Freezmor Metal Products Co., Inc.

FREEZMOR METAL PRODUCTS CO., INC. 803 Freezmor Metal Products Co., Inc. and Local 485, International Union of Electrical, Radio and Machine Workers, AFL-CIO, Petitioner. Case No. 2-RC-9868. August 31, 1959 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 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 certain employees of the Employer. 3. The question concerning representation : The Intervenor, Local 422, International Production, Service and Sales Employees Union, asserts as a bar to this petition its contract with the Employer which was signed on July 29, 1958, and which will expire on July 6, 1960. The Petitioner contends that this contract cannot bar an election because it contains a union-security provision which has been given retroactive application. The Employer takes no position. Sometime prior to 1958, the Intervenor succeeded to a contract which a sister local had executed with the Employer. This contract expired on July 6, 1958. On July 29, 1958, the Employer and the Intervenor entered into a new agreement, here asserted as a bar, which contained a union-security clause. This contract also contained the following clauses : Article 25. This agreement shall be binding upon the parties hereto, their respective successors or assigns, and is retroactive to and effective July 7, 1958. Article 26. This agreement shall be in full force and effect from the date of execution to July 6, 1960. At the hearing, the Intervenor sought to establish that the retroactive feature of article 25 was intended solely to insure that the employees covered by the agreement would receive wage increases retroactive to July 7, 1958, the terminal date of its prior contract, and was not to apply to the union-security clause. Rather, the Intervenor asserted that the effective date of the union-security provision was governed by article 26. The hearing officer admitted evidence on this issue. In its Keystone decision,' the Board announced that "contracts con- taining ambiguous union-security provisions which may be interpreted 1 Keystone Coat, Apron & Towel Supply Company, 121 NLRB 880. 124 NLRB No. 101. 804 DECISIONS OF NATIONAL LABOR RELATIONS BOARD as either lawful or unlawful because the language employed is not clear" shall no longer be treated as bars to elections. In the instant case, the validity of the union-security clause is rendered ambiguous because of the language employed in the foregoing articles. Thus, on the one hand, if the provisions of the contract, including the union- security clause, are made retroactive to July 7, 1958, as seemingly con- templated by article 25, then the latter clause is tainted with illegality because it does not afford employees the statutory grace period in which to decide whether they wish to join the Intervenor? On the other hand, if the contractual provisions are deemed to take effect prospectively from July 29, 1958, as seemingly intended in article 26, then the union-security clause would be valid. In view of this ambi- guity, we find, in accordance with the rule in Keystone set forth above, that the contract cannot operate as a bar. The hearing officer admitted extrinsic evidence to resolve the am- biguity concerning the validity of the union-security provision. In the Keystone decision, the Board stated that "no extrinsic evidence will be admissible in a representation proceeding for the purpose of determining the validity of a union-security or checkoff clause in a contract for bar purposes." The reason for this rule is explicated at length in that decision. In sum, it is designed to eliminate protracted representation hearings on subjects which are properly encompassed by adversary unfair labor practice proceedings, and to inject sim- plicity in this area of contract-bar rules. While the Board in Keystone did not specifically address itself to the question of what disposition would be made of such extrinsic evidence if it had been erroneously admitted into the record of a representation proceeding, it seems mani- festly clear that the salutary purpose of this aspect of the Keystone decision would be thwarted if the Board were to consider such evi- dence once admitted. To hold otherwise would, in our opinion, invite practices which are not conducive to the orderly resolution of repre- sentation proceedings and would place a premium upon the successful introduction of evidence which does not properly belong in such pro- ceedings. Accordingly, we shall not consider the extrinsic evidence which was received in this case to resolve the ambiguity concerning the validity of the union-security clause involved, nor shall we con- sider such evidence in future proceedings of this kind. As we conclude that the Intervenor's contract is not a bar, we find that a question concerning representation exists within the meaning of Section 9(c) (1) and Section 2(6) and (7) of the Act and we shall direct an election herein. 4. The parties stipulated, and we agree, that the following em- ployees of the Employer constitute a unit appropriate for the purposes of collective bargaining within Section 9 (b) of the Act : 2 See General American Aerocoach , et al., 90 NLRB 239, 240. DUNES MOTEL 805 All production, maintenance, shipping, and receiving employees at the Employer's establishment in New York, New York, excluding office clerical employees, guards, and supervisors as defined in the Act. [Text of Direction of Election omitted from publication.] Dunes Enterprises, Inc., d/b/a Dunes Motel s and Hotel Em- ployees Union Local 255, AFL-CIO, Petitioner. Case No. 1?-RC-513. August 31, 1959 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 Herbert B. Mintz, hearing officer. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed.2 Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, the Board has delegated its powers in connection with this case to a three-member panel [Members Rodgers, Jenkins, and Fanning]. Upon the entire record in this case the Board finds : 1. The parties did not stipulate that the Employer's operations affect commerce within the meaning of the Act. The Employer is a Florida corporation which operates a resort motel in Miami Beach, Florida. Guests at the motel are provided with rooms for rent, dining and barroom facilities, and other customary hotel services. The Em- ployer's annual gross revenues exceed $500,000. Its expenditures for advertising in out-of-State newspapers amount to more than $10,000 a year. The Employer maintains a reservations office in New York City. The Employer participates in "package deals" with major airlines. The Employer purchases some goods directly from out-of- State sources, and it purchases from local sources, whiskey, valued in excess of $5,000, which is manufactured in States other than Florida. At certain times of the year over 50 percent of the Employer's guests come to the motel from outside Florida. It appears that less than 75 percent of its guests remain at . the motel for periods of a month or more. On the basis of the foregoing, we find that the Employer's motel operations affect commerce within the meaning of the Act, and that it will effectuate the policies of the Act to assert jurisdiction herein.' 1 The name of the Employer has been corrected to reflect the testimony at the hearing that Dunes Motel is a "trade name" used by Dunes Enterprises, Inc. ' The hearing officer rejected an offer of proof as hearsay. This matter is discussed infra, under paragraph 4. 8 Floridan Hotel of Tampa, Ina ., 124 NLRB 261; Member Jenkins concurring in part and dissenting in part and .Member Fanning concurring specially. 124 NLRB No. 100.