The Koppers Co.

National Labor Relations Board - Board Decisions

Jun 6, 1950

90 N.L.R.B. 125 (N.L.R.B. 1950)

In the Matter Of WOOD PRESERVING DIvISION OF THE KOPPERS COMPANY,
INC., EMPLOYER and LOCAL UNION 409, INTERNATIONAL CHEMICAL
WORKERS UNION, AFL, PETITIONER
Case. No. 9-RC-760.-Decided June 6, 1950
DECISION AND DIRECTION OF ELECTION
Upon a petition duly filed under Section 9 (c) of the National Labor
Relations Act, a hearing was held before Seymour Goldstein, 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 Act, the Board
has delegated its powers in connection with this case to a three-member
panel [Chairman Herzog and Members Houston and. Styles].
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 em-
ployees of the Employer.
3. The question concerning representation :
The Intervenor maintains that its current contract with the Em-
ployer is a bar to the present proceeding. The Company, although
expressing neutrality on the question of whether the contract is a
bar, takes the position that its present contract is a valid one effective
until its termination date and that its provisions are lawful. The
Petitioner, on the other hand,-contends that the contract is not a bar
to a present determination of representatives, because it contains an
unauthorized union-security provision. The contract in question was
executed on November 8, 1949. It provides that it shall be effective
from September 11, 1949, to September 10, 1950, and from year to
year thereafter subject to modification or change by either party by at
least 60 days' notice prior to Septeliiber 10. The original petition
herein was filed on February 7, 1950, and an amended petition was
' The hearing officer's ruling permitting the intervention of Local 647, United Construction
Workers, affiliated with the United Mine Workers of America on the basis of its current
contractual interest was proper. Norcal Packing Company, 76 NLRB 254.
90 NLRB No. 23.
125
126 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
filed on February 23, 1950. Hence the contract would constitute a
bar, were it not for the following union-security provision :
Any employee who individually and voluntarily certifies in writ-
ing that he authorized Union dues deduction and that he will
maintain his membership in the Union during the term of this
agreement, such an employee shall be obligated to maintain his
membership in the Union as a condition of employment during
the term of this agreement. This will be complied with unless it
conflicts with federal law.
Although it is not phrased in precisely the terms which are cus-
tomarily used, this provision is in essence a maintenance-of-member-
ship clause, which, under certain circumstances, requires continued
membership in the Union as a condition of employment. As the Inter-
venor has not been certified by the Board under Section 9 (e) (1) as
authorized to execute a union-security contract, the agreement contains
an infirmity which prevents it from being an effective bar to a repre-
sentation proceeding.2 Nor is the union-security provision rendered
ineffective by virtue of the statement quoted above that the provision
will be complied with "unless it conflicts with federal law." We have
held that where the effect of a saving clause, attached to an unauthor-
ized union-security provision, is not to defer the application of that
provision, but merely to postpone the issue of its legality for future
determination by some proper tribunal, the contract in which the
clause appears is not a bar.3 Moreover, it is immaterial that, in fact,
no action has been taken pursuant to the union-security provisions, as
the mere existence of an illegal union-security provision acts as a
restraint upon those desiring to refrain from union activities .4 In
these circumstances, we find that the contract is not a bar to a present
determination of representatives.,
Accordingly, we find that a question affecting commerce exists
concerning the representation of employees of the Employer, within
the meaning of Section 9 (c) (1) and Section 2 (6) and (7) of the
Act.
4. At the only plant involved in this proceeding the Employer is
engaged in the preservation of timber products. The parties are in
agreement that the appropriate unit consists of all production and
maintenance employees excluding office and clerical employees, tech-
Merchants Fire Dispatch , 83 NLRB 788 ; Newburg Machine Company, 84 NLRB 657.
s Lykens Hosiery Mills, Inc., 82 NLRB 981; Unique Art Manufacturing Co., 83 NLRB 1250.
4 Lykens Hosiery Mills, supra ; Unique Art Manufacturing Co., supra, footnote 3.
5 We do not believe it is our function , as requested by the Employer , to advise it regarding
the effect of the above determination upon its contractual obligation with respect to check-
off of union dues.
KOPPERS COMPANY, INC. 127
nical employees, guards, professional employees, and supervisors as
defined in the Act.
The only issue with respect to the unit involves one part-time janitor
whom the Employer and the Intervenor would exclude and the Peti-
tioner would include. The janitor is an hourly paid employee who
keeps the office and locker rooms clean. He works 6 days a week, for
a total of 18 hours per week. We believe that this employee is regu-
larly employed for substantial periods of time in what is clearly
maintenance work and accordingly shall include him in'the unit.
We find that all production and maintenance employees 6 of the
Employer at its plant in Russell, Kentucky, excluding office and
clerical employees, technical employees, guards, professional em-
ployees, and supervisors as defined in the Act, constitute a unit ap-
propriate for the purposes of collective bargaining, within the
meaning of Section 9 (b) of the Act.
DIRECTION OF ELECTION 7
As part of the investigation to ascertain representatives for the
purposes 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
supervision 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 payroll period immediately preceding the
date of this Direction of Election, including employees who did not
work during said payroll 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
or not they desire to be represented, 'for purposes of collective
bargaining, by Local Union 409, International Chemical Workers
Union, AFL.
'This includes the employees referred to as watchmen at the hearing but who actually
spend over one-half of their working hours in production and maintenance work and less
than one-half of their time at guard duties. Edgar P. Folse Inc., 86 NLRB 394.
4 Having failed to achieve compliance or to initiate steps for compliance with the filing
requirements of Section 9 (f), (g), and (h) of the amended Act, the Intervenor will not
be accorded a place on the ballot.