The Texas Co.

THE TEXAS COMPANY 169 terms of the agreements so reached have been put into effect by all the employers concerned, including the Employer.' The record does not establish that the Employer has withdrawn from membership in the Association. At most, it has indicated a de- sire to pursue an individual course of action with respect to bargaining for its lithographic production employees only. It has not indicated an intention to abandon joint bargaining through the Association for its typographical and letterpress employees. As the Employer has not unequivocally evinced an intent henceforth to pursue a course of individual action with regard to its labor relations, we believe that the bargaining history is controlling in determining the appropriate unit in this proceeding.' We shall, therefore, dismiss the petition, as the proposed unit is too limited in scope. [The Board dismissed the petition.] MEMBERS DODGERS and LEEDOM took no part in the consideration of the above Decision and Order. 4 Capital District Beer Distributors Association, et at., 109 NLRB 176; Fish Industry Committee, 98 NLRB 696. 5 Washington Hardware Company, 95 NLRB 1001 ; Atlas Storage Division, P & V Atlas Industrial Center, 100 NLRB 1443 ; Pioneer Incorporated, 90 NLRB 1848. The Texas Company, Port Arthur Works and Port Arthur Ter- minal and Albert O. Lawless, Jr., Individually and on Behalf of Others, Petitioner and Local Union No. 390, International Brotherhood of Electrical Workers, AFL. Case No. 39-RD-37. April 15, -1955 DECISION AND ORDER Upon a decertification petition duly filed under Section 9 (c) of the National Labor Relations Act, a hearing was held before Clifford H. Potter, hearing 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 Petitioner, an employee of the Employer, asserts that the Union is no longer the representative, as defined in Section 9 (a) of the Act, of the employees designated in the petition. The Union is a labor organization certified by the Board and cur- rently recognized by the Employer as the exclusive bargaining repre- sentative of the employees designated in the petition. 112 NLRB No. 33. 170 DECISIONS Or NATIONAL LABOR RELATIONS BOARD 3. No question affecting commerce exists concerning the representa- tion of employees within the meaning of Section 9 (c) (1) and Sec- tion 2 (6) and (7) of the Act. The Union contends that its current contract dated July 30, 1954, is a bar to the decertification proceeding herein. The Petitioner argues that the contract is not a bar because it was not approved by the mixed local of the Union. The Employer is neutral. Following the expiration of the 1951 contract on July 30, 1953, the Employer and the Union,' on or about July 8, 1954, agreed to the terms of a 1-year contract. On July 19, 1954, the Employer prepared and signed the contract in its final form and sent it to the Union for execution. On July 30, 1954, at a special union meeting of the local group of the Employer's employees,' the terms of the contract were approved. At this meeting, the business manager read article XV, section 5 of the Union's International constitution,' and indicated that the contract would have to be approved by the mixed local of the Union. Shortly thereafter, the Union's president and its business manager, who with the International president and representative exe- cuted the prior agreements, signed the contract. On August 4, 1954,, the Union notified the Employer that the contract had been signed locally and had been forwarded to the International officials for ap- proval. The contract, retroactive to July 30, 1954, was then put into• effect by the Employer. At the regular meeting of the mixed local on August 5, 1954, the contract was rejected and the Employer was so informed the following day. On or before August 13, 1954, the International representative and president signed the contract. The petition herein was filed on September 7,1954. Contrary to the Petitioner and in agreement with the Union, we find on the above facts that the current 1954 contract is a bar to the present proceeding. Although the mixed local approved agreements, we believe such approval was not a requirement to the valid execution of the contract, but appears to be merely a formality, not having any controlling significance. We note particularly that the contract had been signed and put into effect by the Employer, and that it was exe- cuted by the union officials who customarily signed agreements and who had at least the apparent authority to execute the contract in- volved herein.' Moreover, article XV, section 5 of the International's 'The Union was represented by a workingmen's committee, and by the Union's presi- dent, its business manager , and by its International representative ' The Union herein is a mixed or consolidated labor organization representing not only employees of the Employer but also employees of other employers 'Article XV, section 5, IBEW constitution provides' "when there is more than one branch of the electrical trade represented in a local union , then this shall be known as a mixed local union, and the members of each branch of the trade shall define their own scale of wages, hours and working conditions , and