Northern Indiana Public Service Co.

In the Matter of NORTHERN INDIANA PUBLIC SERVICE COMPANY, EM- PLOYER and INTERNATIONAL BROTIEERI-IOOD OF ELECTRICAL WORKERS, AFL, PETITIONER Case No. 13-RC-1145.-Decided September 8, 1950 DECISION AND ORDER Upon a petition duly filed , a 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., The re- quest of the Petitioner and the conditional request of the Employer for oral argument are hereby denied as the record and briefs ade- quately present the positions of the parties. 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 named claim to represent certain em- ployees of the Employer. , 3. No question affecting commerce exists concerning the representa- tion of certain employees of the Employer within the meaning of Sec- tion 9 ( c) and Section 2 (6) 'and (7) of the Act , for the following reasons: On September 23, -1949, the Employer and the Intervenor entered into an agreement effective from June 1, 1949, until May 31, 1951, and thereafter for successive annual periods unless otherwise termi- nated. This agreement is a bar to a present determination of repre- sentatives unless, as claimed by the Petitioner, article VII (4) of the agreement constitutes an illegal union-security provision which affords 1 District 50, United Mine Workers of America and its Local 12775 were permitted, over the objection of the Petitioner, to intervene jointly on the basis of existing con- tractual interests notwithstanding their noncompliance with Section 9 (f), (g), and (h) of the Act. In asking that intervention be denied to District 50 and its Local, the Petitioner urges that the Board reverse its well-settled policy of allowing intervention in the circumstances here presented. (See American Chain and Cable Co., Case No. 4-R-2752, issued February 17, ].948.) The Petitioner relies on the import of the opin- ions of the Supreme Court in the cases of American Communications Association, CIO, at at. v. Charles T. Douds, and United Steel Workers of America, et at. v. N. L. R. B., 339 U. S. 382, to the effect that Section 9 (f), (g), and (h) of the Act manifests con- gressional intent to deny access to the facilities of the Board to noncomplying unions in all circumstances. We see nothing in the foregoing cases to persuade us to alter our policy in this regard. 91 NLRB No. 32. 172 NORTHERN INDIAINTA PUBLIC' SERVICE COMPANY 173 preferential treatment in the hiring, retention, and promotion of employees to those who are members of District 50, contrary to Sec- tion 8 (a) (3) of the amended Act.2 The Petitioner urges further that the mere existence of this provision acts as a restraint upon those employees desiring to refrain from union activities within the meaning of the Act. In support of this contention, it is argued that any reasonable employee reading the clause in question would be- lieve that he was required to join the Union if lie wanted to be no- tified of a vacancy. Accordingly, the Petitioner contends that by reason of the illegality of such provision,3 the agreement cannot oper- ate as a bar to the present petition. The Employer and the Intervenor deny that the clause in question is illegal either as a matter of law or fact and contend that the clause when construed in the light of the language of article VII (1) is clearly an agreement with respect to seniority. The clause in question provides as follows : When a vacancy occurs in any of the classifications contained in Article XI, Schedule A, as a result of a death, discharge, resig- nation, pension or transfer to a classification not contained in Article XI, Schedule A, or the adding of a classification to the bargaining unit, and the vacancy is to be filled, such vacancy shall be reported by the Company to the seven (7) Divisional Secretary-Treasurers of the Local Union who shall notify the Union membership who may bid for such vacancy. The names of the employees who bid for such vacancy shall be delivered to the office of the Manager of Industrial Relations at Hammond by a letter postmarked not later than fifteen (15) days from the date shown on the letter reporting the vacancy. An employee shall be selected for the vacancy from names of those who bid for the job in accordance with the provisions of this Article, Paragraph 1 (a) or (b) provided such. employee qualifies for the job. If no one qualifies among the employees who have bid, or if no employees bid, then the Company may otherwise fill the vacancy. 2 Although the Petitioner argues that as a matter of law article VII (4) is an illegal union-security provision , it also contends that certain aspects of the administration and application of the provision in question demonstrates the discriminatory nature of the clause. However, during the years in which this clause has been in effect no unfair labor practice charge , challenging the validity of the practice under the clause has been filed, and such facts as the record contains clearly show that the clause has not oper- ated to the detriment of nonunion employees . Therefore, were we to dispose of the issue in this case on the basis of a practical construction of article VII (4 ), we should be compelled to find against the contentions of the Petitioner. 3 See C. Hager £ Sons Hinge Manufacturing Company, 80 NLRB 163 ; American Export Lines, Inc., 81 NLRB 1370. 174 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Paragraph 1 of article VII reads that "in promotions, increases or decreases in the working force covered by this agreement, the principle of seniority shall govern ..." The Intervenor was first certified by the Board on October 21, 1943,. after a Board-directed election in which Local B-9 of the Inter- national Brotherhood of Electrical Workers participated. Upon cer tification, the Intervenor and the Employer entered into a collective: bargaining agreement effective until March 1, 1945. In article II of this agreement, entitled Union Security-Check-off, the parties pro- vided for a union shop and for individual checkoff authorizations. In article VII, entitled Seniority, the parties provided in paragraph (1) thereof, that seniority should be the governing principle in pro- motions, increases, or decreases in the working force. In the succeed- ing collective bargaining agreement executed in 1945, the parties introduced for the first time the clause dealing with vacancies as paragraph (4) of article VII. However, articles II and VII con- tinued substantially unchanged through a series of contracts until August 30, 1948, when the parties, because of the intervention of the- Taft-Hartley Act, eliminated that part of article II dealing with the union shop, but left untouched the provision with respect to check- off and all of article VII dealing with seniority. The current agree- ment of the parties is identical in all respects with their 1948. agreement. It is to be noted that article VII (4) does not in so many words. contain a promise on the part of the Employer to promote or trans- fer to vacancies occurring under the conditions of the article none but members of the Union.4 Nor in our opinion can the words be reasonably construed to imply such obligation. The only obligation to be inferred from the language used is that the Employer shall be obligated to notify the Union of the existence of vacancies occurring under the prescribed conditions 5 and to select occupants for existing vacancies from among all employees who have applied for such jobs. The provision clearly requires the Employer to make such selection upon the basis of seniority under the terms set forth in paragraaph (1) of article VII. Under the circumstances, we find that article VII (4) is not a provision dealing with union security or with the preferential treatment of those employees who are members of the Union to the extent that it constitutes an illegal preference. More over, we do not regard the provision in question, under the construe 4 Cf. American Export Lines, Inc., supra, footnote 3.- 5 New hirings are not subject to the provisions of Article VII (4 ). The record shows that the Employer has complete discretion in this field. NORTHE RN INDIANA PUBLIC S ERVICE COMPANY 175 tion given above, as exercising any restraint upon those employees 'desiring to refrain from union activities within the meaning of the Act. Because the current contract is in all other respect sufficient to constitute a bar to the proceeding, we shall dismiss the petition filed herein 6 ORDER Upon the basis of the entire record in this case and for the reasons .set forth above, the National Labor Relations Board orders that the petition filed herein be, and it hereby is, dismissed. CHAIRMAN HERZOG took no part in the consideration of the above Decision and Order. 6 See Hercules Powder Company, Inc., 90 NLRB 607.