Phoenix Manufacturing Co.

PHOENIX MANUFACTURING COMPANY Order . 803, IT IS HEREBY ORDERED that the petition herein be, and it hereby is, dismissed. PHOENIX MANUFACTURING COMPANY and INTERNATIONAL UNION7 UNITED AUTOMOBILE, AIRCRAFT & AGRICULTURAL IMPLEMENT WORKERS OF AMERICA, CIO, PETITIONER. Case No. 4-RC-1353. March 24, 1952 Decision and Order Upon a petition duly filed under Section 9 (c) of the National Labor Relations Act, a hearing was held before Julius Topol, hearing officer. The hearing officer's rulings made at the hearing are free from prej- udicial error and are hereby affirmed. 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 claim to represent employees of the Employer. . 3. The Employer and the Intervenors herein, International Brother- hood of Blacksmiths, Drop Forgers and Helpers of America (herein called the International), and its Local No. 506 (herein called the Local), contend that their current contract, which expires on June 30, 1952, operates as a bar to the instant petition. The Petitioner urges that the contract is not a bar because of (a) a schism within the Local, and the Local's defunctness, (b) an illegal union-security clause, (c) checkoff provisions which violate Section 302 of the Act, and •(d) the termination date. We find no merit in the petitioner's contentions. As to the schism and defunctness issues, the record shows that on November 11, 1951, at a special meeting of the Local called for the purpose, which was attended by 45 out of approximately 148 mem- bers, a resolution was presented to the effect that the Local disaffili- ate from the International and affiliate with the Petitioner. The resolution was carried by a vote of 37 to S. However, it does not appear that the dissident members who attended the November 11 meeting have, since that date, sought a charter from, or functioned as a group affiliated with, the Petitioner. Moreover, since November 11 the Local has continued as formerly to function as the exclusive bargaining representative of the Employer's employees. Thus, it has' held several meetings, and at one of them the membership, with- out a dissenting vote, authorized it to make the per capita tax pay- ment to the International for the month of November; it has also 98 NLRB No. 135. 804 DECISIONS OF-NATIONAL LABOR RELATIONS BOARD recruited new members, received membership dues as checked off by the Employer, maintained its bank account in its own name, and handled grievances.' In these circumstances, we find no warrant in the record for holding that the Local is defunct, or for applying the schism doctrine as enunciated in the Boston Machine case.2 The union-security clause which the Petitioner alleges to be in- valid was executed without the benefit of a union-shop election and reads as follows : The Company agrees to a Union Shop, subject to the provisions of Section 8 (a) (3), 8 (b) (2), and 8 (b) (5) of the "Labor Management Relations Act,- 1947" to become effective whenever the validity of the same shall become duly determined and certi- fied by the National Labor Relations Board pursuant to Section 9 (e) of said Act . . . The operation of the union-shop provision, which is lawful on its face, was by its very terms, deferred until the requirements of Sec- tion 9 (e) had been met. In any event, the recent amendment to the Act 3 has ' eliminated the requirement of union-shop elections. In these circumstances, we see no basis for questioning the validity of this clause.4 As already noted, the Petitioner also claims that the following checkoff provisions are in violation of-Section 302 of the Act, (Title III). The applicable portions read as follows : All members shall be obliged to attend all meetings, regular and special, scheduled by the Union, and shall be excused from them only by permission of the Executive committee. Any employee absent from a regular or special meeting of the Local Union without proper permission as set forth in the above paragraph, shall be assessed by the Union the sum of one (1) dollar, which money shall be deducted from the employee's weekly pay succeeding the meeting and turned over to the Fi- nancial Secretary of the Local. Signed authorization cards for deductions are to be delivered to the Corporation by the Union. These provisions have, however, never been put into effect. For, shortly after the contract was executed in September or October 1950, the Employer's attorney, Levinson, upon being asked for his approval of the contract,5 found these provisions objectionable; he communi- 1 At the grievance meeting with the Employer on December 5, 1951, the Local was repre- sented by officers who conducted the special meeting of Novenrber 11. 2 Boston Machine Works, 89 NLRB 59. See Saginaw Furniture Shops, Inc., 97 NLRB No. 231, and West Steel Casting Company, 98 NLRB 153. 3 Public Law 189, 82nd Cong., Chapter 534, 1st Sess. 4 Saginaw Furniture Shops, Inc., supra, Silvertone Mills, Inc., 97 NLRB 428. S Although it was customary for the Employer to get Levinson's approval before execut- ing bargaining agreements covering the plant involved, to avert a threatened strike the contract was executed on this occasion without Levinson 's prior approval. JEFFERSON CHEMICAL COMPANY, INC. 805 cated his objections to the International's representative and it was orally agreed that these provisions should be inoperative. Indeed, no card authorizing the Employer to deduct the nonattendance charge has ever been executed by an employee, either before or after the oral agreement. Accordingly, as the checkoff provisions were effec- tively removed from the collective bargaining agreement, we find, apart from any consideration of their legality under Section 302, and the effect thereof, that the initial inclusion of these provisions in the contract does not preclude the contract from being a bar.6 Finally, as the current contract between the Employer and the Intervenors does not expire until June 30, 1952, more than 3 months hence, we find that.the petition was prematurely filed and that the immediate direction of an election is therefore not warranted. We therefore conclude that the current contract between the Employer and the Intervenors constitutes a bar to an election at this time. As no question affecting commerce exists concerning the repre- sentation of employees of the Employer within the meaning of Section 9 (c) (1) and Section 2 (6) and (7) of the Act, we shall dismiss the petition. I Order IT IS HEREBY ORDERED that the petition filed herein be, and it hereby is, dismissed. 6 We distinguish this case from those in which the Board has held that an oral agree- ment suspending the operation of an illegal union-security clause does not save the con- tract for bar purposes. The mere existence of an illegal union-security clause, by imposing an unlawful condition of employment, acts as a restraint upon employees desiring to refrain from union activities within the meaning of Section 7 of the Act ; in such circum- stances, an oral agreement to delete the provision from the contract does not effectively eradicate the restraint upon employees which it imposes. Ketchum & Company, 95 NLRB 43. In this case, however, the provision before the Board does not create any condition of employment, and is not per se illegal under any of the provisions of Section 8 of the Act. Salant & Salant, Inc., 88 NLRB 816. As the provision itself has no coercive effect on employees, there is no similar inhibition here against reliance upon the oral agreement to delete it. JEFFERSON CHEMICAL COMPANY, INC. and PIPEFI'r'rERs LOCAL No. 195, AFL, PETITIONER JEFFERSON CHEMICAL COMPANY, INC. and INTERNATIONAL BROTHER- HOOD OF ELECTRICAL WORKERS, LOCAL No. 390, AFL, PETITIONER. Cases Nos. 39-RC-390 and 39-RC-394. March 24, 1952 Decision and Direction of Elections Upon petitions duly filed under Section 9 (c) of the National Labor Relations Act, a hearing was held before Clifford W. Potter, hearing 98 NLRB No. 125. 998666-vol. 98-53-52