submit these to a meeting of the mixed local union for approval " 4 Lewittes and Sons, 96 NLRB 775, 777. THE TEXAS COMPANY 171 -constitution does not specifically require the contract to be approved by the Union. At most, the constitutional provision is ambiguous. The Board is of the opinion that the interpretation and application of this constitutional provision is an internal union matter and that it will not go behind the fully executed contract and inject itself into such internal operations of the Union in this situation. Under all circumstances, we find that the contract herein is a bar, and we shall therefore dismiss the petition. [The Board dismissed the petition.] MEMBER RODGERS, dissenting : I am unable to agree with the Board majority that the Union's con- tract is a bar to this proceeding. The contract in question is, in my opinion, a nullity for the reason that its execution by the Union's representatives was unauthorized and in contravention of the Union's constitution and the express wishes of its members. Article XV, section 5, of the Union's International constitution provides : "When there is more than one branch of the electrical trade represented in a local union, then this shall be known as a mixed local union, and the members of each branch of the trade shall define their own scale of wages, hours and working conditions, and submit these to a meeting of the mixed local union for approval." The Union's representatives admittedly did not have such approval when they executed the con- tract, but acted in defiance of the mixed local's prior rejection of the contract. In view of the above provision of the Union's constitution, I believe that approval by the mixed local was a condition precedent to the valid execution of the contract and not a mere formality as claimed by the majority. The provision, on its face, is clear and unequivocal, and does not reasonably admit of any other interpretation. To hold, as does the majority, that the provision does not specifically require the contract to be approved by the mixed local is to ignore the plain meaning of the words used. Even if the provision could be said to be ambiguous, resort to custom establishes that approval by the mixed local was required. The Union's business manager, in submitting the contract to the July 30 meeting of the local group of the Employer's employees for their approval, read article XV, section 5, of the consti- tution to the employees and then advised them that the contract would also have to be approved by the mixed local. The majority seeks to avoid the reality of the situation here by relying upon the apparent authority of the Union's representatives to execute the contract and by declining to interpret and apply the Union's constitution on the ground that to do so would be to inject the Board in the internal operations of the Union. If this proceeding in- volved no more than the rights of the Union and the Employer under 172 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the contract in question, I would be inclined to go along with the majority, but here, as in all cases involving contract bar, the Board must balance the right of employees to select a bargaining representa- tive against the desirability of maintaining stability in labor rela- tions. The petition for decertification in this case is supported by the great majority of the employees in the unit. The right of these employees to an election is, I believe, far too important and funda- mental to be denied on the mere basis of the apparent authority of the Union's representatives to sign the contract. Moreover, the Board cannot stop short of obtaining all the facts necessary to arrive at a fair decision in contract-bar cases on the ground that to do so would be to inject itself into the internal operations of a union, particularly where, as here, that would involve no more than the interpretation and application of the Union's constitution. There is, certainly, nothing so privileged or so confidential about a union's constitution that the Board ought not to interpret and apply it, where such action is necessary to promote and to protect the rights of employees under the Act. It is likewise true that a contract can scarcely be said to achieve such stability in labor relations that it should operate as a bar where, as here, the contract was executed by the Employer and the Union with knowledge that it had been disapproved by the members of the Union as was their right under the Union's constitution.' Accordingly, for the reasons stated above, I would find that the 1954 contract is not a bar. MEMBER LFEDOM took no part in the consideration of the above Decision and Order. 5 See my dissent in Midland Rubber Corporation, 108 NLRB 930. Owens-Illinois Glass Company, Petitioner and American Flint Glass Workers' Union of North America, and its Local 700, AFL and Glass Bottle Blowers' Association of the United States and Canada, AFL, and its Local 59.1 Case No. 8-RM-114. April 15,1955 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 Edward A. Grupp, hearing officer. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed. I The Unions are herein called Flints and GBBA, respectively 112 NLRB No. 15.