Post Houses, Inc.

National Labor Relations Board - Board Decisions

Dec 17, 1968

173 N.L.R.B. 1320 (N.L.R.B. 1968)

1320 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Post Houses, Inc. and Construction and General
Laborers Local Union #517, AFL-CIO, Peti-
tioner . Case 12-RC-3130
December 17, 1968
DECISION ON REVIEW AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS
FANNING AND ZAGORIA
On September 11, 1968, the Regional Director for
Region 12 issued a Decision and Direction of Election
in which he found the existing collective-bargaining
agreement between the Employer and the Intervenor'
to be not a bar on the ground that it limits
recognition to employees who are members of the
Intervenor. Thereafter, in accordance with Section
102.67 of the National Labor Relations Board rules
and Regulations, Series 8, as amended, the Employer
filed a timely request for review. The Board, by
telegraphic Order dated October 7, 1968, granted
review and stayed the election. The Employer filed a
supporting brief. Neither the Petitioner nor the
Intervenor filed a brief in opposition.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Board
has delegated its powers in connection with this case
to a three-member panel.
The Board has considered the entire record in this
case with respect to the issues under review, including
the Employer's brief and, for the reasons set forth
below, finds, contrary to the Regional Director, that
the contract constitutes a bar.
The petition herein was filed on July 17, 1968,
seeking a- unit of all employees employed by the
Employer as its Orlando, Florida facility. The
Employer contended at the hearing that the petition
was barred by a contract between the Employer and
the Intervenor, effective from July 26, 1967, to July
26, 1970. The Regional Director held that the
contract was not a bar to the petition because it was a
"members only" agreement.
The collective-bargaining agreement between the
Employer and the Intervenor contains the following
clause:
I Hotel , Motel , Restaurant Employees and Bartenders Union,
AFL-CIO, which was certified on January 27, 1967, as the collective-
bargaining representative in the same unit petitioned for in the instant
case , was permitted to intervene at the hearing on the basis of its
current contractual interest.
2 121 NLRB 1160, 1164
3 We therefore find inapposite the cases cited by the Regional
Director, supra
4 See Hebron Brick Company , 135 NLRB 245. The cases relied
ARTICLE I - UNION RECOGNITION
Section 1. The employer recognizes the Union as
the sole collective-bargaining agent for those full
time employees desiring to join said Union who are
employed at POST HOUSES, INC. Restaurant at
300 West Amelia Street, Orlando, Florida, exclud-
ing all office clerical employees, part-time em-
ployees including students, seasonal employees,
guards, and supervisors as defined in the Act.
The Regional Director found that under this clause
the contract "clearly and expressly" recognized the
Intervenor as the representative only of those
employees who are its members. He therefore rejected
the Employer's evidence (admitted over objection)
that the parties did not intend this to be a "members
only" contract, and that in fact it was applied to all
employees. Accordingly, the Regional Director found
that, as a "members only" agreement cannot operate
as a bar under the Board's decision in Appalachian
Shale Products Co.,' the contract was not a bar to
this petition, and he denied the Employer's motion to
dismiss.
The Employer asserts that the quoted provision is
ambiguous, when read in conjunction with the sub-
stantive provisions within the four corners of the
agreement, and that the Regional Director erred in
rejecting evidence adduced at the hearing relating to
the intent and practice of the parties in applying the
substantive provisions of the contract to all employ-
ees, regardless of membership.
We do not believe that the express provisions of the
contract clearly establish that it is a members-only
agreement.' Its substantive provisions do not limit
contractual benefits to union members, and the
provisions governing wages and seniority specifically
apply to all employees. It could reasonably be
inferred that the contract was applied to all employ-
ees in the unit regardless of union membership.
However, as such inference does not explain the use
of phrase "employees desiring to join said Union" in
the recognition clause, we find that ambiguity exists
as to the intended coverage of the contract which
must be resolved by considering the intent and
practice of the contracting parties.' Accordingly, we
reverse the Regional Director's ruling excluding such
evidence.
upon by the Regional Director, which do not deal with recognition
clauses, are not here controlling Paragon Products Corporation, 134
NLRB 662, involves the standards for determining the bar quality of
contracts with alleged unlawful union -security provisions The other, St
Louis Cordage Mills, Division of American Manufacturing Company,
168 NLRB No 135, deals with seniority provisions asserted to be in
violation of another Federal statute prohibiting discrimination on the
basis of sex.
173 NLRB No. 196
POST HOUSES, INC.
The record shows that pursuant to a Board
certification of the Intervenor for the unit here
sought, the Intervenor entered into bargaining
negotiations with the Employer resulting in the
instant contract. In a letter covering the return of the
executed contract to the Employer, the Intervenor
took exception to a "members only" implication of
the recognition clause, apparently drafted by the
Employer, and unequivocally stated that it "repre-
sented all of the workers in the unit", suggesting
clarification by rewriting the clause or by letter.
There is conflicting testimony as to whether the
parties had further discussions on this point. In any
1321
event, there is uncontroverted testimony that the
terms of contract were in fact applied equally to all
employees, regardless of union membership.
In view of the foregoing, we find that the contract
is not a "members only" agreement and, as it covers
all the employees here sought, it is a bar to the instant
petition. Accordingly, we shall dismiss the petition.
ORDER
It is hereby ordered that the petition filed herein
be, and hereby is, dismissed.