The A. & M. Woodcraft, Inc.

National Labor Relations Board - Board Decisions

Jul 22, 1949

85 N.L.R.B. 322 (N.L.R.B. 1949)

In the Matter of TAE A. & M. WOODCRAFT, INC., EMPLOYER and JOHN
COLANGELO, PETITIONER and FURN1TURE WORKERS UNION, LOCAL
76-B, CIO, UNION
Case No.2-RD-73.-Decided July 22,1919
DECISION
AND
DIRECTION OF ELECTION
Upon a petition for decertification duly filed, hearing in this case
was held before Jack Davis, 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 National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Members Reynolds, Murdock, and
Gray].
Upon the entire record in the case, the Board finds:
1. The Employer is engaged in commerce within the meaning of
the National Labor Relations Act.
2. The Petitioner is an employee of the Employer and alleges that
the Union is no longer the representative, as defined in Section 9 (a)
of the Act, of the employees designated in the petition.
The Union is a labor organization recognized by the Employer as
the exclusive bargaining representative for the employees designated
in the petition.
3. The Union's current collective bargaining contract with the Em-
ployer is dated March 24, 1948, and is effective until March 15, 1949;
the contract has a provision for yearly automatic renewal in the
absence of a 30-day notice in writing, prior to the expiration date of
any contract year, of an intention to terminate the contract. The
Union contends that this agreement was renewed in February 1949
and, therefore, that it constitutes a bar to a present determination of
1 The hearing officer's ruling permitting testimony on the question of contract bar is not
error. In resolving the issues of contract bar in decertification cases , the Board
applies the same rules as have been and are still applied with respect to petitions
for investigation and certification . See Matter of Willborn Bros. Company , Inc., 77
N. L. R. B. 1026; Matter of International Harvester Company, 77 N. L. R. B. 242.
85 N. L. R. B., No. 64.
322
THE A. & M. WOODCRAFT, INC. 323
representatives. The Employer challenges the validity of the con-
tract as a bar upon the ground that the contract contains an unauthor-
ized union-security provision.2
The Union admits that it has not been certified by the Board, pur-
suant to Section 9 (e) (1) of the Act, as being authorized to execute
such a union-security provision, and in fact could not be so certified
because it has failed to comply with the filing requirements of Section
9 (f), (g), and (h) of the Act. The Union contends, however, that
the contract is saved from invalidity by reason of a severability clause
contained therein.3 In support of its contention the Union argues
that a reading of the severability provision together with the union-
security provision makes it clear that the parties did not intend the
union-security provision to be immediately effective and that it is,
equally clear from the language that such clause was to be effective only
if valid under existing law. We are unable to agree. We believe that
the clauses reasonably lend themselves to the interpretation that the
parties intended the union-security provision to have a present and
immediate application and that its effectiveness was not to be de-
ferred until such time as its validity or invalidity had been authori-
tatively determined. It seems to us that if the parties had intended
the union-security provision to have only future application, such
intent should have been expressed in clear and unambiguous language.4
Because the contract contains such an unauthorized union-security
provision, we find, for this reason, and without regard to other con-
siderations, that the contract cannot serve as a bar to a present determi-
nation of representatives; 5 nor is it material, as we said in the Lykens
case,6 that in fact no action has been taken by the parties pursuant to
the union-security provision. The mere existence of the provision
2 The union-security clause is contained in Section II of the contract. It provides
that "(a) All employees who are members of the union, and all employees who may
thereafter become members, shall remain members of the union in good standing for
the duration of this agreement. (b) A duly authorized representative of the union
shall have the right to visit the shop of the Employer on official business at all times
when the shop is operating for the purpose of ascertaining whether the conditions
of this agreement are being observed."
3 The severability provision set forth in Section XXI-(A) provides as follows : "Shouldl
any paragraph or clause herein contained be rendered or declared illegal or an unfair
labor practice by reason of any existing or subsequently enacted legislation or by any
decree of a court of competent jurisdiction or by the decision of any governmental
agency, such invalidation or such part or portion of this agreement shall not invalidate
the remaining portions hereof. In the foregoing event, the Union shall be entitled to
such paragraph or clause in replacement most favorable to it as shall be valid."
4Matter of Unique Art Manufacturing Company, 83 N. L. R. B. 1250.
6 Matter of C. Hager & Sons Hinge Manufacturing Company, 80 N. L R. B. 163 ; Matter
of General Electric Company, 80 N. L. R. B. 169; Matter of General Electric Company
(Plastic Division of the Chemical Department), 81 N. L. R. B. 476; Matter of Lykens-
Hosiery Mills, Inc., 82 N. L. R. B. 981 ; Matter of Unique Art Manufacturing Company,.
supra, note 4.
6 Supra, note 5.
857829-50-vol. 85-22
324 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
acts as a restraint upon those desiring to refrain from union activities
within the meaning of Section 7 of the Act.
We find that a question affecting commerce exists concerning the
representation of employees of the Employer within the meaning
of Section 9 (c) and Section 2 (6) and (7) of the Act.
4.; In accordance with the stipulation of the parties, the following
employees of the Employer constitute an appropriate unit for the
purposes of collective bargaining within the meaning of Section 9 (b)
of the Act :
All woodworkers, assemblers, laborers, porters, cabinet makers,
machinemen, packers, and helpers employed at the Employer's New
York, New York, plant, excluding clerical and office employees, non.
working foremen, professional employees, guards, watchmen, and
supervisors as defined in the Act.
DIRECTION OF ELECTION'
As part of the investigation to ascertain representatives for the pur-
poses of collective bargaining with the Employer, an election by secret
ballot shall be conducted as early as possible, but not later than 30
days from the date of this Direction, under the direction and super-
vision of the Regional Director for the Region in which this case was
heard, and subject to Sections 203.61 and 203.62 of National Labor
Relations Board Rules and Regulations, among the employees in the
unit found appropriate in paragraph numbered 4, above, who were
employed during the pay-roll period immediately preceding the date
of this Direction of Election, including employees who did not work
during said pay-roll period because they were ill or on vacation or
temporarily laid off, but excluding employees on strike who are not
entitled to reinstatement, to determine whether, or not they desire to
be represented, for purposes of collective bargaining, by Furniture
Workers Union, Local 76-B, CIO.
' Although the Intervenor is not in compliance with Section 9 (f), (g), and ( h) of the
Act, the Board will nevertheless direct an election on the decertification petition and
place the Intervenor 's name on the ballot. In accordance with well established Board
policy, the Union will be certified if it wins the election providing that at such time
it is in compliance . Absent such compliance , the Board will certify only the arithmetical
results of the election . See Matter of Harris Foundry t Machine Company, 76 N. L: It. B.
118.