Decker Clothes Inc.

Ili the Matter of DECHER CLOTHES' INC., EMPLOYER amd AMALGAMATED CLOTHING WORHEIis OF AMERICA, CIO; PETITIOI4ER Cam, No. 9-RC-332.-Decided May 11, 1949 . DECISION - . . ,4 H ;11 AND ORDER 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 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 and United Construction Workers, District 50, U. M. W. A., herein called the Intervenor, are labor organizations claiming to represent employees of the Employer. 3. The question concerning representation : The Employer and Intervenor contend that their contract covering the employees whom the Petitioner seeks to represent, signed June 24, 1948, and effective to September 1, 1949, is a bar to this proceeding. The petition herein was filed December 6, 1948. The Petitioner con- tends that the contract is not a bar because of expansion within the unit, and for the further reason that the contract is invalid because its dues check-off clause violates the Act. The Employer began operations in February 1948 at Mount Hope, a temporary location 8 miles from its present place of business in Beckley, West,Virginia. Upon opening the Mount Hope plant, the • Employer publicly announced that this was a temporary location and that when the move to the Beckley plant was accomplished its work- ing complement would be expanded to 270 or 300 employees. By March 1948, the Employer had a force of approximately 100 em- ployees, which represented its full working complement at the time the contract was executed in June and until the transfer to the present I The Intervenor's motion to dismiss the petition on the ground that the Petitioner failed to establish, sufficient interest is denied, as the showing of interest is an adminis. trative device of the Board and not subject to direct or collateral attack. Hatter of 0. D. Jennings & Company, 88 N. L. R. B. 518. 83 N. L. R. B., No. 77. 484 DECKER CLOTHES, INC. 485 location in September. Thereafter the force was expanded to its contemplated maximum size of 270 employees. Initially, the Employer manufactured only men's trousers and experimented with the design of other ' garments. Now, in addition to trousers, it manufactures coats, vests, and pilot suits. While there are a number of different operations and types of machinery employed in the new plant, the basic operations in the production of these garments remain the same. Although there has been a substantial increase in the size of the unit since the time when the contract was signed, the record discloses that there has been no material change in the scope and character of the unit: We believe that the employees who constituted the Em- ployer's working force at that time were representative of the employ- ees currently within the unit. Accordingly, we find no merit in the Petitioner's contention that, because of expansion in the unit, the contract is no longer operative as a bar to an election. As to the ' Petitioner's contention that the contract is invalid, the record discloses that Article XI provides for the deduction of union dues from the wages of employees who have executed and delivered written assignments to the Employer. The Petitioner asserts that the contractual provision is nevertheless unlawful because it does not further provide that such assignments shall be for 1 year or the term of the contract, whichever is the lesser. The record shows, however, that the assignments which have been and are being executed by the employees fully conform to the requirements of the Act 2. - Under all the circumstances,'we are satisfied that the assignment-of- wages clause contained in the contract does not constitute an unlawful agreement. It is clear from the terms of the contract and the-actions of the' parties pursuant thereto that they contemplated the ' delivery of lawful written assignments by employees from whose wages dues were to be deducted. At best, the absence of any reference to the dura- tion of the assignments renders the contract ambiguous as to the length of time thee ,parties intended these assignments to run. We shall therefore, under usual rules of contract construction,3 adopt a meaning 2 Section 302 of the Act provides that the restrictions contained therein against pay- ment or delivery of money by employees to their employer shall not be applicable : with respect to money deducted from the wages of employees in payment of member- ship dues in a labor organization : Provided, That the employer has received from each employee on whose account such deductions are made , a written assignment which shall not be irrevocable for a period of more than one year, or beyond the termi- nation date of the applicable collective agreement, whichever occurs sooner. [ Italics supplied.] "An interpretation which makes the contract or agreement lawful will be preferred over one which would make it unlawful." Williston on Contracts, revised edition, Section 620. 844340-50-vol. 83-32 486 DECISIONS OF NATIONAL ,LABOR:, RELATIONS BOARD eonsisteilt'with legality, i..e., that the parties.intended the ;wage assign- ments to'be limited to the period set forth in the statute." . Accordingly, as the petition was filed, nearly 9 months before the expiration of the June 24, contract, and approximately,4 months now remain of its term, we find that the contract is a bar to a present, determination of representatives. We shall dismiss the petition with- out prejudice, however, to the filing of anew petition at an appropriate' time before the contract's terminal date. - . . - ' • ORDER Upon the basis of the entire record in 'this case, the National Labor Relations Board hereby orders that the petition filed herein be, and it hereby is, dismissed without prejudice. CHAIRMAN HERZOG and MEMBER, HOUSTON, dissenting :, , . While we concur with our colleagues in their holding that the con- tract is valid, we do not agree that-the. contract, signed in contempla- tion of a more than 100 percent expansion in the unit, is a bar to an, election. We believe that the expansion of the, unit from 100 to, 270 employees, together with the changes in. the Employer's operations, are sufficient to. warrant the holding of, an, election at, this time. The Board held in Matter of Champion Motors Company, 72 N. L. R. B.. 436, that expansion from 154 employees at the time, of the signing,of a contract to 351 employees at the time of hearing on a representation petition before the Board, was sufficient reason for directing an' elec- tion during the contract term. In the case. before us the percentage of, expansion is even greater-, , Accordingly, we would And, that the contract of June 24, 1948,, is not a -bar.to a present determination of, representatives. .!The contract in this case is distinguishable from that in Matter of C. Hager'd Sons Hinge Manufacturing Co., 80 N. L. R. B. 163, relied upon by the Petitioner. In that case the contract called without qualification for the deduction of dues from wages . We con- strued this as a compulsory check-off provision which, by its terms, compelled the em- ployer to deduct dues even without delivery of -lawful assignments from employees. This Is clearly proscribed by the Act. i r