirmed.1
Upon the entire record in this case, the Board finds :
1. The. Employer is engaged in commerce within the meaning of
the Act.2
'At the, hearing, the Union objected to the hearing officer's granting the Petitioner
permission to amend its petition by adding the term "Inc." to the name of the Employer
listed thereon, and by adding the term "AFL-CIO" after the name of the Union. As the
amendments seek to correct merely technical defects in the names of the Employer and
the Union , and as there is no showing that these parties have been prejudiced thereby,
the Union 's objection is overruled . See United States Plywood Corporation, 112 NLIIB
1471 , 1472-73. The names of the Employer and the Union are accordingly amended.
S The Union asserts that the Employer is not engaged in commerce and that the Board
should decline to exercise jurisdiction over it. The record discloses that during the
annual period material to this proceeding , the Employer furnished belts valued in,excess
119 NLRB No. 120.
926 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. The labor organization involved claims to represent employees
of the Employer.
3. On March 23, 1954, the Employer and the Union executed a
2-year contract providing that "All employees shall be required to
join the Union after a 30-day period following their employment or
the effective date of this agreement, whichever is later, and shall
remain members in good standing in the Union as a condition of
employment." The contract also provided for the checkoff, with the
-employees' written consent, of "union membership dues" which were
defined as including assessments. The contract then provided that
"The Employer agrees to discharge, upon receipt of a registered letter
from the Union, any employee who has been expelled or suspended
by the Union for being in arrears in dues or undermining the Union."
On March 23, 1956, this contract, with minor exceptions not pertinent
here, was renewed for an additional 2-year period. On November
30, 1956, the Petitioner filed the instant petition seeking an election to
rescind the Union's authority to make a union-security agreement.
The Union moved to dismiss the petition on the grounds that (1)
the petition was untimely filed under the Board's contract-bar rules,
and (2) there is no showing that the union-security agreement in its
contract was made "pursuant to Section 8 (a) (3)" of the Act as
required under Section 9 (e) (1) as a condition to the maintenance
of a deauthorization petition.
With respect to the Union's first ground for dismissal of the
petition, the Board has consistently held since the 1951 amendments
to Section 9 (e) (1) of the Act that "the normal contract-bar prin-
ciples established by the Board cannot be applied to union-shop
deauthorization cases...." 3 We perceive no cogent reason, and the
Union has advanced none, for departing from the Board's established
policy in this area. Accordingly, the Union's motion to dismiss the
.petition as being untimely filed under the Board's contract-bar rules
is denied.
With respect to the Union's second ground for dismissal, Section
9 (e) (1) of the Act provides that
Upon the filing with the Board, by 30 per centum or more of the
employees in a bargaining unit covered by an agreement between
their employer and a labor organization made pursuant to section
8 (a) (3), of a petition alleging they desire that such authority
be rescinded, the Board shall take a secret ballot of the employees
of $100 ,000 to a dress manufacturer in the same State who in turn shipped dresses out of
State valued in excess of $50,000. On the basis of the foregoing, we find that the
Employer is engaged in commerce within the meaning of the Act and that it will effectuate
the policies of the Act to assert jurisdiction over it. See Jonesboro Grain Drying Co-
operative, 110 NLRB 481, 484.
8 See Great Atlantic & Pacific Tea Company , 100 NLRB 1494, 1495. See also Accurate
Molding Corporation, 107 NLRB 1087, 1088; Hydraulics Unlimited Manufacturing Co.,
107 NLRB 1646; Truth Tool Company, 111 NLRB 642, 643.
ANDOR COMPANY, INC. 927
in such unit and certify the results thereof to such labor
organization and to the employer. [Emphasis supplied.]
