Evans Milling Co.

In the Matter of EVANS MILLING COMPANY, EMPLOYER and BAKERY, LAUNDRY, DAIRY EMPLOYEES & SALES DRIVERS, LOCAL UNION No. 188, AFL, PETITIONER Case No. 35-RC-198.-Decided July 27,194149 DECISION AND DIRECTION OF ELECTION Upon a petition duly filed, a hearing in this ,case 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. The Employer and the Intervenor 1 moved to dismiss the petition upon the ground of contract bar, which motion will be considered here- inafter. 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. The question concerning representation : The petition herein was filed on February 9, 1949. The Employer and the Intervenor urge, as a bar to this proceeding, a contract between them, executed on June 18, 1945, and amended on October 23, 1945. This contract contains the following provision : This agreement shall become effective on the 18th day of June, 1945, and shall remain in full force and effect until November 1, 1945, and from year to year thereafter, subject however, to the right of either party to terminate or amend this Agreement at the end of any yearly period by written notice to the other party at least thirty (30) days prior to the end of any such year. As the petition herein was filed more than 3. months after the above- mentioned contract had been automatically renewed, such contract ordinarily - would bar a present determination of representatives. 1 The Employees Association , Inc., of Evans Milling Company , herein called the In- tervenor, was permitted to intervene because of its current contract with the Employer. 85 N. L. R. B., No. 71. 391 392 DECISIONS OF NATIONAL LABOR RELATIONS BOARD However, the Petitioner contends that the contract contains certain illegal provisions which prevent it from constituting a bar. Among the provisions referred to by the Petitioner is a union-security clause 2 which states that all regular employees of the Employer must be mem- bers of the Intervenor in good standing, and that all junior employees must become members of the Intervenor.. Such provision is obviously invalid in that it does not satisfy the conditions of the. proviso to Section 8 (a) (3) of the Act.' But the Employer and the Intervenor contend that this provision is rendered ineffective by virtue of a Sup- plemental Agreement, which contains a severability clause 4 stating that any portion of the 1945 contract, as amended, which is contrary to Federal or State law shall be null and void. In addition, the Em- ployer contends that its letter to the Intervenor, dated September 25, 1947, calling attention to the Labor Management Relations Act, 1947, and attempting to cure the unlawful provisions of the contract, in fact constitutes a modification of the contract. We do not agree with either of these' contentions. With regard to the effect of the Em- ployer's letter of September 25, 1947, the record discloses that there was a discussion' between the Employer and the Intervenor concerning the contents of this letter and that there was a verbal acquiescence on the part of the Intervenor, but that there was no written or formal acceptance thereof. We have previously held that "in the absence of a written document, notification of the acceptance of contract pro- posals can not, under any circumstances, create a bargaining contract valid as a bar." 5 It follows, therefore, that the contract in question was not amended or modified by the Employer's letter of September '25, 1947, insofar as the Board's contract bar principles are concerned, and the unlawful provision remains in the contract, The Employer further contends that such provision is rendered ineffective by virtue of the above-mentioned severability clause con- tained in the Supplemental Agreement. We have already held in similar circumstances that the reasonable construction to be given a severability clause in relation to an unlawful union-security clause is that the union-security provision remains effective unless and until the proper tribunal determines that it is invalids As the union-security provision involved herein is operative until declared illegal, its very 2 Contained in Section I, paragraph (e), of the Contract. 8Matter of Morley Manufacturing Company, 83 N. L. R. B. 404. 4 Paragraph 4 of the Supplemental Agreement. 5Matter of Continental Bus System, Inc., 84 N. L. R. B. 670, and cases cited therein. Cf. Matter of Lykens Hosiery Mills, Inc., 82 N. L. R. B. 981. EVANS MILLING COMPANY 393 existence in the contract acts as a restraint upon those employees de- siring to refrain from union activities within the meaning of Section 7 of the Act 7 For the above reasons, we find that the contract of dune 18, 1945, as amended, is not a bar to the instant petition.8 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 appropriate unit : The Petitioner seeks a unit composed of production and maintenance employees. The Employer and the Intervenor contend that the unit should be confined to employees who are paid on an hourly or piece- work basis, such as are covered in their current contract. The record discloses that all production and maintenance employees, with the exception of a janitor whose status will be discussed hereinafter, are presently paid on an hourly basis. The record further shows that the unit sought herein is substantially the same as the one which is now being bargained for by the Intervenor.