The A. & M. Woodcraft, Inc.

In the Matter of TAE A. & M. WOODCRAFT, INC., EMPLOYER and JOHN COLANGELO, PETITIONER and FURN1TURE WORKERS UNION, LOCAL 76-B, CIO, UNION Case No.2-RD-73.-Decided July 22,1919 DECISION AND DIRECTION OF ELECTION Upon a petition for decertification duly filed, hearing in this case was held before Jack Davis, 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 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 the case, the Board finds: 1. The Employer is engaged in commerce within the meaning of the National Labor Relations Act. 2. The Petitioner is an employee of the Employer and alleges that the Union is no longer the representative, as defined in Section 9 (a) of the Act, of the employees designated in the petition. The Union is a labor organization recognized by the Employer as the exclusive bargaining representative for the employees designated in the petition. 3. The Union's current collective bargaining contract with the Em- ployer is dated March 24, 1948, and is effective until March 15, 1949; the contract has a provision for yearly automatic renewal in the absence of a 30-day notice in writing, prior to the expiration date of any contract year, of an intention to terminate the contract. The Union contends that this agreement was renewed in February 1949 and, therefore, that it constitutes a bar to a present determination of 1 The hearing officer's ruling permitting testimony on the question of contract bar is not error. In resolving the issues of contract bar in decertification cases , the Board applies the same rules as have been and are still applied with respect to petitions for investigation and certification . See Matter of Willborn Bros. Company, Inc., 77 N. L. R. B. 1026; Matter of International Harvester Company, 77 N. L. R. B. 242. 85 N. L. R. B., No. 64. 322 THE A. & M. WOODCRAFT, INC. 323 representatives. The Employer challenges the validity of the con- tract as a bar upon the ground that the contract contains an unauthor- ized union-security provision.2 The Union admits that it has not been certified by the Board, pur- suant to Section 9 (e) (1) of the Act, as being authorized to execute such a union-security provision, and in fact could not be so certified because it has failed to comply with the filing requirements of Section 9 (f), (g), and (h) of the Act. The Union contends, however, that the contract is saved from invalidity by reason of a severability clause contained therein.3 In support of its contention the Union argues that a reading of the severability provision together with the union- security provision makes it clear that the parties did not intend the union-security provision to be immediately effective and that it is, equally clear from the language that such clause was to be effective only if valid under existing law. We are unable to agree. We believe that the clauses reasonably lend themselves to the interpretation that the parties intended the union-security provision to have a present and immediate application and that its effectiveness was not to be de- ferred until such time as its validity or invalidity had been authori- tatively determined. It seems to us that if the parties had intended the union-security provision to have only future application, such intent should have been expressed in clear and unambiguous language.4 Because the contract contains such an unauthorized union-security provision, we find, for this reason, and without regard to other con- siderations, that the contract cannot serve as a bar to a present determi- nation of representatives; 5 nor is it material, as we said in the Lykens case,6 that in fact no action has been taken by the parties pursuant to the union-security provision. The mere existence of the provision 2 The union-security clause is contained in Section II of the contract. It provides that "(a) All employees who are members of the union, and all employees who may thereafter become members, shall remain members of the union in good standing for the duration of this agreement. (b) A duly authorized representative of the union shall have the right to visit the shop of the Employer on official business at all times when the shop is operating for the purpose of ascertaining whether the conditions of this agreement are being observed." 3 The severability provision set forth in Section XXI-(A) provides as follows : "Shouldl any paragraph or clause herein contained be rendered or declared illegal or an unfair labor practice by reason of any existing or subsequently enacted legislation or by any decree of a court of competent jurisdiction or by the decision of any governmental agency, such invalidation or such part or portion of this agreement shall not invalidate the remaining portions hereof. In the foregoing event, the Union shall be entitled to such paragraph or clause in replacement most favorable to it as shall be valid." 4Matter of Unique Art Manufacturing Company, 83 N. L. R. B. 1250. 6 Matter of C. Hager & Sons Hinge Manufacturing Company, 80 N. L R. B. 163 ; Matter of General Electric Company, 80 N. L. R. B. 169; Matter of General Electric Company (Plastic Division of the Chemical Department), 81 N. L. R. B. 476; Matter of Lykens- Hosiery Mills, Inc., 82 N. L. R. B. 981 ; Matter of Unique Art Manufacturing Company,. supra, note 4. 6 Supra, note 5. 857829-50-vol. 85-22 324 DECISIONS OF NATIONAL LABOR RELATIONS BOARD acts as a restraint upon those desiring to refrain from union activities within the meaning of Section 7 of the Act. We find that a question affecting commerce exists concerning the representation of employees of the Employer within the meaning of Section 9 (c) and Section 2 (6) and (7) of the Act. 4.; In accordance with the stipulation of the parties, the following employees of the Employer constitute an appropriate unit for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act : All woodworkers, assemblers, laborers, porters, cabinet makers, machinemen, packers, and helpers employed at the Employer's New York, New York, plant, excluding clerical and office employees, non. working foremen, professional employees, guards, watchmen, and supervisors as defined in the Act. DIRECTION OF ELECTION' As part of the investigation to ascertain representatives for the pur- poses 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 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 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 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 Furniture Workers Union, Local 76-B, CIO. ' Although the Intervenor is not in compliance with Section 9 (f), (g), and (h) of the Act, the Board will nevertheless direct an election on the decertification petition and place the Intervenor's name on the ballot. In accordance with well established Board policy, the Union will be certified if it wins the election providing that at such time it is in compliance. Absent such compliance , the Board will certify only the arithmetical results of the election . See Matter of Harris Foundry t Machine Company, 76 N. L: It. B. 118.