Unique Art Manufacturing Co.

National Labor Relations Board - Board Decisions

Jun 7, 1949

83 N.L.R.B. 1250 (N.L.R.B. 1949)

In the Matter Of UNIQUE ART MANUFACTURING Co., EMPLOYER and
PLAYTHINGS, JEWELRY AND. NOVELTY WORxERS INTERNATIONAL
UNION, CIO, PETITIONER
Case No. 2-RC 953. Decided June 7, 1949
DECISION
AND
DIRECTION OF ELECTION
Upon a petition duly filed a hearing was held before Warren H.
Leland, hearing officer of the National Labor Relations Board. The
hearing officer's rulings made at the hearing are free from prejudicial
error and are hereby affirmed.' The request of the Intervenor for
oral argument is hereby denied, as the record and briefs adequately
-present the position of the parties.
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 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 named below claim to represent em-
ployees of the Employer.
3. The question concerning representation :
The Petitioner by letter dated August 17, 1948, advised the Em-
ployer of its claim for recognition as bargaining representative and
requested a conference. On November 3, 1948, the Intervenor re-
quested recognition by the Employer and on November 9, 1948, called a
strike at the Employer's plant. Under date of November 16,1948, the
''Counsel for the International Jewelry Workers Union , AFL, and its Local 125 moved
to intervene on behalf of both organizations . The Petitioner objected to this joint inter-
vention. As the president of Local 125 signed the bargaining agreements claimed to be
a bar to the petition in this case , the hearing officer permitted the local to intervene and
a ruling on the intervention of the international was reserved for the Board . It appears
from the record that both organizations have bargained on behalf of the employees con-
cerned and that the local has acted as agent for the international . We find, therefore,
that the international had sufficient interest to warrant its intervention jointly with
the local . Although the hearing officer should have permitted the joint intervention, the
International was not prejudiced thereby as both the local and international were repre-
sented by the same attorney and the local presented the same issues which the international
apparently would have presented if it had been allowed to intervene in the proceeding.
83 N. L. R. B., No. 173.
1250
UNIQUE ART MANUFACTURING Co. 1251
Employer received a telegram from the Petitioner stating that it would
seek Board certification as bargaining representative . Thereafter on
November 18, 1948, and December 13, 1948, respectively, the Employer
and the Intervenor entered into two written agreements which were
followed by the filing of the instant petition on December 15, 1948.
The Employer and the Intervenor contend that their existing agree-
ments are a bar to the proceeding..
The agreement of November 18, 1948, contains a union-shop pro-
vision which is restricted with regard to its application? In addition
thereto the agreement has a clause to the effect that it is entered into
"with the understanding that the provisions of this agreement are to
become a part of the completed agreement that will subsequently be
entered into, and each of the provisions of this memorandum are to be
considered as part of the subsequent agreement as if the same was
specifically set forth therein." The agreement of December 13, 1948,
is a complete collective bargaining agreement and makes no reference
to the November 18 agreement. Moreover, the December 13 agree-
ment contains provisions on all the substantive matters of the earlier
agreement, including a union-shop provision differing in material re-
spects from that of the November 18 agreement .$
It is a well-established principle of contract law that a subsequent
contract made by the same parties, which completely covers the same
subject matter as an earlier agreement and has nothing on its face to
show it is intended to be supplemental to the original agreement, but
contains terms inconsistent with the former contract, rescinds, super-
sedes, and is substituted for the earlier contract' The subsequent con-
tract becomes the only agreement between the parties because it is their
later act and the most recent expression of their intent with respect to
the subject. In the instant case, the later contract not only completely
covers the same subject matter, but is broader in scope than the Novem-
ber 18 agreement. Moreover, the provisions of the later agreement
with respect to the application of the union-shop clause are inconsistent
with those of the earlier agreement. Thus, in the November 18 con-
tract the clause is qualified as to when it shall take effect, whereas in
the December 13 contract it is effective immediately. Accordingly,
in view of the above circumstances, including the absence of any ref-
erence to the earlier agreement in the later agreement, we find, notwith-
2 The provision expressly states that it "is subject to compliance with the requirement
of the Labor Management Relations Act of 1947."
3 Unlike the union-shop provision in the November 18 agreement , the union -shop pro-
vision in the December 13 agreement has no specific restriction with respect to its appli-
