Wyckoff Steel Co.

National Labor Relations Board - Board Decisions

Nov 9, 1949

86 N.L.R.B. 1318 (N.L.R.B. 1949)

In the Matter of WYCKOFF STEEL COMPANY, EMPLOYER and DISTRICT
No. 8, INTERNATIONAL ASSOCIATION OF MACHINISTS, PETITIONER
In the Matter of WYCKOFF STEEL COMPANY, EMPLOYER and LOCAL
No. 134, INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS,
A. F. OF L., PETITIONER
Cases Nos. 13-RC-754 and 13-RC-759, respectively .Decided No-
vember 9, 1949
DECISION
AND
ORDER
Upon separate petitions duly filed, a consolidated hearing was held
before Morris Slavney, hearing officer. The hearing officer's rulings
made at the hearing are free from prejudicial error and are hereby
affirmed.'
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 in Case No. 13-RC-754, herein called the IAM ;
the Petitioner in Case No. 13-RC-759, herein called the IBEW; and
Amalgamated Local 453, United Automobile, Aircraft and Agricul-
tural Implement Workers of America, CIO, herein called the UAW,
are labor organizations claiming to represent employees of the
Employer.
3. The question concerning representation :
The Employer and the UAW have had continuous contractual rela-
tions since 1943. The latest contract between them was executed on
April 16, 1947, and was to expire on May 31, 1949. On July 29, 1948,
almost 10 months before the expiration of this contract,2 the Employer
and the UAW executed a supplemental agreement extending this
contract to May 31, 1950, with certain modifications of the standard
hourly wage rates, and some revisions of the check-off 3 and mainte-
3 The hearing officer referred to the Board the Petitioners' motions to amend the descrip-
tion of the units severally requested by them. These motions are hereby granted. See
Matter of Ekco Products Company, 72 N. L. R. B. 1058.
2 The petitions in this case, however, were not filed until after the expiration date of
this contract.
3 The new agreement provided for a voluntary check-off.
86 N. L. R. B., No. 152.
1318
WYCKOFF STEEL COMPANY 1319
Hance of membership provisions. These latter provisions .were pre-
ceded by the following clause :
These provisions shall take effect as of midnight May 31, 1949,
or at any time thereafter during the life of this agreement, but
only if and when they may take effect in accordance and consistent
with provisions of Federal Laws. (Emphasis supplied.)
No election under 9 (e) (1) of the Act was held for the purpose of
authorizing the Employer and the UAW to enter into a maintenance
of membership agreement.
IAM and the IBEW contend that under the Hager Hinge doctrine,4
the presence of an unauthorized maintenance of membership provi-
sion in the agreement as extended vitiates, the contract's effectiveness
is a bar to the instant petitions. The Employer and the UAW con-
tend that their contract is a bar, asserting that, by virtue of the above
quoted clause in their supplemental agreement, the contractual pro-
visions for maintenance of membership have not become effective.5
We have recently said that a union-security provision which con-
tains a provision that it should not become effective until after it is
authorized by an election is clearly lawful, and thus that a contract
containing such a provision may serve as a bar to a present determina-
tion of representatives." On the other hand, we have held that where
the effect of a saving clause, attached to an unauthorized union-
security provision, is not to defer the application of that provision,
but merely to postpone the issue of its legality for future determina-
tion by some proper tribunal, the contract in which the clause appears
is not a bar.7 In so holding, the Board has noted that the mere
presence of an existing union-security provision acts as a restraint
4 Matter of C. Hager & Sons Hinge Manufacturing Company, 80 N. L. R. B. 163, wherein
the Board held that a union -security provision , not authorized by an election under
Section 9 ( e) (1) of the Act , is unlawful and precludes the collective bargaining contract in
which such provision is contained from serving as a bar to proceedings for representation.
8 On May 31, 1949 , the day preceding the effective date of the supplemental agreement,
the Employer posted notices purporting to inform its employees that under the existing
maintenance-of-membership provisions they had the right to withdraw from the UAW
during a period from June 1 to June 15, 1949 . It was conceded, however , that this action
of the Employer was entirely unilateral and was taken without any prior consultation
with the UAW.
6 Matter of Schaefer Body, Inc., 85 N. L. R. B. 1.247 ; Matter of Hazel-Atlas Glass
Company and Clarksburg Paper Company, 85 N. L . R. B. 1305.
7 In Matter of Lykens Hosiery Mills, Inc., 82 N. L. R. B. 981, the Board held that a
contract containing an unlawful union -security provision was not saved as a bar by a
provision that, "loss of membership shall be cause for discharge only tinder the law as
it exists at the time the request is made by the union , which expulsion can be reviewed
in line with the grievance procedure ." In Matter of Unique Art Manufacturing Co., 83
N. L. R. B. 1250, the Board likewise held to be no bar a contract whose union-security
provision had not been authorized in an election, and which contained it clause stating
that any provisions of the contract which were contrary to any Federal or State Law
should be null and void . See also Matter of Evans Milling Company , 85 N. L . R. B. 391
( Chairman Herzog dissenting).
1320 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
upon those desiring to refrain from union activities, within the mean-
ing of Section 7 of the amended Act.' In the present case, however,
the quoted language of the contract clearly discloses the parties' intent
to defer the application of their union-security agreement until such
time as it might lawfully become effective. In these circumstances,
we find that the contract is a bar to a present determination of repre-
sentatives. We shall accordingly dismiss the petitions.9
ORDER
Upon the basis of the foregoing findings of fact and upon the
entire record in this case, the National Labor Relations Board hereby,
orders that the petitions filed herein be, and they hereby are, dismissed.
8 See Matter of C. Hager & Sons Hinge Manufacturing Company, supra , and cases cited
in footnote 7.
0In view of our decision above set forth, we need not determine the other issues pre-
sented by the petitions herein.