Hess, Goldsmith & Co., Inc.

National Labor Relations Board - Board Decisions

Dec 10, 1952

101 N.L.R.B. 1009 (N.L.R.B. 1952)

HESS, GOLDSMITH & CO., INC. 1009
riod preceding the election be eligible to vote in the election. The re-
quested eligibility formula differs somewhat from that adopted by the
Board in recent decisions 9 for employees, like the cameramen and
soundmen, employed on an irregular basis from a pool of available
trained employees. However, in view of the fact that none of the par-
ties objects, and under the special circumstances of this case,10 we find
that the eligibility formula advanced by Local 666 is an equitable one.
Accordingly, all cameramen and soundmen 11 who have been employed
for 3 or more days by the Employer within the 13-month period im-
mediately preceding the date of this Decision and Direction of Elec-
tion shall be eligible to vote in the election.
Order
As we have found that the unit petitioned for in Case No. 14-RC-
1915 is inappropriate for purposes of collective bargaining, that peti-
tion is herewith dismissed.
[Text of Direction of Elections omitted from publication in this
volume.]
9 Trans film, Incorporated, 100 NLRB 78 ; Society of Independent Motion Picture Pro-
ducers, 94 NLRB 110; Television Film Producers Association , 93 NLRB 929.
11 Although soundmen are classified as stagehands , they may, if they do soundman work
10 See footnote 4.
and meet the eligibility requirements of paragraph 5, vote in the cameramen and sound-
men voting group. The Ocala Star Banner, 97 NLRB 384.
HESS, GOLDSMITH & Co., INC., ATWATER DIVISION and UNITED TEXTILE.
WORKERS OF AMERICA , AFL, PETITIONER . Case No. 4-IBC-1623.
December 10, 1952
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 Harold Kowal, a
hearing officer of the National Labor Relations Board. The
hearing officer's rulings made at the hearing are free from prejudicial
error and are hereby affirmed
I Concerning our ruling on the admission of certain evidence, see footnote 4, below.
At the hearing the Textile Workers Union of America , CIO, the Intervenor, filed a
motion to dismiss the petition on grounds relating to the compliance status of the Peti -
tioner and its Local 998. The fact of compliance by a labor organization which is
required to comply is a matter for administrative determination and is not litigable by
the parties . Moreover , the Board is administratively satisfied that the Petitioner and
its local are in compliance. See Sunbeam Corporation, 94 NLRB 844, 98 NLRB 525;
Swift & Company, 94 NLRB 917; compare Highland Park Manufacturing Company, 71
S. Ct. 489. It appears that Petitioner' s Local 998, which will represent the employees
requested , achieved compliance as a new local during the course of the hearing. We
deny the Intervenor 's motion to dismiss for failure to comply at the time of filing. See
United States Gypsum Company , 100 NLRB 1100.
101 NLRB No. 173.
1010 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1. The Employer is engaged in commerce within the meaning of the
National Labor Relations Act.
2. The labor organizations involved claim to represent employees
of the Employer.
3. A 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.
The Employer and the Intervenor have contracted since 1948 for
employees of the Employer's Atwater Division, at its Blackman Street,
Wilkes-Barre, Pennsylvania, plant and its Plymouth, Pennsylvania,
plant. Of record in this proceeding is the parties' contract entered
into as of August 1, 1948,2 which the Intervenor urges as a bar. It
provides the following as to union membership :
Section 2. Union Membership. As a condition of employment,
all present employees shall become and remain members of the
Union in good standing so long as the Union is the collective bar-
gaining agency. New employees shall become and remain mem-
bers of the Union in good standing within thirty (30) days after
employment, and both present and new employees shall have full
rights and privileges of membership.
The contract also contains a provision for checkoff of dues. The
Petitioner urges the illegality of this union membership clause within
the meaning of Section 8 (a) (3) of the Act because of the failure to
provide a 30-day grace period for old employees on the payroll when
the contract was executed. It therefore contends that the contract
as extended $ is no bar to its petition for the contract unit filed June
14 1952.
The parties stipulated that all employees in the bargaining unit had
dues checked off on the payrolls immediately before and after August
1, 1948, and immediately before and after October 4, 1948. Stressing
this admitted fact, the Intervenor argues that there was no need to
2 The record contains a reference to an earlier 1948 contract , the first between the
parties, executed February 26 but effective January 5 , 1948. Its stated term was to
January 1 , 1949. This contract contained the same union membership clause as the
August 1 contract with this addition : "When authorized by the provisions of the Labor
Management Relations Act of 1947 , the parties agree as follows :" The record indicates
that on March 10, 1948, a union-security authorization was issued to the Intervenor.
Case No. 4-UA-182.
3 The August 1, 1948, contract was actually executed October 4, 1948 , for a term ending
March 15, 1950 , with automatic renewal provided for. Apparently no notice of termi-
nation was given . A brief memorandum signed by the parties and dated March 16, 1951,
refers to the August 1, 1948, contract as extended to March 31 , 1951, pending negotiations.
