Kaye Novelty Co., Inc.

26 DECISIONS OF NATIONAL LABOR RELATIONS BOARD employees of leased departments, extras, watchmen, guards, professional employees, and supervisors as defined in the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act. [Text of Direction of Election omitted from publication.] KAYE NOVELTY CO., INC. and UNITED GAS, COKE & CHEM- ICAL WORKERS OF AMERICA, CIO, Petitioner . Case No. 2-RC-5955. November 10, 1953 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 I. L. Broadwin, hearing officer . The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby af- firmed. Upon the entire record in this case , the Board finds: 1. The Employer is engaged in commerce within the mean- ing of the Act. 2. The labor organizations involved claim to represent cer- tain employees of the Employer. 3. The Employer and Local 512, Amalgamated Miscella- neous, Production & Cleaners Union, AFL, herein called the Intervenor , urge as a bar to this proceeding a contract exe- cuted by them on June 1, 1953, for a 1-year term . On June 12, 1953, the Petitioner wrote to the Employer requesting recog- nition, and on June 15, 1953, filed its petition . As the petition was filed soon after the execution of the contract between the Employer and the Intervenor , it was prematurely filed and is barred, unless the contract is prevented from operating as a bar because the union - security provisions in the contract are invalid. The Petitioner does not specifically challenge the validity of the union - security provisions in the contract . However, as the contract is urged as a bar to an immediate election , we shall examine these provisions to determine whether they exceed the limited form of union -security agreement permitted by Section 8 (a) (3) of the Act. ' The contract contains the follow- ing union - security provisions: lReo Manufacturing Corporation, 102 NLRB 1493 We do not believe it material that the Petitioner did not take exception to the union- security provisions of the contract, but rather chose to attack the validity of the contract on other grounds. Where a contract, containing clauses which patently contravene the provisions of the Act, is part of the record, we deem it our duty not to ignore that fact and not to sanction the use of such a contract as a bar to an election. 107 NLRB No. 14 INTERNATIONAL SMELTING AND REFINING COMPANY 27 . . . the Employer will employ only union members in good standing, holding working cards issued by the union. If workers are engaged in the open market, who are not members of the Union, such workers shall obtain tempo- rary working cards from the Union at the end of the second working day after working not more than sixteen (16) hours of tine first two working days, and shall, not later than the thirty-first day after the date of their em- ployment, become members of the Union and thereafter remain members of the Union as a condition of their em- ployment for the term of this agreement. The Employer . . . shall report to the Union at the end of the first and second days the names and addresses of all workers so employed. As these provisions clearly exceed the limited form of un- ion-security permitted by Section 8 (a) (c) of the Act, we find the contract cannot operate as a bar.2 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. We find, in accordance with the agreement of the parties, that all production and maintenance employees at the Employ- er's Brooklyn, New York, plant, including truckdrivers but ex- cluding salesmen, professional, confidential and office -clerical employees, guards, and supervisors, constitute a unit appro- priate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act. [Text of Direction of Election omitted from publication.] Chairman Farmer took no part in the consideration of the above Decision and Direction of Election. ZSan Joaquin Compress and Warehouse Company, 95 NLRB 279 ; Seattle Wholesale Florist Association, 92. NLRB 1186. Cf. McCoy Truck Tire Recap Company, 93 NLRB 667. INTERNATIONAL SMELTING AND REFINING COMPANY, RARITAN COPPER WORKS and UNITED STEELWORKERS OF AMERICA, CIO, Petitioner. Case No. 4-RC-1981. No- vember 10, 1953 SUPPLEMENTAL DECISION AND CERTIFICATION OF REPRESENTATIVES Pursuant to a Decision and Direction of Election' an elec- tion by secret ballot was conducted on August 5, 1953, under 1106 NLRB No. 45. 107 NLRB No. 16.