The Standard Lime and Stone Co.

628 DECISIONS OF NATIONAL LABOR RELATIONS BOARD visor.8 Accordingly, we find that the patrol sergeants are supervisors and shall exclude them from the unit .9 We find that all plant-protection employees at the Employer's Texas City, Texas, plant, excluding all supervisors as defined in the Act,"' constitute a unit appropriate for purposes of collective bargaining within the meaning of Section 9 (b) of the Act. [Text of Direction of Election omitted from publication in this volume.] MEMBERS MURDOCK and STYLES took no part in the consideration of the above Decision and Direction of Election. 8 Evening News Publishing Company, 93 NLRB 1355 ; Salt Lake Refining Company, 86 NLRB 68 ; The Texas Company, Salem Gasoline Plant, 85 NLRB 1211 ; Pan American Refining Company, supra, footnote 6. 6 The gateman -patrol sergeant works as a gateman 4 days a week and as a patrol sergeant on the night shift 1 day a week. As he performs the same duties and has the same re- sponsibilities on the night shift as the full-time patrol sergeants , we find that the gateman- patrol sergeant is a supervisor and shall exclude him from the unit. See footnote 7, supra. 10 Excluded in this classification in accordance with the agreement of the parties are the chief and assistant chief of the plant-protection department. THE STANDARD LIME AND STONE COMPANY and UNITED STONE AND ALLIED PRODUCTS WORKERS OF AMERICA, CIO, PETITIONER. Case No. 8-RC-1231. July 06, 1951 Decision and Direction of Election Upon a petition duly filed under Section 9 (c) of the National Labor Relations Act, a hearing was held before Carroll L . Martin, hearing officer. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed The Employer's request for oral argument is denied , inasmuch as the record and the briefs, in our opinion, adequately 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 Act. 1 At the hearing, District 50, United Mine Workers of America , and Its Local 12965, here- inafter called the Intervenor, were permitted to intervene in this proceeding , notwithstand- ing their noncompliance with the filing requirements of the Act. The Petitioner objected to the allowance of the intervention upon the ground of the Intervenor 's noncompliance and upon the further ground that the contract contains an illegal union -security clause. We have previously held that it was not error to permit the intervention of a noncomplying union which has a colorable claim to a contractual interest . The Liquid Carbonic Corpora- tion, 85 NLRB 284; Cf. Northern Indiana Public Service Corporation, 91 NLRB 172. See footnote 9, infra. 95 NLRB No. 66. THE STANDARD LIME AND STONE COMPANY 629 '2. The labor organizations involved claim to represent certain employees of the Employer. 3. The Employer and the Intervenor contend that a contract be- tween them, dated June 27, 1950, and terminable upon 60 days' notice prior to June 27, 1952, is a bar to this proceeding. The Petitioner contends that the contract does not constitute a bar because it contains a maintenance-of-membership clause which has not been authorized by an election held pursuant to Section 9 (e) of the Act. As to this contention, the position of the Employer and the Intervenor is that. the provision in question was intended to be no more than a provisions for voluntary checkoff of union dues, that employees are free to join: or to refuse to join the Intervenor, and that members of the Intervenor are free to withdraw their membership and cancel the authorization for dues deduction at any time. The proviso of the contract in ques- tion is as follows : ARTICLE II-MAINTENANCE OF MEMBERSHIP AND VOLUNTARY ASSIGNMENT Sec. 1: All employees in the eligible unit at the plant shall have the right to .belong to or not to belong to the Union, and upon receipt of written authorization from any employee who is a member of the Union the Company agrees that such employee shall maintain his membership in the Union for a period. not to exceed one (1) year from the date of the written authorization, or the length of this contract if terminated prior to one (1) year after the date of said authorization, and the payment of dues shall satisfy this requirement. [Emphasis supplied.] Sec. 2: For the purpose of Sec. 1 the dues authorization to be signed by each individual employee who is a member of the Union and sent to the Employer, shall be in the following form : AUTHORIZATION I hereby authorize The Standard Lime and Stone Company, Woodville, Ohio, plant, to make a deduction of $2.00 from the first pay due me in each month after this authorization is de- livered 'to the Employer, to be applied on union dues, and I au- thorize the Employer to remit the same to the Secretary-Treasurer of District 50, United Mine Workers of America, Washington,. D. C. This authorization is to remain in full force and effect for a period of not to exceed one (1) year from its date -or the length of the existing agreement, whichever is shorter. Dated-------------------------------------------------- Clock No.