A May 15, 1951, agreement between the Intervenor and six employers , members of the
Wyoming Valley Throwsters Labor Committee , specifically extended the existing individual
contracts between the Intervenor and the individual employers, of which this Employer
is one, to March 15, 1954 . Under existing Board rules the August 1, 1948 , contract
between the Intervenor and this Employer , so extended , may, if not otherwise defective,
constitute a bar during the first 2 years of the 1951 extension . Interstate Brick Company,
91 NLRB 1428.
HESS, GOLDSMITH & CO., INC. 1011
include a provision in the August 1, 1948, contract allowing a 30-day
grace period to old employees, as all of them were then members.'
In support of its contention the Intervenor cites the Board's de-
ci sions in Sylvania Electric Products Inc.,' where the contract provided
a 30-day grace period for all employees but appeared to shorten it as to
some by retroactive effectiveness, and Charles A. Krause Milling Co.,'
where the contract provided a 30-day grace period for new employees,
and as to old employees, required only that those who already were,
or became members, should continue being members. Neither is prece-
dent for the problem presented here. Clearly the Intervenor's contract
made no distinction ' in membership requirements for old employees.
It required all old employees, whether or not already members, to
become union members forthwith, in disregard of the Act's Section
8 (a) (3) provision that employment may be "conditioned upon"
union "membership . . . on or after the thirtieth day following
the beginning of such employment or the effective date of such agree-
ment, whichever is the later." 7 The Intervenor would show that its
contract does not violate the spirit of this statute-a goal more easily
achieved by mere repetition in the contract of the statutory lan-
guage k--by having us consider evidence of actual union membership
at the time of contracting. To permit such extrinsic facts to justify
the terms of a union-security agreement otherwise illegal on its face
would open the flood-gates to the introduction of a mass of evidence
concerning the synchronous union membership of all employees. This
would, we believe, seriously impede the processing of representation
proceedings. Therefore, without deciding whether under the pro-
visions of Section 8 (a) (3) of the Act the Board is authorized to
take such evidence, it will not, as a matter of administrative policy,
do so.'
4 Over objection of the Intervenor , the Petitioner introduced testimony of the Employer's
Atwater Division manager to the effect that in March 1948, after the union -security
authorization to the Intervenor , the Employer immediately began checking off dues without
giving old employees a 30-day grace period . Actually the record is inconclusive on
this point. In effect the Petitioner , without filing a charge, interjected evidence that
the Employer had engaged in an alleged unfair labor practice in that it unlawfully
maintained and assisted the Intervenor by requiring all old employees to become members
without a 30-day grace period . As the Board has consistently ruled that evidence of
unfair labor practices is inadmissible in representation proceedings ( see Avco Manufac-
turing Corporation , New Idea Division, 97 NLRB 645 ), we disregard this evidence which,
although not prejudicial in the circumstances , should not have been admitted in this
proceeding.
5 100 NLRB 357.
6 97 NLRB 536.
7 No prior contract between the parties allowed old employees a 30-day grace period.
Compare Josten Engraving Company, d/b/a American Yearbook Company, 98 NLRB 49.
8 In fact, in more recent contracts with employers in the area , the Intervenor has done
just that. See contracts in evidence in Liberty Throwing Company, Inc., 4-RC-1621, and
Kerstetter Silk Throwing Co., Inc., 4-RC-1624, now pending for decision before the Board.
9 We see no merit to the Intervenor 's argument that the Petitioner , representing, as
it does, a local group which entered into the contract in question during its affiliation
with the Intervenor , may not urge the illegality of the clause.
242305-53--65
1012 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
We find that the contract, because of its union-security provision,
which does not give a 30-day grace period to old employees who are
not members of the Union, is not a bar to a present determination of
representatives.
4. The Intervenor also moved to dismiss the petition on the ground
that the unit requested is inappropriate. The Petitioner and the
Employer stipulated to the appropriateness of the unit covered by
the contract between the Employer and the Intervenor, for which
unit the Intervenor was certified as bargaining representative in 1947.
However, the Intervenor now contends-basing its contention upon
recent bargaining with this Employer and five others in the area,
which began in 1951 for the purpose of negotiating a welfare clause lo-
that a multiemployer unit is appropriate. For reasons fully set out
in our recent decisions in Franklin Throwing Company, 101 NLRB
153, 101 NLRB 737, in which we discussed in detail this multi-
employer bargaining, we find a unit limited to the employees of this
Employer the appropriate unit.
Accordingly we find that all production and maintenance employees
of the Employer's Atwater Division, Plymouth and Wilkes- Barre,
Pennsylvania, plants, excluding executives, managers, superintendents,
department foremen, shift foremen, shift supervisors, master fixer,
quality control employees, truck drivers, clerical employees, and all
guards, professional employees, 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.
[Text of Direction of Election omitted from publication in this
volume.]
MEMBER MURDOCK, dissenting in part:
I cannot agree with the conclusion of my colleagues that the con-
tract in question does not bar this proceeding. In line with that well
established rule of law that contracts will, when possible, be construed
as lawful," I would allow the contracting union here to prove that all
employees were actually union members when the contract was made;
hence no violence to the Section 8 (a) (3) grace period requirement of
the Act was done by the wording of this union-security clause, and it is
legal.
