Decker Clothes Inc.

National Labor Relations Board - Board Decisions

May 11, 1949

83 N.L.R.B. 484 (N.L.R.B. 1949)

Ili the Matter of DECHER CLOTHES' INC., EMPLOYER amd AMALGAMATED
CLOTHING WORHEIis OF AMERICA, CIO; PETITIOI4ER
Cam, No. 9-RC-332.-Decided May 11, 1949 .
DECISION - ..
,4 H ;11
AND
ORDER
Upon a petition duly filed, a hearing was held before Alan A.
Bruckner, 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
National Labor Relations Act.
2. The Petitioner and United Construction Workers, District 50,
U. M. W. A., herein called the Intervenor, are labor organizations
claiming to represent employees of the Employer.
3. The question concerning representation :
The Employer and Intervenor contend that their contract covering
the employees whom the Petitioner seeks to represent, signed June
24, 1948, and effective to September 1, 1949, is a bar to this proceeding.
The petition herein was filed December 6, 1948. The Petitioner con-
tends that the contract is not a bar because of expansion within the
unit, and for the further reason that the contract is invalid because
its dues check-off clause violates the Act.
The Employer began operations in February 1948 at Mount Hope,
a temporary location 8 miles from its present place of business in
Beckley, West,Virginia. Upon opening the Mount Hope plant, the
• Employer publicly announced that this was a temporary location and
that when the move to the Beckley plant was accomplished its work-
ing complement would be expanded to 270 or 300 employees. By
March 1948, the Employer had a force of approximately 100 em-
ployees, which represented its full working complement at the time
the contract was executed in June and until the transfer to the present
I The Intervenor's motion to dismiss the petition on the ground that the Petitioner
failed to establish, sufficient interest is denied, as the showing of interest is an adminis.
trative device of the Board and not subject to direct or collateral attack. Hatter of 0. D.
Jennings & Company, 88 N. L. R. B. 518.
83 N. L. R. B., No. 77.
484
DECKER CLOTHES, INC. 485
location in September. Thereafter the force was expanded to its
contemplated maximum size of 270 employees. Initially, the Employer
manufactured only men's trousers and experimented with the design
of other ' garments . Now, in addition to trousers, it manufactures
coats, vests, and pilot suits. While there are a number of different
operations and types of machinery employed in the new plant, the
basic operations in the production of these garments remain the same.
Although there has been a substantial increase in the size of the
unit since the time when the contract was signed, the record discloses
that there has been no material change in the scope and character of
the unit: We believe that the employees who constituted the Em-
ployer's working force at that time were representative of the employ-
ees currently within the unit. Accordingly, we find no merit in the
Petitioner's contention that, because of expansion in the unit, the
contract is no longer operative as a bar to an election.
As to the ' Petitioner's contention that the contract is invalid, the
record discloses that Article XI provides for the deduction of union
dues from the wages of employees who have executed and delivered
written assignments to the Employer. The Petitioner asserts that the
contractual provision is nevertheless unlawful because it does not
further provide that such assignments shall be for 1 year or the term
of the contract, whichever is the lesser. The record shows, however,
that the assignments which have been and are being executed by the
employees fully conform to the requirements of the Act 2. -
Under all the circumstances,'we are satisfied that the assignment-of-
wages clause contained in the contract does not constitute an unlawful
agreement. It is clear from the terms of the contract and the-actions
of the' parties pursuant thereto that they contemplated the ' delivery
of lawful written assignments by employees from whose wages dues
were to be deducted. At best, the absence of any reference to the dura-
tion of the assignments renders the contract ambiguous as to the length
of time thee ,parties intended these assignments to run. We shall
therefore, under usual rules of contract construction,3 adopt a meaning
2 Section 302 of the Act provides that the restrictions contained therein against pay-
ment or delivery of money by employees to their employer shall not be applicable :
with respect to money deducted from the wages of employees in payment of member-
ship dues in a labor organization : Provided, That the employer has received from
each employee on whose account such deductions are made , a written assignment
which shall not be irrevocable for a period of more than one year , or beyond the termi-
nation date of the applicable collective agreement , whichever occurs sooner. [ Italics
supplied.]
"An interpretation which makes the contract or agreement lawful will be preferred
over one which would make it unlawful." Williston on Contracts , revised edition, Section
620.
844340-50-vol. 83-32
486 DECISIONS OF NATIONAL ,LABOR:, RELATIONS BOARD
eonsisteilt'with legality, i..e., that the parties.intended the ;wage assign-
ments to'be limited to the period set forth in the statute." .
Accordingly, as the petition was filed, nearly 9 months before the
expiration of the June 24, contract, and approximately,4 months
now remain of its term, we find that the contract is a bar to a present,
determination of representatives. We shall dismiss the petition with-
out prejudice, however, to the filing of anew petition at an appropriate'
time before the contract's terminal date. - . . - ' •
ORDER
Upon the basis of the entire record in 'this case, the National Labor
Relations Board hereby orders that the petition filed herein be, and
it hereby is, dismissed without prejudice.
CHAIRMAN HERZOG and MEMBER, HOUSTON, dissenting :, , .
While we concur with our colleagues in their holding that the con-
tract is valid, we do not agree that-the. contract, signed in contempla-
tion of a more than 100 percent expansion in the unit, is a bar to an,
election. We believe that the expansion of the, unit from 100 to, 270
employees, together with the changes in. the Employer's operations,
are sufficient to. warrant the holding of, an, election at, this time. The
Board held in Matter of Champion Motors Company, 72 N. L. R. B..
436, that expansion from 154 employees at the time, of the signing,of
a contract to 351 employees at the time of hearing on a representation
petition before the Board, was sufficient reason for directing an' elec-
tion during the contract term. In the case. before us the percentage
of, expansion is even greater-, , Accordingly, we would And, that the
contract of June 24, 1948,, is not a -bar.to a present determination of,
representatives.
.!The contract in this case is distinguishable from that in Matter of C. Hager'd Sons
Hinge Manufacturing Co., 80 N. L. R. B. 163, relied upon by the Petitioner. In that case
the contract called without qualification for the deduction of dues from wages . We con-
strued this as a compulsory check-off provision which, by its terms, compelled the em-
ployer to deduct dues even without delivery of -lawful assignments from employees. This
Is clearly proscribed by the Act.
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