Section 8 (a) (3) provides that a union may enter into a union-
security agreement if the union is the exclusive representative of
employees in an appropriate unit; if the union was in compliance with
the provisions of Section 9 (f), (g), and (h) at the time of the
execution of the agreement or within the preceding 12-month period;
and if no deauthorization election has been held within the preceding
12 months. In addition to the foregoing procedural requirements
under Section 8 (a) (3) for the maintenance of a deauthorization
petition, that section also provides that a union-security agreement
"made pursuant to Section 8 (a) (3)"must not operate to discriminate
against employees for nonmembership in a labor organization except
in limited circumstances, i. e., failure to tender periodic dues and
initiation fees uniformly required as a condition of acquiring or
retaining membership in the union.
The contract between the Employer and the Union defines the
term "dues" as including "assessments" and provides that an employee
may, at the behest of the Union, be discharged for failing timely to
pay assessments. The requirement of payment of assessments as a
condition of continued employment with the Employer clearly is not
in conformity with the restrictive union-security provisions of Section
8 (a) (3). Consequently, a contract containing such a union-security
clause can in no sense be said to have been made "pursuant to Section
8 (a) (3)."
While not urging that the inclusion of the "assessments" provision
in its agreement with the Employer removes the agreement from the
authorized limits of Section 8 (a) (3), the Union nevertheless argues
that the instant petition should be dismissed because there is no
showing that the contract conforms with the provisions of Section
8 (a) (3). In connection with this argument, the Union relies upon
the Board's decision in The D. M. Bare Paper Company.4 In the
Bare case, the union involved was not in compliance with Section 9
(f), (g), and (h) of the Act when it executed a contract with an
employer containing an otherwise lawful union-security provision.
Finding that one of the procedural conditions for the maintenance of
^deauthorization petitions under Section 9 (e) (1) had not been met,
a Board majority concluded that the contract in question was not
.made "pursuant to Section 8 (a) (3)." Conceiving that this defect
precluded the Board from directing a deauthorization election, the
majority ordered that the petition be dismissed, pointing out that an
unlawful union-security clause could be remedied under Section 8 (a)
.(2) and (3) and 8 (b) (2) of the Act.
s 99 NLRB 1487.
928 DECISIONS OF NATIONAL LABOR RELATIONS BOARD.
We have carefully reviewed the Bare case and are convinced that
the dismissal of a deauthorization petition which seeks to remove an
unlawful union-security provision from a collective-bargaining con-
tract is at-variance with the real intent of Congress in enacting the
1951 amendments to Section 9 (e) (1). As we read the legislative
history of that section, we are of the opinion that the Congress, in
eliminating the union-shop authorization elections and permitting
labor organizations to enter into union-security agreements without
specific prior approval of the employees in the unit, nevertheless was
determined that a safety valve should exist whereby the employees
might rid themselves of union-security provisions which they no.
longer desired. To refuse to entertain and process a deauthorization
petition aimed at the removal of an unlawful union-security agree-
ment would subject the employees to continued restraint and coercion
until such time as appropriate charges could be filed, processed, and
adjudicated. Such a time-consuming procedure might effectively
destroy the statutory right of employees to eliminate union-security
agreements disapproved by a majority of the employees, and would
be at war with the entire scheme and purpose of the Act. Moreover,.
to direct the dismissal of deauthorization petitions aimed at unlawful
union-security clauses would result in favoring unions which have
evinced a disregard for the provisions of Section 8 (a). (3) over labor
organizations which have fully conformed their union-security agree-
ments to the provisions of that section. We cannot conceive that
Congress intended such a result. We therefore hold that a deau-
thorization petition should not be dismissed where the union-security
clause involved exceeds the permissible limits of Section 8 (a) (3) of
the Act. Accordingly, the Bare case, insofar as it is inconsistent with
the result reached herein, is overruled. The Union's motion to dismiss
the petition on the ground that there was no showing that the union-
security agreement was made in conformity with Section 8 (a) (3) is,
therefore denied.
4. The Union and the Employer contend that the petition should be
dismissed because the unit described in the petition differs from the
contractual unit. The contract between the Union and the Employer
grants recognition to the Union for a unit of "employees. eligible to^
membership in the Union." The Petitioner's unit description reads.
