The Leland Electric Co.

National Labor Relations Board - Board Decisions

Apr 17, 1950

89 N.L.R.B. 497 (N.L.R.B. 1950)

III the Matter of THE LELAND ELECTRIC COMPANY, EMPLOYER and
INTERNATIONAL UNION OF ELECTRICAL, RADIO AND MACHINE WORK-
ERS, CIO , LOCAL 804, PETITIONER
Case No. 9-RC-704.-Decided April 17, 1950
DECISION
AND
DIRECTION OF ELECTION
Upon a petition duly filed, a hearing was held before Alan A.
Bruckner, hearing officer. The hearing officer's rulings made at the
hearing are free from prejudicial error and are hereby affimed 1
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 [Chairman Herzog and Members
Reynolds and Styles].
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 Petitioner and the Intervenor are labor organizations claim-
ing to represent employees of the Employer.
3. As the result of a Board-conducted election, the Intervenor's
Local 804 was certified in 1937 as the exclusive bargaining representa-
tive of the same group of employees the Petitioner now seeks to repre-
sent. Thereafter, the Employer and the certified union entered into
a contractual relationship which has continued without interruption.
the most recent contract having been executed April 18, 1947, and
automatically renewed May 31, 1948, to remain effective through May
31, 1950. One of the signatories to this contract was a representative
of the Intervenor, which asserts that the contract is a bar to this
proceeding.
I The hearing officer referred to the Board a motion of the Intervenor, United Electrical,.
Radio and machine workers of America, to dismiss the petition on the ground that a cur-
rent contract between the Employer and its Local 804 is a bar to this proceeding . For the
reasons stated hereinafter, the motion is denied.
89 NLRB No. 69.
497
-498 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Although the contract contains a maintenance of membership pro-
vision the certified union was never authorized in an election pursuant
to Section 9 (e) of the Act to enter into any form of union-security pro-
-vision. The contract also contains in Article XV the following clause :
"In the event any of the terms of the agreement are affected by subse-
quent law or government decree, the terms of the Agreement shall be
modified thereby." Since the effective date of the Act the parties to the
contract have not enforced the maintenance of membership provision
but neither have they entered into any written agreement to defer its
operation because, as the Intervenor asserts, the parties relied on
the presence of Article XV as curing any illegality. We regard the
language of Article XV not as deferring the operation of the union-
-security provision but as permitting the provision to remain effective
until declared void by decree of a court or other proper tribunal.2 The
unauthorized union-security provision not having been rendered in-
,operative by written agreement, the contract containing it cannot.
.constitute a bar to the determination of representatives even though
the parties have not enforced such provision since it became unlawful.3
We find, therefore, 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. We find that all production and maintenance employees in the
Employer's Dayton, Ohio, plant, excluding office and clerical em-
ployees, guards, professional employees, and all supervisors as de-
fined in the Act,-constitute a unit appropriate for the purposes of
,collective bargaining within the meaning of Section 9 (b) of the Act..
DIRECTION OF ELECTION 4
As part of the investigation to ascertain representatives for the
purposes of collective bargaining with the Employer, an election by
I Unique Art Manufacturing Co., 83 NLRB 1250. In Wyckoff Steel Company, 86 NLRB
1318 and in Barium Steel and Forge, Inc., 88 NLRB 564, on which the Intervenor relies,
the contracts specifically provided that their union-security provisions would become
effective only if and when consistent with existing law.
3 Bond Stores, Inc., 81 NLRB 1177; Reading Hardware Co., 85 NLRB 610. The con-
tract, although originally executed before enactment of the amended Act, was auto-
matically renewed after the amended Act's effective date, and thus the maintenance of
membership provision comes within the Act's proscription. C. Hager & Sons Hinge Manu-
Jacturing Company, 80 NLRB 163; Joseph A. Goddard Company, 83 NLRB 605.
A Implicit in the position taken by the Intervenor is the present nonexistence of any
local affiliated with it which, either individually or in conjunction with the UE, is engaged
in bargaining in behalf of the Employer's employees in the unit in which the election is
directed. The record, however, fails to establish conclusively the nonexistence of any such
local. If such a local exists, UE's participation in the election directed herein is condi-
tioned upon such local's full compliance with Section 9 (f), (g), and (h) of the Act.
[By Order dated April 28, 1950, the Board granted the Intervenor, United Electrical,
Radio and Machine Workers of America, permission to withdraw its name from the ballot.]
THE, LELAND ELECTRIC COMPANY 499
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 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 bargain-
ing, by International Union of Electrical, Radio and Machine Workers,
CIO, Local 804.
889227-51-vo1. 89-33