National Lead Co.

NATIONAL LEAD COMPANY 651 NATIONAL LEAD COMPANY and UNITED GAS, COKE AND CHEMICAL WORKERS OF AMERICA, CIO, PETITIONER. Case No. 4FWi-1248. December 27, 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 Harold X. Summers, 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-lnember panel [Chairman Herzog and Members 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 Act. 2. The labor organizations involved 2 claim to represent certain employees of the Employer. 3. The MESA contends that its current contract with the Employer effective on March 3, 1950, and expiring March 7, 1952, constitutes a bar to this proceeding.' The Employer, though taking no position at this hearing, has indicated that it considers itself bound by the exist- ing contract. The Petitioner and Local 469 argue that this contract contains an illegal union-security clause and so cannot operate as a bar to a representation proceeding. With respect to a "clarification" of the disputed union-security clause, which clarification was executed after the Petitioner requested recognition by the Employer, both the Petitioner and Local 469 contend : (a) that the alleged clarification is an amendment; and (b) that the amendment coming after the Peti- tioner's request for recognition was too late to cure any defect in the contract insofar as this proceeding is concerned. The Petitioner fur- ther contends that there has been a schism in the MESA such as would preclude the contract from operating as a bar. 1 In view of our decision In this case , we find it unnecessary to pass upon the rejection at the hearing of the offers of proof with respect to the alleged schism. 2 Intervening in this case are the Mechanics Educational Society of America, Local 22, herein called the MESA, on the basis of a current contract with the Employer , and Local 469, International Brotherhood of Teamsters , Chauffeurs, Warehousemen and Helpers of America, AFL, herein called Local 469. During the informal Investigation , Local 917, International Brotherhood of Teamsters , Chauffeurs, ' Warehousemen and Helpers of America, AFL, made a claim of interest . However, at the opening of the hearing, Local 917 withdrew its claim and did not further participate in the proceedings. 8 The record shows that this agreement is between the Employer and Local No. 21. The national representative of the Mechanics Educational Society of America testified that the error was due to a conflict In the numbering of locals ; that the existing Local No. 21 had no interest in this proceeding ; and that Local No. 22 was the proper designation for the signatory local. 97 NLRB No. 93. 652 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The union-security provision of the Employer-MESA contract reads as follows : 3. The Company recognizes the Union as the sole and exclusive Collective Bargaining Agent of all its eligible employees in the matter of rates of pay, hours of work, adjustment of grievances and other conditions of employment. The Company will not re- tain in its employ any eligible individual who is not or does not within thirty (30) days after his employment become and remain a member in good standing of Local 21, M. E. S. A. Pursuant to the regulations held forth by the National Labor Relations Board for the Union Shop Election held December 16, 1948 then certified by the National Labor Relations Board on December 24, 1948. Examining this provision in the light of the decision of the Board in the Charles A. Krarz+ase Milling Co. case,4 we find that the above clause, by not according a 30-day grace period to persons employed more than 30 days who were not already members of the union on the effective date of the contract, provides for union security in excess of that permitted by Section 8 (a) (3) of the Act, and is unlawful within the meaning of that section. The contract, therefore, cannot operate as a bar to this proceeding. With respect to the so-called "clarification" of the union-security clause,5 which we find constitutes an amendment to the contract of March 3, 1950, and not merely a statement of the actual practice of the contracting parties, as contended by the MESA, the record shows that it was signed on June 23, 1951, whereas the Petitioner's demand for recognition was made on June 20, 1951. However, within 10 days of making the claim, on June 28, 1951, the Petitioner filed the petition in this case. Because the claim for recognition was made during the period in which the unlawful union-security clause was- in effect, and as the petition was filed within 10 days of the making of that claim, the fact that the defect in the contract had been remedied by the June 23,1951, amendment, cannot bar the petition in this case.e We find no 4 97 NLRB No. 536 " The pertinent parts of this "Memorandum to Agreement" read : . . . It is agreed between the Parties that the Union Shop gecurity Clause in the Present Agreement . . . dated March 8, 1950, in order to comply with certain Interpretations and Regulations of the National Labor Relations Board be changed to read as follows : As a condition of employment all employees covered by this agreement shall on or after the 30th day after the execution of this agreement, or in the case of new employees, on or after 30 days following the beginning of such employment, shall become and remain members in good standing . . . In M. E S. A. Local 22. . . . 6 The General'Electric X-Ray Corporation case, 67 NLRB 997, decided that an otherwise valid contract could not constitute a bar if it was executed after a claim of representation was made, provided that a formal petition was filed within 10 days after the making of the claim. NATIONAL LEAD COMPANY 653 merit in MESA's contention that the unlawful union-security provi- sion of the contract was not followed in actual practice by the con- tracting parties. The Board has held that the mere existence of an unlawful union-security provision acts as a restraint upon any employee entitled to refrain from union activity during the 30-day grace period provided for in Section 8 (a) (3) of the Act.' 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 and the MESA contend that the existing unit established by the contract, consisting of the production, maintenance, plant clerical, and office clerical employees at the Employer's Perth Amboy, New Jersey, plant, is appropriate. Although the Petitioner and Local 469 agreed at the hearing that the existing unit was appro- priate, they did so only in the interest of speed and to avoid delay. The record shows that both the Petitioner and Local 469, without giv- ing specific reasons therefor, have expressed doubts as to the propriety of including plant and office clerical workers with the production and maintenance employees. In accordance with our customary policy, we shall include the plant clerical employees," but exclude the office clerical employees .9 In view of the fact that the Petitioner has not made an adequate showing of interest among the office clerical em- ployees, we shall not direct an election among these employees.10 We find that all production, maintenance, machine shop, and power- house employees, clerks and porters, and plant clerical employees of the Employer at its Perth Amboy, New Jersey, plant, excluding all office clerical employees, the plant cashier, the purchasing agent, con- fidential secretaries, medical technicians, confidential employees of the industrial relations department, truck drivers and helpers,u guards, and 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.] ' Aluminum Company of America, 93 NLRB 1190 ; Anaconda Wire and Cable Company, 90 NLRB No . 5, not reported in printed volumes of Board decisions . Because there exists no ambiguity in the meaning of the union -security provision , the hearing officer properly rejected the MESA's offer of proof as to the actual practice of the parties with respect to.the enforcement of that provision . Cf Newton Investigation Bureau, 93 NLRB 1574. 8 United States Smelting, Refining and Mining Company, 93 NLRB 1280. 8 J. P. Stevens t Co., Inc., 93 NLRB 1513. 10 Chase Aircraft Company, Inc., 91 NLRB 288. 11 Tuck drivers and helpers are currently represented by Local 469, an intervenor in this proceeding.