"all production, shipping and maintenance workers," excluding "all
foremen and clerical and supervisory personnel." The record dis-
closes that supervisors and other classifications normally excluded
from production and maintenance units have been excluded from the
contractually defined unit. As the record fails to disclose that any
of the production, maintenance, or shipping employees are ineligible•
for membership in the Union, we find that all production, shipping,,
and maintenance employees at the Employer's plant in New York,,
ANDOR COMPANY, INC. 929
New York, excluding clerical employees and all supervisors as defined
in the Act, constitute a unit appropriate for the purposes of an election
under'Section 9 (e) (1) of the Act.
5. The Union urges that, if the Board directs a deauthorization
election in this proceeding and an affirmative deauthorization vote is
cast, the effect of such a vote should not immediately render the union-
security clause nugatory but should be deferred until the term of the
contract has run.
In Great Atlantic cf Pacific Tea Company 5 the Board disposed of
a similar contention. In that case, a deathorization petition was filed
shortly after the execution of a 2-year contract containing a union-
security provision. The union there involved contended, as does the
Union herein, that an affirmative deauthorization vote should expend
its force only after the 2-year contractual term had run. The Board
rejected this contention .6 In doing so, the Board reviewed the legis-
lative history of the 1951 amendments to Section 9 (e) (1) which
eliminated union-shop authorization elections and substituted in lieu
therefor provisions for elections to rescind the authority of unions
to make union-security agreements. The Board noted that the con-
gressional committees which reported on the 1951 amendments stated
that "While discontinuing the mandatory election procedure which
proved expensive, burdensome, and unnecessary, the bill continues to
safeguard employees against subjection to union shop agreements
which a majority disapproves." The Board reasoned that the author-
ity of a union to execute a union-security agreement was subject to,
an immediate condition subsequent (i. e., an affirmative deauthoriza-
tion vote) for, if employees under the pre-1951 statute could preclude
being subjected to a union-shop clause by failing to vote the union
such authorization, then it must follow that employees under the
post-1951 statute must be permitted by an affirmative deauthorization
vote immediately to revoke a union-security clause if the "safeguards"
against "subjection to union shop agreements" are to continue.
We have reviewed the A ct P decision and are convinced that the
reasons advanced in that decision for giving immediate effect to an
affirmative deauthorization vote are sound. Accordingly, if the em-
ployees in this proceeding cast an affirmative deauthorization vote;
it shall be taken to mean that the effectiveness of the union-security
clause in the contract between the Union and the Employer shall be
suspended immediately upon certification of the results of the election
to the Union and to the Employer.
[Text of Direction of Election omitted from publication.]
5 100 NLRB 1494.
8 Member Murdock dissented.
476321-58--vol. 119-60
930 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
MEMBER JENKINS , concurring :
I join the majority of my colleagues in their decision to overrule
the Bare case and direct an election herein. However, I am con-
strained to write this separate opinion because of ambiguous language
in the majority opinion herein that the Bare case is overruled "insofar
as it is inconsistent with the result reached herein." The majority
does not reverse the concept of Bare-that the words "made pursuant
to Section 8 (a ) (3) " as they appear in Section 9 (e) (1) are words
,of limitation and not of description or identification. The Bare
,case proceeded on this erroneous concept because the Board apparently
missed the essential meaning and purpose of a deauthorization elec-
tion. It is immaterial whether a union-security contract is valid
,or invalid-because it either conforms to or exceeds the limits per-
missible under the Section 8 (a) (3) proviso. It is not the agreement
which is the subject matter of this proceeding, but the authority to
.make the agreement. Unlike the majority herein (and that in Bare),
I construe the words "pursuant to Section 8 (a) (3)" in Section 9
(e) (1) as being words of identification and description and not words
,of limitation. In that section, Congress was merely identifying
:and describing the type of authority employees might rescind.