cation There is, however , a severability clause in the latter contract to the effect that
any of its provisions which are contrary to Federal or State law are null and void.
4 Housekeeper Publishing Co. v. Swtift et at., 97 Fed. 290 ( C A 8) ; Wiley at at. v Dimas`
Oil Co., 43 F. (2d ) 51 (C. A . 10) ; Clay v. Connecticut General Life Ins. Co. of Hartford,
Connecticut, 69 F. (2d ) 156 (C. A. 5) ; Duskin v. Pennsylvania -Central Airlines Corpo-
ration, 167 F. (2d) 727 ( C. A. 6, 1948 ) ; Forbes v. Arizona-Parral Mining Co., 16 Ariz., 395,
146 P. 504.
1252 DECISIONS -OF NATIONAL LABOR RELATIONS BOARD
standing -the -iricorporati oil by reference . provision in the earlier'
agreement, that the December 13 contract superseded and abrogated
the agreement of November 18, 1948a ,
We turn now to a consideration of the December 13 contract.. As,
this agreement has a union-shop clause which, as shown herein, is
effective immediately, and it is clear that the Intervenor has not been
certified by the Board under Section$9, (e) (l)-as authorized-to execute,
such- provision, the agreement contains'-an infirmity which prevents it
from being an effective bar to a representation proceeding., Nor is
there merit in the Intervenor's contention that this provision of the
contract is rendered ineffective by the virtue of the severability-clause'
contained therein. This clause merely states that any provision of
the contract which is contrary to any Federal or State Law is null
and void. As the entire contract is, by its terms, in force from De-
cember 13, 1948, through December 31, 1950,7 it is the apparent inten-'
tion of the parties that all the provisions thereof are effective as of
December 13, 1948. In the absence, therefore, of any specific clause
expressly deferring the application of the union-shop provision in-
the contract, we believe that the only reasonable construction to be
given the union-shop provision in its relation to the severability clause
is that the union-shop provision is effective unless and until the proper
tribunal determines that it is invalid.8 To hold otherwise would be
to sanction agreements designed to circumvent both the spirit and
express language of the statute. As this provision is apparently oper-
ative until declared illegal, its mere existence acts as a restraint upon
those employees desiring to refrain from union activities within the
meaning of Section 7 of the Act. Accordingly, we find that the con-
tract of December 13, 1948, is not a bar to the instant petition.9
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. The following employees of the Employer constitute a unit
appropriate for the purposes of collective bargaining within the mean-
ing of Section 9 (b) of the Act:
5 Because we find the November 18 agreement is no longer operative, it is unnecessary
to decide whether or not the union -shop clause in this agreement is sufficiently restrictive
in application , to warrant a determination that a contract containing such clause would
be a bar.
6 Matter of C. Hager & Sons Hinge Manufacturing Company, 80 N. L. R. B. 163;
Matter of Hughes Aircraft Company, 81 N. L. R. B. 867.
T Section 2 of the contract provides that: "It is mutually agreed that the term of this
contract shall be from December 13, 1948 through December 31, 1950."
6 Cf. Matter of Lykens Hosiery Mills , Inc., 82 N. L. R. B. 981.
Y In view of our finding herein, we consider it unnecessary to determine the question
raised by the parties as to whether or not the union -shop provision was in fact being
enforced by the Employer and Intervenor . See footnote 5, supra; Matter of Bond Stores
Incorporated, 81 N. L. R. B. 1177 Nor is it necessary to determine the validity of
the Petitioner 's contention that the contract dated December 13, 1948, was not executed on
that date and was not properly ratified.
UNIQUE ART MANUFACTURING CO. 1253
All production employees of the Employer at its Newark, New
Jersey, plant, excluding office and factory clerical employees, building
and 'machine maintenance employees, machinists and toolmakers,
technical employees, garage mechanics , administrative and executive
employees, guards, watchmen, professional employees, and supervisors
as defined in the Act.
DIRECTION OF ELECTION 10
As part of the investigation to ascertain representatives for the
purposes of collective bargaining with Unique Art Manufacturing
Co., Newark, New Jersey, an election by secret ballot shall be con-
ducted 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-Series 5, as amended, among the employees de-
scribed 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 reinstated prior to the date of
the election, and also excluding employees on strike who are not en-
titled to reinstatement, to determine whether or not they desire to be
represented, for purposes of collective bargaining, by International
Jewelry Workers Union, AFL and Local 125, International Jewelry
Workers, AFL, or by Playthings, Jewelry and Novelty Workers
International Union, CIO, or by neither.
]" Any participant in the election herein may, upon its prompt request to, and approval
thereof by, the Regional Director, have its name removed from the ballot.
844340-50-vol 83-80