Continental Can Co., Inc.

682 DECISIONS OF NATIONAL LABOR RELATIONS BOARD because of her status as a confidential employees Secondly, the possible conflicts in allegiance adverted to by the majority are ob- viously not present in this case, the Petitioner having been included in the unit at the insistence of the very Union which now seeks to dis- qualify her, and with the admitted acquiescence of the Employer. Finally, we believe that the purposes of the Act are frustrated, rather ,than effectuated, by withholding from an employee the express statu- tory procedures for terminating the authority of the agent which has been serving as her bargaining representative.? Under the circumstances of this case, we would find that the Peti- t ioner is a proper party to file the petition, and we would direct an immediate election. See cases cited in footnote 4, supra. 7 Of course, it is unnecessary here to decide , nor do we, whether a confidential employee not currently being represented by the statutory agent in the unit involved may properly file a decertification petition. CONTINENTAL CAN COMPANY, INC. and UNITED STEELWORKERS OF AMERICA, CIO, PETITIONER. Case No. 10-RC-1836. August 21, 1952 Decision and Order Upon a petition duly filed under Section 9 (c) of the National Labor Relations Act, a hearing was held before Allen Sinsheimer, Jr., hear- ing officer. The hearing officer's rulings made at the hearing are free from prejudicial 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. 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: The Employer and the Intervenor, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Local #79, A. F. L., urge as a bar to this proceeding a contract between them, effective by its terms until May 22, 1953. The Petitioner con- tends that the contract should not operate as a bar, alleging that it contains (1) a maintenance-of-membership provision illegal under Florida law, and (2) a so-called "harmony pledge" illegal under Sec- tion 8 (a) (3) of the Act. As to the first contention, the Florida State Constitution provides that: - 100 NLRB No. 118. CONTINENTAL CAN COMPANY, INC. 683 The right of persons to work shall not be denied or abridged on account of membership or non-membership in any labor union or labor organization ; provided that this clause shall not be con- strued to deny or abridge the right of employees, by and through a. labor organization or labor union, to bargain collectively with their employer. The Petitioner has cited no cases, and we have found none, in which the Supreme Court of the State of Florida has construed the purpose and effect of this provision. In the absence of such an authoritative construction of what otherwise appears to us to be unclear, we believe that it would be improper for this Board to undertake to decide whether, as the Petitioner contends, the maintenance-of-membership provision herein is illegal Turning to the second contention, the harmony pledge provides, in part, that the Employer "will not allow any employee who is not a Union member to do anything that might undermine the Union," and that it "will discipline any employee found guilty of this." In our opinion this language is so vague and ambiguous as to lack meaning. In the absence of any evidence that it has been discriminatorily applied, we do not find that it is illegal under Section 8 (a) (3). Accordingly, we reject the Petitioner's contentions herein, and find that the current contract between the Employer and the Intervenor constitutes a bar to this proceeding. We shall therefore dismiss the petition. Order IT IS HEREBY ORDERED that the petition filed herein be, and it hereby is, dismissed. MEMBER PETERSON took no part in the consideration of the -above Decision and Order. ' The same position was taken , in essence , by the Supreme Court of the United States in American Federation of Labor et at v. Watson, Attorney General, of at, 327 U. S. 582. There, in remanding to the United States District Court for the Southern District of Florida a case involving the very provision of the Florida State Constitution with which we are here concerned , the Supreme Cyourt pointed out some of the possible ambiguities in the provision. Thus, it said : There is, in the first place , some question whether this new provision of Florida's constitution is self-executing or requires legislation for its enforcement. The District Court itself took the view that it is not self -executing and noted that no enforcing legislaion has been enacted If, on the other hand, it be assumed, as Florida's Attorney General asserts , that this constitutional provision is self -executing, we do not know what sanctions Florida will afford for its enforcement . It provides that "The right of persons to work shall not be denied or abridged on account of membership or non -membership in any labor union or labor organization " It is as- serted that this provision outlaws the closed-shop agreement and makes those who enter into one criminally liable, or , in case of corporations , subjects them to quo warranto proceedings So far as we know, however, it may not have that effect but do no more than give to an individual working man a cause of action in case the riehts granted him are denied or abridged . Or as in the case of contracts in restraint of trade at common law , it may make closed-shop agreements unlawful only in the sense that courts will not enforce them.