One of the difficulties in the interpretation of statutes is that the
-English language permits a single word to have two or more signifi-
,cations. Which of two different meanings is to be given a statute
must be determined from the context, the purpose and spirit of the
Act, the surrounding circumstances, and, above all, the intention of
the lawmakers. This primary consideration, the intent of Congress,
is to be judged as of the time the statute or amendment was enacted.
The cause or necessity or purpose of the amendment-the "..evil" to
be remedied-is to be considered. The cause or purpose of the
amendment to Section 8 (a) (3) and the enactment of Section. 9
(e) . (1) was .a practical one. It sought to obviate the necessity of
union authorization elections which statistics showed were invariably
won by the unions.
Under the amended proviso to Section 8 (a) (3), a union which
meets all the conditions of the proviso has de facto authority to con-
tract for a union-security clause which authority is automatically
.subject to the condition, subsequent in Section 9 (e) (1) : that it
might be rescinded. The provision to Section 8 (a) (3) confers a
grant of authority. Section 9 (e) (1) provides for rescinding that
authority. So it is, therefore, immaterial whether the contract entered
into pursuant to the exercise of the 8 (a) (3) authority is valid or
not. It is the authority identified and described in Section 8 (a)
{3) that is in question-not the contract.'
'Because of my position outlined above, I necessarily agree that a contract, even a
valid one , cannot be a bar to a deauthorization proceeding.
ANDOR COMPANY, INC. 931
I am further borne out in my interpretation of Section 9 (e) (1)
by words following "made pursuant to Section 8 (a) (3)," to wit
". . . alleging they desire that such authority be rescinded." [Em-
phasis supplied.] What authority? one may ask. The answer is
the authority set forth and described in the Section 8 (a) (3) proviso.
Congress had to identify the authority which is the subject matter
,of a Section 9 (e) (1) proceeding. The majority herein following the
concept of the Bare opinion would equate the words "pursuant to" with
"in conformity with"-language which the Board itself uses when
it finds a union-security clause to be valid. Therefore, for the reasons
.set forth herein, I disagree with my colleagues in their application
.of the Bare concept to the words "pursuant to Section 8 (a) (3)."
With respect to that part of the A cQ P doctrine rightly con-
firmed herein by the majority, as to the effect of a deauthorization
proceeding, I would hold that in the event of a vote rescinding
the Union's authority and upon certification of such results to the
parties, the maintenance of the union-security clause by operation of
law is abrogated. This is by reason of the condition subsequently
imposed by the provisions of Section 9 (e) (1). The authority
having been revoked, the contract provision is defeated. I agree
with the majority that this was the intent of Congress.
I would further hold that because of the amended proviso to Sec-
tion' 8 (a) (3), the Union would not be able to enter another union-
security contract within the year of the deauthorization election.
Congress when it amended the proviso by abolishing the necessity
for a union authorization election created a new condition precedent
to the exercise of the authority, reading as follows :
... and (ii) unless following an election held as provided in
section 9 (e) within one year preceding the effective date of
such agreement, the Board shall have certified that at least a
majority of the employees eligible to vote in such election have
voted to rescind the authority of such labor organization to make
such an agreement.
Therefore, where there is a current union-security clause and a
Section 9 (e) (1) election results in a vote to rescind the union's author-
ity, the current clause becomes void as a matter of law and the union
is effectively prevented by reason of the above condition in the proviso
from entering into another such clause within the year of the election.
For the above reason, I do not agree with our dissenting colleague
that the Union could sit down and bargain for another security clause
the day after the election.
I do agree with him that if the union-security clause in the current
contract is invalid, charges of violations of Section 8 may be filed.
932 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
However, as we all know, charges sometimes take a long and tortuous
course and it might well be the contract could expire before an
effective Board order may be enforced. Our dissenting member, in
my opinion, fails to distinguish between the absolute right of em-
ployees to rescind the grant of authority conferred by Section 8 (a)
(3) and the right to file charges for violation of Section 8 by reason of
invalid union-security clauses. These are different rights provided
by Congress and each must be applied as the occasion arises. They
are not mutually exclusive nor did Congress so intend. In the one
instance, the deauthorization election provides a direct and speedy
relief instanter-the other, under Section 10, provides a remedy for
past violations of Section 8 and restraint against such in future.
