Canada Dry Ginger Ale, Inc.

CANADA DRY GINGER ALE, INCORPORATED 597 MEMBERS REYNOLDS and STYLES took no part in the consideration of the above Supplemental Decision and Certification of Representatives. CANADA DRY GINGER ALE, INCORPORATED and LOCAL 153, OFFICE EM- PLOYEES INTERNATIONAL UNION, AFL, PETITIONER . Case No. 2-RC-3668. December 19, 1951 Decision and Order Upon a petition duly filed under Section 9 (c) of the National Labor Relations Act, a hearing was held before George Turitz, hearing officer. The hearing officer's rulings made at the hearing are free from preju- dicial 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, Reynolds, and Styles]. Upon the entire record in this case, the Board finds : 1. The Employer 1 is engaged in commerce within the meaning of the Act. 2. The labor organizations involved claim to represent employees of the Employer 2 3. No question affecting commerce exists concerning the representa- tion of employees of the Employer within the meaning of Section 9 (c) (1) and Section 2 (6) and (7) of the Act, for the following reasons: Since about 1941 the Employer has executed contracts with the In- tervenor covering the office employees sought by the Petitioner in this case. During the period before 1948, these contracts contained union- security clauses. However, in the 1948 agreement, which extended the then existing agreements to July 1, 1949, and contained a 60-day automatic renewal clause, it was provided that "Article II and any other reference to Union Shop shall not become operative unless and until the Union shall deliver to Canada Dry under and pursuant to Section 9 E of the Taft Hartley law a certificate authorizing the Union to make an agreement with Canada Dry Ginger Ale, Incorporated re- quiring membership in the Union as a condition of employment." This contract was apparently renewed until 1950. On August 22, 1950, the contracting parties executed a new agreement, to extend 1 The Employer's name appears in the caption as amended at the hearing. 2 American Federation of Office Employees , Local 20940, AFL , herein called the Inter- venor, was properly permitted to intervene on the basis of its existing contract with the Employer. 97 NLRB No. 42. 986209-52-vol. 97-39 598 DECISIONS OF NATIONAL LABOR RELATIONS BOARD from July 1, 1950, to July 1, 1952. This agreement contained a union- security clause in the body of the contract and an analogous deferral provision which was set forth in a separate rider. No union-security authorization election was conducted. The Petitioner filed its petition herein on May 11, 1951. The Employer and the Intervenor assert that their current contract is a bar to the instant petition. The Petitioner contends that the con- tract is not a bar principally because : (1) While the language of the deferral clause is adequate, the rider containing this clause was not executed until after the filing of the petition; (2) the employees con- cerned did not know of the existence of the rider suspending the opera- tion of the union-security clause; and (3) the Employer and the Intervenor, in practice, have required that employees be members of the Intervenor as a condition of employment. We find no merit in the Petitioner's contentions. In support of its contention that the rider was not timely executed, the Petitioner relies on such circumstances as the failure to include the deferral clause in the body of the contract, and the absence of the rider from the mimeographed copy of the contract exhibited to the Petitioner's representative at the Employer's office on May 8, 1951. However, Porteous, the Employer's personnel manager who prepared the agreement and rider, testified that he discovered the inadvertent omission of the deferral clause upon reading the draft of the agree- ment before it was signed by the parties; that the rider containing the deferral clause was then prepared; and that the main agreement and rider were thereafter submitted together to Rodgers, the Employer's vice president in charge of industrial relations, and Losardo, the In- tervenor's business manager, for their signatures. Both Rodgers and Losardo specifically testified that they signed both the main agreement and the rider on August 22, 1950. Upon the entire record, we find that the rider was executed concurrently with the main agreement and before the filing of the instant petition. With respect to the employees' alleged lack of knowledge of the suspension clause, it is sufficient to note that the rider embodying this clause was in writing and signed by both the Employer and the Inter- venor, the employees' bargaining representative.' Notice to the Inter- venor under these circumstances was tantamount to notice to the employees concerned 4 As to the Petitioner's final contention relating to the alleged practice of the parties under the contract, we find it unnecessary to consider such practice in determining the meaning of the contract where, as here, the provisions in question are clear and unambiguous .5 The al- Cf. Flint Lumber Company, 85 NLRB 943 See H. Mueh.istein and Co., 93 NLRB 1273; Gamble-Skogmo, Inc., 75 NLRB 1068. 5 Cf. Knife River Coal Minong Company, 96 NLRB 1. HOLLINGSWORTH & WHITNEY CO. 599 leged illegality of such practice apart from the contract is not litigable in 'a representation proceeding.° As the union-security clause in the existing contract was effectively suspended,' we find that this contract is a bar to a determination of representatives at this time. Accordingly, we shall dismiss the peti- tion filed herein. Order IT IS HEREBY ORDERED that the petition herein be, and it hereby is, dismissed. 6 Pacific Metals Co., Ltd., et at, 91 NLRB 696. 7 In view of our determination that the union security clause was effectively suspended, we do not pass upon the validity of that clause. HOLLINGSWORTH & WHITNEY Co. and INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, AFL, PETITIONER. Case No. 1-RC-2123. December 19, 1951 Supplemental Decision and Second Direction of Election On July 13,1951, the Board issued a Decision and Direction of Elec- tion in the above-captioned proceeding, wherein a specified voting group was established. Thereafter, the Board granted the motion of the Regional Director of the First Region to remand the case for further hearing regarding the voting eligibility of certain employees. Pursuant to the order, a hearing was held before a hearing officer of the National Labor Relations Board. The hearing officer's rulings made at the second hearing are free from prejudicial error and are hereby affirmed. The voting group, as described in the original 'decision, includes all electricians at the Employer's Winslow and Madison, Maine, plants, and excludes, among others, switchboard operators. The eligibility dispute among the parties, now to be resolved on the basis of both hearings, relates to nine employees. Five of these are electricians, whom the Employer and the Intervenor would exclude on the ground that their assignment to electrical work is only temporary. The other four are classified as electricians, but the Petitioner urges their exclu- sion on the ground that in fact they do not perform clerical work. 1. The five assertedly temporary employees, currently assigned as ."temporary" Class C electricians, have held these positions for a long time. As of the date of the second hearing, three had been electricians more than 11/2 years, another for nearly that long, and the fifth for 97 NLRB No. 89.