Reading Hardware Corp.

In the Matter of READING HARDWARE CORPORATION, EMPLOYER and STEEL WORKERS FEDERATION, PETITIONER Case No. 4-RC-406.-Decided August 9, 194.9 DECISION AND DIRECTION OF ELECTION Upon a petition duly filed, a hearing Was held before Julius Topol, hearing officer. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed? The Intervenor moved to dismiss the petition, and ruling on the motion was reserved for the Board. For reasons stated below, the motion is hereby denied. The request of the Intervenor for oral argument is hereby denied, as the record and the briefs adequately present the positions 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 Houston, Reynolds, and Murdock]. 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 involved claim to represent certain em- ployees of the Employer.2 3. The Intervenor and the Employer maintain that a contract be- tween them is a bar to the present proceedings. The Petitioner, on the other hand, takes the position that the contract is not a bar to a present determination of representatives. 'Over the objection of the Petitioner , the hearing officer permitted the Intervenor to produce evidence calculated to show the oral understanding of the Intervenor and the Employer with respect to the meaning of certain clauses in their contract, and the explana- tion given by the Intervenor to its members regarding the same subject. As the written contract speaks for itself, we do not believe that such evidence should have been admitted. However, in view of our ultimate disposition of the case , we are of the opinion that the rights of the Petitioner were not prejudiced by the hearing officer 's ruling. : United Steelworkers of America , affiliated with the Congress of Industrial Organizations, herein called the Intervenor , appeared at the hearing and was permitted to intervene because of its current contractual interest. 85 N. L. B. B., No. 112. 610 READING HARDWARE CORPORATION 611 The contract in question was executed in August 1948. It provides. that it shall be effective from February 15, 1948, until June 1, 1950,. subject to automatic renewal thereafter for successive 1-year terms, unless terminated by either party upon 60 days' written notice.' The petition herein was filed on April 5, 1949, hence the contract would constitute a bar, were it not for certain provisions contained in Article II. These provisions are as follows : Section 2. The Company agrees that all present employees who have been in its employ for a period of thirty (30) days or more must within fifteen (15) days after execution of this Agreement become members of the Union and shall, as a condition of employ- ment, maintain their membership in good standing for the dura- tion of this Agreement. All future employees shall be required to become members of the Union sometime during their first thirty (30) days of employment and shall thereafter maintain their membership in good. standing for the duration of this Agreement and any extension thereof. Section 5. This article shall be binding on the Company only insofar as the law of the United States of America and the Com- monwealth of Pennsylvania allows it to perform. As the Intervenor has not been certified by the Board under Section 9 (e) (1) as authorized to execute a union-security contract,' the agree- ment contains an infirmity which prevents it from being an effective bar to a representation proceed] ng.5 Nor are the union-shop provisions of the contract rendered ineffective by virtue of Article II, Section 5, quoted above. In the absence of a specific clause expressly deferring application of the union-shop provision, we believe that this clause can only be construed to mean that unless and until a tribunal author- ized to interpret and administer the law determines that a particular discharge for nonmembership in the Intervenor is unlawful, the union security provisions of the contract are fully effective.° Moreover, it 3 On January 15, 1949, the Intervenor and the Employer executed a supplement to this contract. The changes made by the supplement, however, are not material herein. As the Intervenor has not complied with the filing requirements of Section 9 (f), (g), and (h ) of the Act, the Board could not have certified the Intervenor even if requested to do so. "Matter of C. Hager cf Sons Hinge Manufacturing Company, 80 N. L. R. B. 163; Matter of General Electric Company, 80 N. L. R. B. 169; Matter -of Laurel Textiles, Inc., 84 N. L. R. B. 262; Matter of Hughes Aircraft Company, 81 N. L. R. B. 867; Matter ;of Merchants Fire Dispatch, 83 N. L. R. B. 788; and Matter of Newburg Machine Company, 84 N. L. It. B. 657. 