Jet-Pak Corp.

National Labor Relations Board - Board Decisions

Aug 24, 1977

231 N.L.R.B. 552 (N.L.R.B. 1977)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Jet-Pak Corporation and James F. Penna, Petitioner
and Amalgamated Clothing and Textile Workers
Union, AFL-CIO-CLC. Case 3-RD-524
August 23, 1977
DECISION ON REVIEW AND ORDER
BY MEMBERS JENKINS, PENELLO, AND
WALTHER
On May 3, 1977, the Regional Director for Region
3 issued a Decision and Direction of Election in the
above-entitled proceeding in which he found that the
collective-bargaining agreement currently in effect
between the Employer and Amalgamated Clothing
and Textile Workers Union, AFL-CIO-CLC, herein
called the Union, did not constitute a bar to an
election herein, as the union-security provision
contained in the contract denied employees a 30-day
grace period within which to become members of the
Union. Thereafter, in accordance with the National
Labor Relations Board Rules and Regulations, Series
8, as amended, the Union filed a timely request for
review of the Regional Director's decision, contend-
ing that the Regional Director erred in admitting
extrinsic evidence to establish that the contract's
union-security provision is unlawful.
By telegraphic order dated May 25, 1977, the
National Labor Relations Board granted the request
for review and stayed the election pending decision
on review.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the entire record in this
case with respect to the issues under review and
makes the following findings:
The Union is the current representative of the
Employer's production employees. Petitioner claims
that a substantial number of employees in the
appropriate unit no longer wish to be represented by
the Union. The Union claims that its contract with
the Employer is a bar to the decertification petition.
The Employer contends that the contract contains an
illegal union-security provision and therefore the
contract cannot serve to bar the present petition.
The Union and the Employer are parties to a
collective-bargaining contract which, by its terms, is
effective from July 1, 1976, to June 30, 1979. The
union-security provision in the contract provides as
follows:
All dates are in 1976 unless otherwise indicated.
2 Loree Footwear Corporation, 197 NLRB 360 (1972). See also Pine
Transportation, Inc.. 197 NLRB 256 (1972), and St. Louis Cordage Mills,
231 NLRB No. 93
New employees must become members of the
Union on the sixtieth (60th) day following the
date of employment or the effective date of this
Agreement, whichever is later, and must remain
members of the Union in good standing during
the term of this agreement as a condition of
continued employment.
As noted above, the contract on its face states that
it is effective as of July 1, 1976.1 At the hearing, the
parties stipulated that agreement was not reached on
all the terms of the contract, including the union-
security clause, until August 27, and that the contract
was not actually executed until September 16.
Petitioner and the Employer took the position that,
considering the dates in the stipulation, the union-
security clause is actually retroactive and does not
give employees their statutory 30-day grace period
within which to become union members. The
Regional Director, agreeing with those contentions,
considered the date of agreement and the date of
execution contained in the stipulation and deter-
mined that some new employees may have been
denied their 30-day grace period. Thus, the Regional
Director concluded that the contract could not serve
as a bar to an election herein.
In its request for review the Union claims that
extrinsic evidence such as that contained in the
stipulation may not be considered in determining the
legality of the contract's union-security clause. The
Union argues that the effective date of the contract is
clear and unambiguous from the terms of the
contract itself. The Union further contends that, as
the union-security clause is lawful on its face, the
contract serves to bar the petition herein. We find
merit in the Union's contentions.
The Board has consistently held that "the legality
of a contract asserted as a bar is to be determined in
representation proceedings from the face of the
contract itself and that extrinsic evidence will not be
admitted in a representation proceeding to establish
the unlawful nature of such a contract."2 The Board
first enunciated the reasons for this rule in Paragon
Products Corporation.3 There the Board noted that an
unfair labor practice proceeding is the proper
method of enforcing the statutory proscription
against discriminatory practices, such as an unlawful
union-security clause, as a representation proceeding
which is investigatory in character is not the proper
forum for entertaining matters properly left to an
adversary proceeding. The Board recognized its duty
to be aware of unlawful contract provisions, but
Division ofAmerican Manufacturing Company, Inc., 168 NLRB 981 (1967).
3 134 NLRB 662 (1961).
552
JET-PAK CORPORATION
concluded that the illegality of such provisions must
appear from the terms of the contract itself. 4
In the present proceeding the Regional Director
correctly noted the applicable case precedent and the
policy reasons contained therein. He further appro-
priately noted cases wherein the Board has consid-
ered the date of execution of the contract and the
date of agreement where those facts have appeared
on the face of the contract. 5
However, the Regional Director was of the opinion
that the stipulation agreed to by the parties is a form
of "uncontroverted evidence" which does not present
the "dangers normally present in a non-adversary
representation hearing" as described in Paragon
Products. The Regional Director was of the opinion,
therefore, that it was appropriate to consider the
effect of the stipulation on the union-security clause,
as such consideration does not violate any of the
proscriptions set forth in Paragon Products.6
We are of the opinion that, under applicable Board
precedent, the Regional Director erred in considering
the Parties' stipulation and its effect on the legality of
the union-security clause. Even considering the
4 The Board also noted that if the clause in question has been found to be
unlawful in an unfair labor practice proceeding the contract would not bar a
representation petition.
I Standard Molding Corporation, 137 NLRB 1515 (1962), and National
Seal Division of Federal-Mogul Corporation, 176 NLRB 619 (1969).
possible safeguards of a stipulation as a form of
"uncontroverted evidence," this is precisely the type
of extrinsic evidence which the Board has refused to
allow in representation proceedings. Thus, in deter-
mining whether a contract serves as a bar to an
election, we are permitted only to examine the terms
of the contract as they appear within the four corners
of the instrument itself.
Therefore, the only remaining issue before us is
whether the union-security clause in the contract is
lawful on its face. We find that it is clearly lawful, as
it does in fact give employees the statutory 30-day
grace period within which to become union mem-
bers. Accordingly, and as the contract otherwise
meets the requirements of Appalachian Shale Pro-
ducts Co.,7 we find that the contract serves as a bar to
the petition herein. We shall therefore dismiss the
petition.
ORDER
It is hereby ordered that the petition filed herein
be, and it hereby is, dismissed.
6 Although the parties further stipulated that the Union did not attempt
to enforce the union-security clause until November 1, the Regional
Director found this irrelevant, citing Paragon Products. This appears to us to
be a somewhat inconsistent application of the appropriate pnnciples.
T 121 NLRB 1160(1958).
553