° Under these circum- stances, and in accordance with our general policy, we find that a plant-wide unit of production and maintenance employees is appro- priate. The Employer and the Intervenor would exclude, and the Petitioner would include, a janitor, whose duties are to clean the building in which the office clericals work. Although the record shows certain factors which would unite the janitor with the clerical employees,10 we believe that the nature of the work which he performs allies him more closely with the production and maintenance employees. Accord- ingly, we shall include him within the unit."' We find that all production and maintenance employees at the Em- ployer's Indianapolis, Indiana, plant, including the. janitor, but ex- cluding office and clerical employees, guards, professional employees, and supervisors as defined in the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act. 7 Matter of Unique Art Manufacturing Company, 83 N. L. It. B. 1250; Matter of C. Hager & Sons Hinge Manufacturing Company, 80 N. L. It. B. 163. 6 The fact that the Employer has not enforced the unlawful union-security clause since September 25, 1947, does not nullify such provision, inasmuch as it still remains in the contract. At the hearing, the Employer's counsel stated that the unit description contained in the petition has the same meaning as the unit described in the contract. 10 He is under the same supervision as the clearicals, is paid weekly as they are, performs all his duties in the building in which they are housed, and historically has been excluded from the production and maintenance unit. u Matter of Sheffield Iron and Steel Company, 77 N. L. It. B. 998, wherein an office-clerical janitor was included within a unit of production and maintenance employees. 394 DECISIONS OF NATIONAL LABOR RELATIONS BOARD DIRECTION OF ELECTION 12 As part of the investigation to ascertain representatives for the purposes 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 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, 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 probationary employees and 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 entitled to reinstatement, to determine whether they desire to be represented, for purposes of collective bargaining, by Bakery, Laundry, Dairy Employees & Sales Drivers, Local Union No. 188, AFL, or by The Employees Association, Inc., of Evans Milling Company, or by neither. MEMBER HOUSTON took no part in the consideration of the above :Decision and Direction of Election. CHAIRMAN HERZOG, dissenting : I cannot agree with my colleagues that the contract of November 1, 1948, is no bar. to an election on this petition. In September. 1947, the -Employer notified the Intervenor by letter that it would no longer -enforce the union-security and check-off provisions of the earlier con- tract then in effect, because of their conflict with the Act as then recently amended. Copies of this letter were posted in the plant and thus brought to the personal attention of the employees themselves. Thereafter, before the contract renewed itself on November 1, 1947, the Employer and the Intervenor met and agreed to eliminate those provisions from the contract. The check-off of dues was thereupon discontinued. The majority holds that the failure to reduce to writing the modi- fications of the agreement makes them ineffective to eliminate- the illegal provisions from the contract, and that therefore it cannot con- stitute a bar under the Hager doctrine.13 But the Board has recog- 32 Any participant in the election directed herein may , upon its prompt request to and -approval thereof by the Regional Director , have its name removed from the ballot. 13 Matter of C. Hager and Sons Hinge Manufacturing Company, 80 N. L. R. B. 163. EVANS MILLING COMPANY 395• nized oral closed shop agreements as satisfying the proviso to Section 8 (3) of the Act .14 Moreover, this is not a situation in which the oral agreement itself would be held to constitute a bar. Here the basic- document is in the usual written form and has been modified, not only by oral agreement, but by the known practice of the parties for more than 18 months. In view of the modification of the contract in. 1947, the notification to the employees of that modification, and the renewal of the contract in 1947 and 1948 as orally modified, I would hold the current 1948 contract to be a bar to an election on this petition.. The contrary holding of my colleagues seems to me to carry the Hager doctrine to an unwarranted extreme. When employees know, from. their employer's written statement, that there is no intention of en- forcing an unlawful union-security provision, I do not see how its presence on a piece of paper, especially in the face of its oral repudia.-- tion by both parties, can "act as a restraint" upon them. 14 Matter of The Cliffs Dow Chemical Company, 64 N. L. R. B. 1419 ; Matter of Genera! Furniture Manufacturing Company, 26 N. L. R. B. 74; Matter of Ansley Radio Corpora- tion, 18 N. L. R. B. 1028; Matter of United Fruit Company, 12 N. L. R. B. 404.