One confers a right-the other provides a remedy for violation of
a right.
MEMBER MURDOCK, dissenting :
The basic issue in this case is whether the Board may conduct a
deauthorization election under Section 9 (e) (1) of the Act where
a union-security provision in the contract between a. union and the
employees' employer does not conform to the requirements of Section
8 (a) (3). My colleagues find that a deauthorization petition may be
maintained even though the union-security provision exceeds the per-
missible limits of Section 8 (a) (3). They also find that the effect
of an affirmative deauthorization vote immediately renders the union-
security provision nugatory upon certification of such results to the
union and the employer. Because I believe that these findings have
no support in the statute, I must dissent.
Section 9 (e) (1) of the Act authorizes the Board to direct a de
authorization election upon the filing of a petition with the. Board
"by 30 per centum or more of the employees in a bargaining unit
covered by an agreement between their employer and a labor organ-
ization made pursuant to section 8 (a) (3), . . . alleging they de-
sire that such authority be rescinded. . . ." [Emphasis supplied.]
My colleagues and I are in agreement that the instant contract, con-
taining a union-security provision which requires the payment of as-
sessments as a condition of continued employment with the Employer
herein, was not "made pursuant to section 8 (a) (3)" as "required
under Section 9 (e) (1) of the Act. We part company, however,
when the majority concludes that this deauthorization petition may
nevertheless be maintained despite the statute's unmistakably clear
direction that an agreement "made pursuant to section 8 (a) (3)"
must exist in order for the Board to conduct a deauthori'zation
election.
ANDOR COMPANY, INC. 933
In the Bare case, which the majority here has chosen to overrule,
a Board majority marshalled the reasons why the Congress, in per-
fecting the 1951 amendments to Section 9 (e) (1) of the Act, could
not have intended that the Board entertain deauthorization petitions
where union-security clauses in a contract do not conform to the
provisions of Section 8 (a) (3). The majority there noted that the,
legislative history of Section 9 (e) (1) indicated a congressional pur-
pose to safeguard employees against subjection to loss of employment
through enforceable or effective union-security provisions by afford-
ing employees a ready means by majority vote to rescind the authority
to enter into such agreements. Where a collective-bargaining con-
tract contains a union-security clause which exceeds the permissible
limits of Section 8 (a) (3), there is no enforceable or effective union-
security provision in existence under which employees could lawfully
be discharged and hence there is no need for the safeguard of a de-
authorization election. As the majority in Bare stated, any restrain-
ing effects which the existence or enforcement of an unlawful union-
security agreement might have could effectively be removed under
the remedies afforded by Section 8 (a) (2), 8 (a) (3), and 8 (b) (2)
,of the Act.
Practical considerations further support the majority's determina-
tion in Bare. If the Union in this case places its unlawful union-
security agreement before the employees in an election and a majority
vote against deauthorization, the Union would have the benefit of such
a vote to exert pressure on the Employer to continue the present il-
legal agreement as well as to negotiate and execute future collec-
tive-bargaining contracts containing such clauses. Unless the em-
ployees file appropriate charges (a course which I would believe
Congress intended they pursue in the first instance) they would
thereafter be subjected to the continued coercive effect of the illegal
clause for a period of at least a year inasmuch as the Board is pre-
cluded by Section 9 (e) (2) from conducting another deauthoriza-
tion election for a period of 12 months from the date of the previous
election. I cannot conceive that Congress intended to bestow such
a benefit upon unions which execute illegal union-security agreements
when, at the same time, Congress has afforded employees an effective
remedy under Section 8 (a) (2), 8 (a) (3), and 8 (b) (2) by which
they may rid themselves of the coercive effect of such agreements
without any attendant advantage to the offending unions. In my
opinion, this is precisely why Congress provided that a deauthoriza-
tion petition may be maintained only where the union-security pro-
vision in the contract covering the petitioning employees was "made
pursuant to section 8 (a) (3)."
