Herff Jones Co.

National Labor Relations Board - Board Decisions

Jan 16, 1952

97 N.L.R.B. 1070 (N.L.R.B. 1952)

1070 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Order
Upon the basis of the entire record in the proceeding, the National
Labor Relations Board hereby orders that the petitions in Cases
Nos. 4-RC-988, 4-RC-1030, and 4-RC-1041 be, and they hereby are,
dismissed.
HERFF JONES COMPANY and INTERNATIONAL UNION, UNITED AUTO-
MOBILE, AIRCRAFT AND AGRICULTURAL IMPLEMENT WORKERS OF
AMERICA, CIO, PETITIONER. Case No. 35-RC-563. January 16,
1952
Decision and Order
Upon a petition duly filed under Section 9 (c) of the National
Labor Relations Act, a hearing was held before Robert Volger, 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 Houston and Styles].
Upon the entire record in this case, the Board finds :
1. Employer 1 is engaged in commerce within the meaning of the
Act.
2. The labor organizations involved claim to represent employees
.of the Employer.2
3. No 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, for the following
reasons:
The Independent has represented the employees here involved for
many years. Its latest contract with the Employer was executed on
August 3, 1950, effective from July 1, 1950, to June 30, 1955, and sub-
ject to reopening on June 30, 1952, or yearly thereafter upon 90 days'
notice. This contract was amended on August 15, 1951, by deleting
a provision for the payment by the Employer to "all members of the
Union" for 1 holiday at Christmas, and providing instead for the
payment for 6 holidays to "all employees."
The Employer and the Independent assert that their current con-
tract is a bar to this proceeding. The Petitioner and the AFL con-
1 The name of the Employer appears in the caption as amended at the hearing.
2 Permission to intervene was granted to Independent Jewelry Workers Union , herein
called the Independent , on the basis of its contractual interest , and International Jewelry
Workers Union, AFL, herein called the AFL, upon its showing of a sufficient interest in
the proceeding. Retail, Wholesale and Department Store Uri10fl, CEO, Willeh R& O inter-
vened, was permitted to withdraw its intervention without objection.
97 NLRB No. 165.
HERFF JONES COMPANY 1071
tend that no bar exists because this contract, particularly as read
before the August 15 amendment, is a "members only" agreement and
accords unlawful preferential treatment to members of the
Independent.
The Petitioner filed its original petition herein on August 6, 1951.
This petition, which was amended in minor respects on September
13, 1951, sought a unit limited to the approximately 44 employees in
the Employer's tool and die department. However, on September 27,
1951, the Petitioner again amended its petition by changing the de-
scription of the requested unit to one embracing the approximately
300 production and maintenance employees of the Employer, which
unit was agreed by all the parties to be appropriate. As the amended
petition of September 27 substantially changed the previously re-
quested unit, the filing of such amended petition constituted, in effect,
the making of a new claim and the filing of a new petition.' The
prior amendment of the existing contract by the Employer and Inde-
pendent on August 15 was therefore timely and the question is whether
this contract, as amended, constitutes a bar to a present determination
of representatives 4
In support of their contention that the amended contract is for
"members only" and is unlawful, the Petitioner and the AFL rely on
the preamble and Section I, subsection 5. It is provided in the
preamble :
That the "Company" agrees to bargain with the "Union," H. J.
Herff, V. W. Ascher and W. L. Lewis representing the "Company"
and the Board of Relations Committee of the "Union" represent-
ing the members' in all collective bargaining.
Section I, subsection 5 provides :
In computing the weekly wage, the "Company" will add 10°fo
to the weekly salary or wage of each and every member, excluding
the tool and die department.
In our opinion, the references to "members" in these clauses are
ambiguous. There is no clear indication in the agreement that this
word was intended to be restricted to members only of the Independ-
ent, rather than members of the production and maintenance group,
as contended by the Independent and Employer. Significantly, the
only specific reference in the contract to "members of the Union" was
deleted by the August 15 amendment and a clause conferring benefits
on "all employees" was substituted therefor. Other clauses also sug-
gest that the contract was applicable to all employees regardless of
whether they were union members. For example, certain seniority
8 Dunbar G lass Corporation, 77 NLRB 742; Hyster Company, 72 NLRB 937.
4 Cf. Avco Manufacturing Corporation, New Idea Division, 97 NLRB 647.
1072 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
rules apply to "any employee"; paid vacations are provided for "each
employee" who has been with the Employer for a prescribed period ;
an employee-participating bonus pool is to be shared by "all straight
time employees" fulfilling certain requirements ; and, in regard to the
discharge of "employees," the contract provides for conference if "any
man in any department" is believed to have been discharged for in-
sufficient cause. Furthermore, wage rates are established for all job
classifications and provision is made to grant leave of absence to "any
person." As the reference to "members," in the light of the entire
contract, is ambiguous, we find it necessary to look to the practices of
the parties in order to determine their intent.5
The record contains uncontradicted testimony by individuals who
participated for the Employer and the Independent in the contract
negotiations that the contract was executed on behalf of, and each
provision therein was intended to apply to, all production and main-
tenance employees. The'record further shows that, in operation, all
provisions were applied to members and nonmembers alike. In view
of the foregoing, and the entire record, we find that the contract, as
amended, is not a members-only contract and contains no unlawful
preferential treatment of members of the Independent.
We find therefore that the existing contract constitutes a bar to a
determination of representatives at this time. Accordingly, we shall
dismiss the petition.
Order
IT IS HEREBY ORDERED that the petition filed herein, be, and it hereby
is, dismissed.
s Knife River Coal Mining Company, 96 NLRB 1 ; Newton Investigation Bureau, 93
NLRB 1574.
BETHLEHEM STEEL COMPANY , SHIPBUILDING DIVISION and INDUSTRIAL
UNION OF MARINE & SHIPBUILDING WORKERS OF AMERICA, CIO,
PETITIONER . Case No. 1-RC=9298. January 16, 19500
Decision and Direction of Elections
Upon a petition duly filed under Section 9 (c) of the National Labor
Relations Act, a hearing was held before Robert S. Fuchs, hearing
officer. The hearing officer's rulings made at the hearing are free
from prejudicial error and are hereby affirmed.'
I Office Employees International Union , AFL, hereinafter called Office Employees, moved
to intervene at the hearing on the basis, in substance , of (1) the showing of interest made
by American Federal of Technical Engineers , AFL, hereinafter called Technical Engineers,
in a group of draftsmen ; ( 2) Office Employees ' claimed jurisdiction over certain of the
employees involved in this proceeding ; and (3 ) the alleged difficulty of making a showing
97 NLRB No. 176. -