The Hofmann Packing Co., Inc.

National Labor Relations Board - Board Decisions

Dec 13, 1949

87 N.L.R.B. 601 (N.L.R.B. 1949)

C)
In the Matter of THE HOFMANN PACKING CO., INC.,' EMPLOYER and
UNITED PACKINGHOUSE WORKERS Or AMERICA, C. I. 0., PETITIONER
Case No. 3-RC-339.-Decided December 13, 1949
DECISION
AND
DIRECTION OF ELECTION
Upon a petition duly filed, a hearing was held before Harold Kowal,
hearing officer. The hearing officer's rulings made at the hearing are
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 Houston, Reynolds, and
Murdock].
Upon the entire record in this case, the Board finds :
1. The Employer is engaged in commerce within the meaning of
the National Labor Relations Act.
2. The labor organizations and the individual involved claim to
represent certain 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, for the following
reasons:
Amalgamated Meat Cutters and Butcher Workmen of North
America, Local 1, A. F. L., herein called the AFL, entered into a con-
tract with the Employer covering the employees here involved, which
was to be effective from May 1, 1948, to April 30, 1949, and auto-
1 Name of Ernployer as amended at the hearing.
2 The hearing officer properly granted the motion to intervene by William Weiss, an
individual, on the basis of a showing of interest submitted to the hearing officer and ac-
cepted by him as adequate. We find no merit in the objection to such intervention by the
other intervenor in the proceeding which objection was made on the grounds that Weiss
(a) is not a labor organization within the meaning of the Act, (b) has not complied with
the filing requirements of the Act, and (c) does not have the objects and purposes required
under the Act for a labor organization. Section 2 (.4) of the Act empowers individuals as
well as labor organizations to represent employees for purposes of collective bargaining;
the filing requirements of the Act do not apply to individuals (Acme Boot Manufacturing
company, Inc., 76 NLRB 441) ; and all that need be shown by an individual seeking
representative status is that such status is sought for the purpose of collective bargaining,
as was shown here.
87 NLRB No. 80.
601
0
602 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
matically renewable from year to year thereafter in the absence of a
notice to alter or terminate the contract given 60 days prior to any
termination date. The AFL contends that the contract was auto-
matically renewed on May 1, 1949, and is therefore a bar to the petition,
which was not filed until August 30, 1949.3
This contract, however, contains the following union-security pro-
vision:'
The Employer will employ when available, such members of the
Local as it may from time to time require . . ., provided that
a sufficient number of competent members are available to meet
such requirements. If the Local should not have any members
in good standing available, the Employer may employ such other
person or persons who are ' not members of the Local, but such
persons must become members of the Local within thirty (30)
days after the commencement of such employment... .
No election has even been conducted by the Board under Section
9 (e) of the Act authorizing the AFL to execute a union-security
agreement with the Employer. Accordingly, the inclusion of any type
of union-security clause in a contract between the AFL and the Em-
ployer would prevent such a contract from being a bar to a current
determination of representatives' Moreover, the clear effect of the
union-security provision here is to require that the Employer give
preferential treatment in the hiring of employees to members of the
AFL. Such a provision goes beyond the limited form of union-
security agreement permitted by Section 8 (a) (3) of the Act, and is
thus illegal and no bar to the instant petition, without regard to
whether its execution was authorized by an election conducted under
Section 9 (e) of the Act.5
The contract in question also contains a severability clause as
follows :
It is the intention of the parties, in the event that the employer's
work falls within interstate commerce, to comply with the Labor
Management Act of 1947. In the event that any of the clauses of
this agreement should violate the Labor Management Act, the
Company and the Union agree to renegotiate those portions of
the contract that are in conflict with said Act. However, the bal-
ance of the contract shall remain in full force and effect.
We have held, however, in cases involving similar severability
clauses, that the reasonable -construction to be given such a clause, as .
8 The original petition was filed on this date ; an amended petition was filed on October 4,
1949.
4 C. Hager & Sons Hinge Manufacturing Company, 80 NLRB 163.
5 Charles E. Hires Co., New York Electric Water Cooler Division, 85 NLRB 1208.
THE HOFMANN PACKING CO., INC. 603
it relates to an unlawful union-security clause, is that the union-
security provision remains effective unless and until the proper tri-
bunal determines that it is invalid; and accordingly that the restraint
upon employees desiring to refrain from union activities within the
meaning of Section 7 of the Act which results from the mere existence
of the unlawful union-security provision requires the application of
our usual contract bar principles in such situations
We find, therefore, for the reasons stated above, that the contract
between the AFL and the Employer does not preclude a present deter-
mination of representatives,?
4. The following employees of the Employer constitute a unit appro-
priate for the purposes of collective bargaining within the meaning
of Section 9 (b) of the Act:
All production employees, excluding maintenance employees,8
chauffeurs, office and clerical employees, managers, foremen, super-
intendents, and all other 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, lender 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 those employees who have since
quit or been discharged for cause and have not been rehired or rein-
stated prior to the date of the election, and also excluding employees
on strike who are not entitled to reinstatement, to determine whether
they desire to be. represented, for purposes of collective bargaining, by
United Packinghouse Workers of America, C. I. 0., by Amalgamated
Meat Cutters and Butcher Workmen of North America, Local 1,
A. F. L., by William Weiss, or by none.
a Evans Milling Company, 85 NLRB 391.
4 Accordingly, it is unnecessary for us to determine whether a reopening of the Contract
by the AFL on February 24, 1949, which allegedly was for the sole purpose of, and resulted
only in, the renegotiation of wages, was a sufficient reopening of the contract to prevent its
automatic renewal, and to render the contract no bar to this proceeding on that ground.
9 The maintenance employees are an engineer, a mechanic, and a janitor. In view of
their exclusion from the contract unit for a period of 10 years, and their somewhat different
duties, supervision, and working conditions, we exclude them from the unit in accordance
with the agreement of the parties. Cf.'Wilson & Co., Inc., 81 NLRB 497.