6 Matter of Lykens Hosiery Mills , 82 N. L. It. B. 981 ; Matter of Unique Art Manufae- turing Co., 83 N. L. It. B. 1250; Matter of Aluminum Ore Company, 85 N. L. R. B. 121, footnote 7. 857829-50-vol. 85-40 612 DECISIONS OF NATIONAL 'LABOR RELATIONS BOARD is immaterial that, in fact, no action has been taken pursuant to the union-security provisions, as the mere existence of an illegal union- security provision acts as a restraint upon those desiring to refrain from union activities.7 The Intervenor contends, however, that the principles recited above do not apply here because at the time of the execution of the contract the Intervenor and the Employer orally agreed that the union-secu- rity provisions would not be enforced so long as the present Act re- mained in effect," and the Intervenor explained this arrangement to its members.9 We have previously held, however, that an oral under- standing between the parties to a contract containing an illegal union- security provision that such provision would not take effect until after a union-security election was held does not operate, in itself, to re- move the infirmity so as to constitute such a contract as a barl° It follows that a mere unilateral announcement to some of the employees affected can have no greater force. Accordingly, the contract in ques- tion is not a bar to a present determination of representatives. 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 Employer is engaged in the manufacture, sale, and distribu- tion of hardware and lawn mowers. The parties are in agreement that the unit should consist of all maintenance and production em- ployees, excluding foremen, assistant foremen, nonworking super- visors, salaried employees, clerks not engaged in production work, armed guards, and cafeteria employees 11 This is the unit for which the Intervenor and the Employer have bargained since at least August 1948. There is some question with respect to the inclusion or exclusion of the watchmen. Although no evidence was adduced with respect 4 Matter of Lykens Hosiery Mills, supra ; and Matter of Unique Art Manufacturing Co., .supra, footnote 9. 8 A witness for the Intervenor testified that the-parties, at the time of the negotiations, understood that Sections 2 and 5 of Article II were Included only to eliminate the necessity for renegotiation in the event that the present Act was repealed or amended , and that otherwise the union-security provisions were to be null and void. 9 'Andrew Kondrath, who participated in the negotiations as a representative of the Intervenor, testified that at the time the contract was being considered , by. the Intervenor's membership, he told the membership that the Employer would comply with the union- security provisions until such time as it was prohibited by law from doing-so . - A witness for the Intervenor, however, testified that Kondrath informed the membership that the union-security clause was not enforceable so long as the present Act was in effect.. We, deem it unnecessary to resolve this conflict. 10 Matter of Bond Stores, Incorporated, 81 N. L. it. B. 117. Cf. Matter of Evans Milling Company, 85 N. L. it. B. 391. . 31 At the time of the hearing, the Employer employed no armed guards or cafeteria employees. • READING HARDWARE CORPORATION 613 to the watchmen's duties, the Employer's attorney stated without con- tradiction that they spend all of their time making rounds and guard- ing the Employer's property . Accordingly, we find that the watch- men are "guards" within the meaning of the Act, and . we shall exclude them from the unit 12 We find that all production and maintenance employees of the Em- ployer, excluding time-study men, timekeepers , expediters , production clerks, clerks not engaged in production work, watchmen, armed guards, cafeteria employees , foremen, assistant foremen, nonworking supervisors , and other supervisors , constitute a unit appropriate for the purposes of collective bargaining , within the .meaning of Section 9 (b) of 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 those employees who have since quit or been discharged for cause and have not been rehired or rein- stated prior to the date of the election, and also excluding employees on strike who are not entitled to reinstatement, to determine whether or not they desire to be represented, for purposes of collective bar- gaining, by Steel Workers Federation .113 " Compare Matter of Baker Manufacturing Company, 75 N. L. R. B. 1012. 13 Having failed to achieve compliance or to initiate steps for compliance with the filing requirements of Section 9 (f), (g), and (h) of the amended Act, the Intervenor will not be accorded a place on the ballot. Matter of Sigmund Cohn Mfg. Co., Inc., 75 N. L. R. B. 177. .