934 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
There is yet another reason why I believe my colleagues are wrong-
in entertaining this petition and, in so doing, overruling Bare. Let
us consider the effect of an affirmative deauthorization vote in a case-
involving an illegal union-security agreement and the effect of a
charge filed under Section 8 of the Act. My colleagues hold that, if
the employees cast an affirmative deauthorization vote in the forth-
coming election, the effect of such vote will be immediately to remove-
the union-security clause from the contract. My colleagues do not
indicate the length of time in which the Union's authority to bargain
for another such clause is suspended. Conceivably, the Union could
sit down with the Employer the day following certification of the-
results of the deauthorization election and bargain for and execute-
another illegal union-security agreement. If this be the case, an
affirmative deauthorization vote would afford the employees a hollow,_
meaningless victory. Or, if the majority herein would foreclose-
bargaining for a union-security clause for the remainder of the term'
of the contract or for a period of a year from the election, the em-
ployees still could not rest assured that the Union would not obtain
another illegal union-security agreement at the conclusion of those,
periods. On the other hand, if appropriate charges are initially filed
to remove the unlawful agreement, both the Union and the Employer
could then be perpetually enjoined by the Board from entering into-
or giving effect to such unlawful agreements. If Congress intended'
that employees are to be provided with any safeguards against sub-
jection to unlawful union-security clauses, it seems patently clear-
that Congress intended to provide effective ones. Contrary to my
colleagues, I do not believe that the direction of a deauthorization
election in these circumstances accomplishes this congressional,
objective.
As I would dismiss the petition in this case in accord with precedent
on the ground that the union-security agreement does not conform,
to the requirements of Section 8 (a) (3) for the maintenance of a
deauthorization election, that disposes of the case as far as I am con-
cerned. I note, however, that the majority reaffirms the A & P case-
in rejecting the Union's contention that an affirmative vote in the-
deauthorization election should not have the effect of immediately
rendering nugatory the present union-security clause. I would not
wish a failure to mention the majority's reaffirmance of the doctrine-
of the A. & P case to indicate an acquiescence in the reaffirmance of'
the doctrine of that case in the context in which it was laid down-,,v
valid union-security clause. I strongly dissented in that case. Ob-
viously, however, the same considerations of injustice to the union
CIlAPMAN VALVE MANUFACTURING COMPANY 935
which I pointed out in my dissent in the A c P case are not equally
applicable to the instant case where an invalid union-security clause,
is involved.
Chapman Valve Manufacturing Company and International
Union of Electrical , Radio and Machine Workers, AFL-CIO,.
Petitioner. Case No. 1-RC-5002. December 14, 1957
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 Thomas E. McDonald,
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 [Chairman Leedom and Members Murdock and Bean].
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 organizations involved claim to represent certain
employees of the Employer.
3. Relying on Essex County News Co.,' the Employer contends
that its current contract with the Petitioner covering production and
maintenance employees bars the instant petition because of the con-
tractual exclusion of the employee classifications now sought by the
Petitioner. However, contrary to the situation in that case, the con-
tract here contains no promise, express or implied, that the Petitioner
will refrain from seeking to represent the employees involved here.
Moreover, the Board has held that the exclusion of a group of
employees from a contract unit does not constitute a waiver by the
contracting union of its claim to represent these employees in the
future as a part of the contract unit or as a separate unit .2 Accord-
ingly, we find that the current contract does not bar a present deter-
mination of representatives in the unit of employees sought.
We find that a question affecting commerce exists concerning the
representation of employees of the Employer within the meaning of
Section 9 (c) (1) and Section 2 (6) and (7) of the Act.
4. The Petitioner seeks to represent time-study and methods men,
the ditto operators who work with the methods men, and the clerks
76 NLRB 1340.
$ United States Gypsum Company, 107 NLRB 122, 125.
119 NLRB No. 123.