That requirement of Section 8 (a) (3) is itself couched in negative
terms : ". . . nothing . . . shall preclude an employer from making
10 See footnote 3, above.
"Williston on Contracts, Rev. Ed., Vol. III, Sec. 620; Rest., Contracts, Sec. 236 (a) :
"An interpretation which gives a reasonable, lawful and effective meaning to all manifesta-
tions of intention is preferred to an interpretation which leaves a part of such mani-
festations unlawful or of no effect."
HESS, GOLDSMITH & CO., INC. 1013
an agreement with a labor organization ... to require as a condition
of employment membership therein on or after the thirtieth day fol-
lowing the beginning of such employment or the effective date of such
agreement, whichever is later." Thus, Section 8 (a) (3) does not
affirmatively require-as my colleagues imply-that union-security
clauses shall slavishly follow its wording and explicitly provide a 30-
day grace period for old and new employees alike when the parties
well know, by reason of the established bargaining relationship be-
tween them, that all then employed are union members and would be
unaffected by a "condition of employment" requiring such membership.
This Board has already said in its unanimous opinion in the Krause
Milling case,12 in which great care was taken to examine congressional
intent, that 30-day "free riders" were not to be tolerated. It also said
in that decision that a contrary interpretation "might soon lead to re-
sults incompatible with the labor stability sought to be achieved
through collective bargaining agreements"--a policy with which I am
most heartily in accord. And it there stated, without qualification,
that the correct interpretation of the Section 8 (a) (3) proviso "is one
where the 30-day grace period must be accorded only to those em-
ployees who are not members of the union on the effective date of the
union-security clause of the contract, and to new employees hired after
said effective date." (Emphasis supplied.) What then, is the pur-
pose to be served-in a case such as this where it appears that there
were no nonmember old employees who were entitled to a grace period
and only the contract wording differs-by refusal to examine the facts
concerning union membership?
My colleagues argue that the taking of such evidence in representa-
tion cases would impose an undue administrative burden upon the
Board. In this particular case the burden would have been nil-the
parties stipulated as to union membership of those employed at the
time of contracting. Actually I believe it would be a rare case that
imposed a burden upon the Board in this regard. Absent stipulated
evidence, proof of membership could be accomplished by the submis-
sion of payrolls and checkoff lists, or membership lists if no checkoff
existed. Should the necessary confirmation inherent in such lists be
unavailable and the contracting union resort to other affirmative proof,
the introduction of evidence tending to show that only two or three
employees were in fact not members of the union would cast sufficient
doubt on the necessary totality to justify the exclusion of further af-
firmative evidence of membership. And it is my considered opinion
that this very vulnerability of contracts to proof of illegality by
testimony concerning the nonmembership of even one employee would
tend to discourage the drafting of ambiguous clauses by contracting
" Charles A. Krause Milling Co ., 97 NLRB 536.
1014 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
parties . I do not foresee the gloomy prospect for the administrative
process which my colleagues fear.
Certainly no salutary policy is served by a strict requirement by
this Board under Section 8 ( a) (3) of the Act that contracts must
specify a 30-day grace period for employees not members of the union
even though it is apparent to the contracting parties that no such
employees exist.
For this Board to deny to contracting parties the right to fashion
their contract to the facts of employment existing on the date of the
contract , and to hold them rigidly to a stereotype form of contract to
lighten the burden of the Board , is hardly compatible with stabilizing
labor relations.
MILLER ELECTRIC COMPANY and AMERICAN FEDERATION OF TECHNICAL
ENGINEERS, AFL, PETITIONER. Case No. 11-RC-4.557. December 11,
190
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 Robert Cohn, 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 [Members Houston, Murdock, and Styles].
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 organization involved claims to represent certain
employees of the Employer.
1 The Employer entered into the following stipulation of facts concerning the nature of
its business : "The Miller Electric Company is a Florida Corporation engaged in the
electrical contracting business with principal offices in Jacksonville , Florida. At present
the Employer is engaged in operations in the States of Georgia , Florida, South Carolina
and North Carolina. Gross annual revenues for the past year exceeded $ 100,000. The
Employer is presently engaged in the installation of electrical equipment on the Savannah
River Project pursuant to a contract with the E. I. DuPont de Nemours & Co. The value
of this contract exceeds $100,000. The project is one devoted to the defense effort." The
Employer contends that because in this particular job it supplies no materials , but merely
handles materials supplied by the Government and installs said materials , it is not engaged
in interstate commerce within the meaning of the Act. It has long been a settled policy
of the Board to determine jurisdiction based on the over-all operations of the Employer.
This applies to firms in the construction industry as well as other firms . Paul W. Speer,
Inc., 94 NLRB 317.
In any event, since the Employer is doing business on an atomic energy reservation, his
operations are so identified with the Government's national defense program as to warrant
the full exercise of the Board's power to assert jurisdiction conferred on it by the Act.
Richland Laundry and Dry Cleaners , 93 NLRB 680.
101 NLRB No. 180.