Freezmor Metal Products Co., Inc.

National Labor Relations Board - Board Decisions

Aug 31, 1959

124 N.L.R.B. 803 (N.L.R.B. 1959)

FREEZMOR METAL PRODUCTS CO., INC. 803
Freezmor Metal Products Co., Inc. and Local 485, International
Union of Electrical , Radio and Machine Workers, AFL-CIO,
Petitioner. Case No. 2-RC-9868. August 31, 1959
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 I. L. Broadwin, 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.
3. The question concerning representation :
The Intervenor, Local 422, International Production, Service and
Sales Employees Union, asserts as a bar to this petition its contract
with the Employer which was signed on July 29, 1958, and which
will expire on July 6, 1960. The Petitioner contends that this contract
cannot bar an election because it contains a union-security provision
which has been given retroactive application. The Employer takes
no position.
Sometime prior to 1958, the Intervenor succeeded to a contract
which a sister local had executed with the Employer. This contract
expired on July 6, 1958. On July 29, 1958, the Employer and the
Intervenor entered into a new agreement, here asserted as a bar, which
contained a union-security clause. This contract also contained the
following clauses :
Article 25. This agreement shall be binding upon the parties
hereto, their respective successors or assigns, and is retroactive to
and effective July 7, 1958.
Article 26. This agreement shall be in full force and effect
from the date of execution to July 6, 1960.
At the hearing, the Intervenor sought to establish that the retroactive
feature of article 25 was intended solely to insure that the employees
covered by the agreement would receive wage increases retroactive to
July 7, 1958, the terminal date of its prior contract, and was not to
apply to the union-security clause. Rather, the Intervenor asserted
that the effective date of the union-security provision was governed
by article 26. The hearing officer admitted evidence on this issue.
In its Keystone decision,' the Board announced that "contracts con-
taining ambiguous union-security provisions which may be interpreted
1 Keystone Coat, Apron & Towel Supply Company, 121 NLRB 880.
124 NLRB No. 101.
804 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
as either lawful or unlawful because the language employed is not
clear" shall no longer be treated as bars to elections. In the instant
case, the validity of the union-security clause is rendered ambiguous
because of the language employed in the foregoing articles. Thus, on
the one hand, if the provisions of the contract, including the union-
security clause, are made retroactive to July 7, 1958, as seemingly con-
templated by article 25, then the latter clause is tainted with illegality
because it does not afford employees the statutory grace period in
which to decide whether they wish to join the Intervenor? On the
other hand, if the contractual provisions are deemed to take effect
prospectively from July 29, 1958, as seemingly intended in article 26,
then the union-security clause would be valid. In view of this ambi-
guity, we find, in accordance with the rule in Keystone set forth above,
that the contract cannot operate as a bar.
The hearing officer admitted extrinsic evidence to resolve the am-
biguity concerning the validity of the union-security provision. In
the Keystone decision, the Board stated that "no extrinsic evidence
will be admissible in a representation proceeding for the purpose of
determining the validity of a union-security or checkoff clause in a
contract for bar purposes." The reason for this rule is explicated at
length in that decision. In sum, it is designed to eliminate protracted
representation hearings on subjects which are properly encompassed
by adversary unfair labor practice proceedings, and to inject sim-
plicity in this area of contract-bar rules. While the Board in Keystone
did not specifically address itself to the question of what disposition
would be made of such extrinsic evidence if it had been erroneously
admitted into the record of a representation proceeding, it seems mani-
festly clear that the salutary purpose of this aspect of the Keystone
decision would be thwarted if the Board were to consider such evi-
dence once admitted. To hold otherwise would, in our opinion, invite
practices which are not conducive to the orderly resolution of repre-
sentation proceedings and would place a premium upon the successful
introduction of evidence which does not properly belong in such pro-
ceedings. Accordingly, we shall not consider the extrinsic evidence
which was received in this case to resolve the ambiguity concerning
the validity of the union-security clause involved, nor shall we con-
sider such evidence in future proceedings of this kind.
As we conclude that the Intervenor's contract is not a bar, we find
that a question concerning representation exists within the meaning
of Section 9(c) (1) and Section 2(6) and (7) of the Act and we shall
direct an election herein.
4. The parties stipulated, and we agree, that the following em-
ployees of the Employer constitute a unit appropriate for the purposes
of collective bargaining within Section 9 (b) of the Act :
2 See General American Aerocoach , et al., 90 NLRB 239, 240.
DUNES MOTEL 805
All production, maintenance, shipping, and receiving employees
at the Employer's establishment in New York, New York, excluding
office clerical employees, guards, and supervisors as defined in the Act.
[Text of Direction of Election omitted from publication.]
Dunes Enterprises, Inc., d/b/a Dunes Motel s and Hotel Em-
ployees Union Local 255, AFL-CIO, Petitioner. Case No.
1?-RC-513. August 31, 1959
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 Herbert B. Mintz, hearing
officer. The hearing officer's rulings made at the hearing are free
from prejudicial error and are hereby affirmed.2
Pursuant to the provisions of Section 3 (b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Members Rodgers, Jenkins, and
Fanning].
Upon the entire record in this case the Board finds :
1. The parties did not stipulate that the Employer's operations
affect commerce within the meaning of the Act. The Employer is a
Florida corporation which operates a resort motel in Miami Beach,
Florida. Guests at the motel are provided with rooms for rent, dining
and barroom facilities, and other customary hotel services. The Em-
ployer's annual gross revenues exceed $500,000. Its expenditures for
advertising in out-of-State newspapers amount to more than $10,000
a year. The Employer maintains a reservations office in New York
City. The Employer participates in "package deals" with major
airlines. The Employer purchases some goods directly from out-of-
State sources, and it purchases from local sources, whiskey, valued in
excess of $5,000, which is manufactured in States other than Florida.
At certain times of the year over 50 percent of the Employer's guests
come to the motel from outside Florida. It appears that less than 75
percent of its guests remain at . the motel for periods of a month or
more.
On the basis of the foregoing, we find that the Employer's motel
operations affect commerce within the meaning of the Act, and that it
will effectuate the policies of the Act to assert jurisdiction herein.'
1 The name of the Employer has been corrected to reflect the testimony at the hearing
that Dunes Motel is a " trade name" used by Dunes Enterprises, Inc.
' The hearing officer rejected an offer of proof as hearsay. This matter is discussed
infra, under paragraph 4.
8 Floridan Hotel of Tampa, Ina ., 124 NLRB 261; Member Jenkins concurring in part
and dissenting in part and . Member Fanning concurring specially.
124 NLRB No. 100.