National Brassiere Products Corp.

National Labor Relations Board - Board Decisions

Jan 15, 1959

122 N.L.R.B. 965 (N.L.R.B. 1959)

NATIONAL BRASSIERE PRODUCTS CORP. 965
National Brassiere Products Corp.' and Undergarment &
Negligee Workers Union , Local 62, ILGWU, AFL-CIO, Peti-
tioner. Case No. 2-RC-9513. January 15, 1959
DECISION AND DIRECTION OF ELECTION
Upon a petition duly filed a hearing was held before a hearing
officer of the National Labor Relations Board. The hearing offi-
cer'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 Intervenor advances its contract with the Employer as a
bar. The contract is dated August 1, 1956, and provides that it
shall remain in effect until July 31, 1959, a term of 3 years. The
Board has held that a contract having a fixed term in excess of 2
years will be treated, for the purposes of contract bar, as a contract
having a fixed term of 2 years, notwithstanding the fact that a
substantial part of the industry of which the contracting employer
is a part may be covered by contracts having a longer term.' Thus,
the instant contract is treated as having expired July 31, 1958.
The Board has also held that for contract-bar purposes there will
be an "insulated period" of 60 days immediately preceding and
including the expiration date of an existing contract during which
the contracting parties may negotiate and execute a new or amended
agreement without the intrusion of a rival petition, and that a peti-
tion filed during the insulated period will be dismissed.4 The rule,
however, does not require dismissal of a petition so filed if the
contract is no bar for other reasons under Board rules. The peti-
tion herein was filed on July 17, 1958, during the "insulated pe-
riod." Since the Petitioner contends that the contract contains two
unlawful provisions, it is necessary to examine these provisions in
light of the Board's contract bar rules.
The contract provides in part :
(b) All employees shall, upon completion of their sixty (60)
day employment period, from the effective date of this agree-
ment, or from the beginning date of employment, whichever is
1 The names of the parties appear as amended at the hearing.
'The Amalgamated Textile Workers of America, Local 631, NIUC, intervened on the
basis of a contractual interest.
3 Pacific Coast Association of Pulp and Paper Manufacturers, 121 NLRB 990.
'Deluxe Metal Furniture Company, 121 NLRB 995.
122 NLRB No. 117.
966 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
later, join the Union and thereafter remain members of the
Union as a term and condition of employment.
(d) Newly hired employees shall be hired on a trial basis of
sixty (60) working days subject to discharge by the Employer
within this period for any reason whatsoever. At the end of
thirty (30) working days, newly hired employees will be given,
temporary work permits by the Union and will pay a total of
$3 to the Union for the temporary work permits....
The Keystone cases holds that a contract containing a union-
security clause which does not on its face conform to the require-
ments of the Act will not be a bar to an election.' For the guid-
ance of those who might encounter difficulty in drafting, the Board
has set forth a model clause which it deemed to reflect the maxi-
mum union security permissible under the Act.' Specifically it was
stated in the Keystone case' that:
... clauses in contracts ... which will remove the contracts as
bars include those . . . (3) making a condition of employment
the performance of any obligation of membership other than
the payment of "periodic dues and initiation fees uniformly
required."
The union-security provision, quoted above, creates a 60-day pe-
riod at the end of which all employees must join the Union, but
requires that after 30 days only new employees must make a pay-
ment to the Union of $3 for temporary work permits. As to new
employees the contract plainly imposes as a condition of employ-
ment the work-permit obligation which cannot be held to consti-
tute the payment of periodic dues and initiation fees uniformly
required. Further, the contract works a discrimination against new
employees by requiring an obligation to the Union after 30 work-
ing days, whereas all other employees have no obligation to the
Union until after 60 working days.9 Accordingly, we find that this
provision removes the contract as a bar to this proceeding.
Article XVII, paragraph (a), of the contract provides in part
that the Employer agrees to contribute approximately $5 per month
per "Union employee" to the union's insurance fund. This clause
clearly contravenes the rule in the Keystone case10 that :
. . . clauses in contracts . . . which will remove the contracts
as bars include those (1) requiring the Employer to give pref-
'Keystone Coat, Apron & Towel Supply Company, 121 NLRB 880.
9 Keystone Coat, Apron & Towel Supply Company, supra. Prior cases were expressly
overruled to the extent inconsistent with the rules therein enunciated.
v Keystone Coat, Apron & Towel Supply Company, supra.
8 Keystone Coat, Apron & Towel Supply Company, supra.
9 See Hughes Tool Company , 104 NLRB 318.
10 Keystone Coat, Apron 4 Towel Supply Company, supra.
LOCAL 156"6, INTEL LONGSHOREMEN'S ASSOCIATION 967
erence on the basis of Union membership in hire, tenure,
seniority, wages, or other 'terms and conditions of employ-
ment; ...
Accordingly, as the contract is no bar," we find a question af-
fecting commerce exists concerning the representation of employees
of the Employer within the meaning of Section 9(c) (1) and Sec-
tion 2(6) and (7) of the Act.
4. We find that all production employees of the Employer at its
New York, New York, plant, excluding office clerical employees,
sales employees, professional employees, watchmen, guards, and su-
pervisors 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.12
[Text of Direction of Election omitted from publication.]
CHAIRMAN LEEnoM took no part in the consideration of the above
Decision and Direction of Election.
11 The result is not affected by the separability clause of the contract which states that,
should any portion of the contract be rendered illegal , the 'remaining portions of the
contract shall not be invalidated. See the Keystone case, supra.
12 The unit was stipulated by the panties.
Local 1566, International Longshoremen 's Association and Mar-
vin Gould and Maritime Ship Cleaning and Maintenance Co.,
Party to an Agreement, and Philadelphia Marine Trade Asso-
ciation, Party to a Contract
Local 1566, international Longshoremen 's Association and Zack
Page and Maritime Ship Cleaning and Maintenance Co., Party
to an Agreement, and Philadelphia Marine Trade Association,
Party to a Contract. Cases Nos. 4-CB-361 and 4-CB-36$.
January 16, 1959
DECISION AND ORDER
On January 16, 1958, Trial Examiner Charles W. Schneider is-
sued his Intermediate Report in the above-entitled proceeding, find-
ing that the Respondent had engaged in and was engaging in cer-
tain unfair labor practices and recommending that it cease and
desist therefrom and take certain affirmative action , as set forth in
the copy of the Intermediate Report attached hereto. He also
found that the Respondent had not engaged in certain other un-
fair labor practices and recommended that those allegations of the
122 NLRB No. 118.