Barium Steel and Forge, Inc.

National Labor Relations Board - Board Decisions

Feb 8, 1950

88 N.L.R.B. 564 (N.L.R.B. 1950)

In the Matter of BARIUM STEEL AND FORGE, INC., EMPLOYERS and,
INTERNATIONAL BROTHERHOOD OF BLACKSMITHS, DROP FORGERS &
HELPERS, AFL, PETITIONER
Case No. 8-RC-579.-Decided February 8, 1950
DECISION
AND
ORDER
Upon a petition duly filed, a hearing in this case was held on De-
cember 2, 1949, at Canton, Ohio, before Bernard Ness, hearing officer.
The hearing officer's rulings made at the hearing are free from
prejudicial error and are hereby affirmed.'
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'2
3. The question concerning representation :
The Petitioner seeks to represent the production and maintenance
employees at the Employer's Canton, Ohio, plant. On May 26, 1947,
the Employer and the Intervenor executed a 2-year contract covering
such employees.3 This contract contained the following union-
security provision :
... The Corporation agrees that a consideration of employ-
ment in the Corporation Plant shall be membership in the Union
after a thirty- (30) day period from date of hiring for all em-
ployees except clerical workers, executives, superintendents, fore-
1 By letter of December 9, 1949, the Petitioner requested permission to adduce additional
evidence. In this request, the Petitioner did not refer to the nature of such evidence nor
indicate in what respect the evidence might be relevant. Accordingly , the request is denied.
Moreover , we are of the opinion that the record before us is adequate for the disposition of
the issue considered in paragraph 3, below.
2 The motion of United Steelworkers of America , CIO, herein called the Intervenor, to
intervene for itself and its Local 2759 was granted by the hearing officer without objection.
s The contract was entered into by the Intervenor on behalf of itself and the members of
its Local 2759.
88 NLRB No. 104.
564
BARIUM STEEL AND FORGE, INC. 565
men and watchmen. New employees of production and mainte-
nance shall become members at the expiration of their proba-.
tionary period .. .
On August 10, 1948, the Employer and the Intervenor executed a
supplemental agreement in which they amended certain parts of the
1947 contract : (1) The expiration date of the contract was extended
from May 26, 1949, to May 26, 1950; 4 (2) wage rates were increased;
and (3) the above-quoted union-security provision was amended by
the addition of the following paragraph thereto : r,
... Above provision shall remain in full force and effect
until May 26, 1949 and shall continue thereafter under the agree-
ment as amended, only if and when effective in accordance and
consistent with provisions of Federal Law. .. .
The Petitioner did not assert its representation interest at the Em-
ployer's plant until October 1949. No election under Section 9 (e)
(1) of the Act has been held for the purpose of authorizing the
Employer and the Intervenor to enter into a union-security agreement-
The Intervenor contends that its contract with the Employer is a
bar to this proceeding. On the other hand, the Petitioner argues that
the presence of the unauthorized union-security provisions prevents
the contract from operating as a bar. The Employer takes,a neutral
position on this issue.
A contract which includes an unauthorized union-security provision
does not, under the amended Act, operate as a bar to a representation
proceeding .6 Nor will the inclusion of a saving clause in the contract
alter this result if the clause does not expressly defer the application
of the union-security provision.7 However, a contract does operate as
a bar if the saving clause makes it clear that the union-security
4 As no rival representation claim was made before May 26, 1949, the supplemental
agreement of 1948 was not, as contended by the Petitioner , subject to our premature exten-
sion rule.
'The legal effect of the supplemental agreement of August 10, 1948, was to make the
retention of the union -security provision unlawful from that date to May 26, 1949, and a
petition filed during this period would have been timely. The Broderick Company, 85
NLRB 708. Here, however , the petition was not filed until 5 months after the union-
security provision had, as we find below, become inoperative.
9 C. Hager & Sons Hinge Manufacturing Company, 80 NLRB 163.
7 Reading Hardware Corporation , 85 NLRB 610 ( where the saving clause provided
that the union -security provision should be binding only insofar as the law of the United
States and the Commonwealth of Pennsylvania allows it to perform ) ; Unique Art Manufac-
turing Co ., 83 NLRB 1250 ( where the clause stated that any provisions of the contract con-
trary to any Federal or State Law should be null and void ) ; and Lykens Hosiery Mills,
Inc., 82 NLRB 981 (where the clause provided that ". . . Loss of membership shall be
cause for discharge only under the law as it exists at the time the request is made by the
Union. . . .
566 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
provision is not to take effect until such time in the future as the
legality of the union-security provision is established.'
In the case now before us, we are of the opinion that the applica-
tion of the union-security provision was effectively deferred after
May 26, 1949, and that the presence of such deferred union-security
provision in the contract after May 26, 1949, does not prevent the con-
tract from operating as a bar. In the Wyckoff case,9 decided on
November 9, 1949, where the contractual history was the same as it is
here, the 1948 supplemental agreement provided that the union-secu-
rity provisions were to take effect on May 31, 1949, the expiration date
of the original contract,
... or at any time thereafter during the life of this agreement,
but only if and when they may take effect in accordance and con-
sistent with provisions of Federal Laws. .. .
The petition was filed after the original contract term had expired.
We held that the contract was a bar to a present determination or
representative as it ". . . clearly discloses the parties' intent to defer
the application of their union-security agreement until such time as it
might lawfully become effective. . . ." We see no distinction between
the contractual provisions in the Wyckoff case and this one. The sup-
plemental agreement here provides that the union-security provision
is to remain in effect after May 26, 1949, the original contract's expira-
tion date, "... . only if and when effective in accordance and consistent
with provisions of Federal Law." [Emphasis supplied.] The appli-
cation of the union-security provision after May 26, 1949, is clearly
deferred until the provision may be lawfully effective.
In view of the foregoing, and because the petition herein was not
filed until October 24,1949, at a time when the application of the union-
security provision had been effectively suspended,l° we find that the
existing contract in this case is a bar to the present determination of
representatives. We shall therefore dismiss the petition.
ORDER
Upon the basis of the foregoing findings of fact and upon the
entire record in this case, the National Labor Relations Board hereby
orders that the petition filed herein be, and it hereby is, dismissed.
8 Schaefer Body, Inc., 85 NLRB 195 (contract provided that union-security provision was
not to be effective until after the holding of an authorization election).
9 Wyckoff Steel Company, 86 NLRB 1318.
10 See footnote 5, supra.