---------------------------------------------- (Signed)------------------ ----------------------- 630 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On May 2, 1951, following the filing of the petition herein, the Em- ployer and the Intervenor executed a supplemental agreement, setting forth their understanding of the provision, as described above. We find in the quoted provision no such ambiguity as would permit reference to the prior oral statements of the Employer and the Inter- venor as to the intended effect of the provision.2 By the terms of the provision, the Employer agrees that employees who have executed the dues authorization form shall maintain their membership in the Intervenor. The fact that the provision does not state that mainte- nance of membership thereafter shall be a condition of employment does not prevent the provision from operating as a union-security clause. That it is a condition of employment may be implied by ap- plication of the usual rules of construction.,' In any event, the clear effect of the provision is to lead employees to believe that the au- thority of the Employer will be applied to require maintenance of .membership. The very existence in the contract of the provision therefore acts as a restraint upon employees desiring to refrain from union activities within the meaning of Section 7 of the Act.4 It is immaterial that no action has been taken pursuant to the maintenance ,of membership provision 5 or that, since the filing of the petition I)erein, the Employer and the Intervenor have entered into a supple- mental agreement rescinding the proscribed provision 6 Accordingly, inasmuch as no election has been held pursuant to Section 9 (e) of the Act, we are persuaded that the contract should not operate as a bar to a current 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 following employees of the Employer constitute a unit ap- propriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act: 2 Sonotone Corporation, 90 NLRB 1236 ; Hazel Atlas Glass Company, '85 NLRB 1305; Western Can Company, 83 NLRB 489. Compare with 0. B. Andrews Company, 86 NLRB 59. Salant & Salant, Inc., 88 NLRB 816, 817 ; Salant & Salant, Inc., 87 NLRB 215, 216-217; Hughes Aircraft Company, 81 NLRB 867, 869 , footnote 8. The doctrine of The Iron Fireman Manufacturing Company, 69 NLRB 19, is distinguished in Salant & Salant, 87 NLRB 215, 217. 4 Hazel-Atlas Glass Company, 85 NLRB 1305, C.- Hager & Sons Hinge Company, 80 NLRB 163. Compare with Monolith Portland Cement Co., 94 NLRB 1358. 5 Wood Preserving Division of the !Coppers Company, Inc., 90 NLRB 125; Hazel-Atlas Glass Company, supra; Reading Hardware Corporation , 85 NLRB 610. G Anaconda Wire and Cable Company. 90 NLRB No. 5; Wettlauffer Manufacturing Cor- poration, 89 NLRB 696; All Metal Pickling Corporation, 85 NLRB 857. THE EVANSVILLE UNION STOCKYARDS COMPANY 631 All production and maintenance employees at the Employer's Wood- ville, Ohio, plant, excluding office and clerical employees,' laboratory employees,8 guards, foremen, and supervisors as defined in the Act. [Text of Direction of Election omitted.from publication in this volume.] Included in this category , in accordance with the agreement of the parties, is the supply house employee , who works under the supervision of the office supervisor. 8 Laboratory employees are excluded in accordance with the stipulation of the parties. THE.EVANSVILLE UNION STOCKYARDS COMPANY and CHAUFFEURS, TEAMSTERS & HELPERS LOCAL #215, AFFILIATED WITH THE INTER- NATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSE- MEN AND HELPERS OF AMERICA, A. F. OF L., PETITIONER. Case No. 35-RC-197. July 26,1951 Decision and Direction of Election Upon a petition duly filed under Section 9 (c) of the National Labor Relations Act, a hearing was held before Seymour Goldstein, 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 Act, the Board has delegated its powers in connection with this case to a three-member panel [Members Houston, Murdock, and Styles]. Upon the entire record in this case, the Board finds : 1. The Employer, an Ohio corporation, is engaged in the operation of stockyards at Evansville, Indiana. It is one of the 68 largest of such enterprises in the United States. The Employer's stockyards provide the physical facilities for the sales of livestock 1 and service the live- stock from the time they reach the yards to the time the purchasers take delivery, including weighing, feeding, watering, and generally caring for the animals. During the last year, the Employer handled 625,021 hogs, cattle,, calves, and sheep. Approximately 50 to 60 percent of this livestock, which is received from independent farmers and other producers, represent shipments from outside the State of Indiana. A substantial portion of this livestock handled by the Employer was shipped outside the State. In the latter connection, the record shows that, during the last year, one order buyer, I. R. Whiting, purchased almost $7,000,000 'The Employer takes no direct part in the sales transactions . Sales are made by two commission companies which act as agents for the producers, and purchases are handled. by meat packers or individual order buyers acting on their behalf. 95 NLRB No. 70.