Consolidated Brick Co., Inc.

914 DECISIONS OF NATIONAL LABOR RELATIONS BOARD stone at the truckdriver is a threat of physical harm more certain to occur than an oral threat, and (c ) as an effective implied threat. No violation is found as to the incident set forth in 6(f) as the General Counsel's witness is not credited , as set forth above. As the picket-line conduct took place under the direction of Martinez and Lebron (the latter working with and under the direct control of the former ) and in certain instances was specifically urged by Martinez , I find that the General Counsel has established by a preponderance of the evidence that both Martinez and Lebron, individually, restrained and coerced employees of Levitt, and of others, in the exercise of their rights guaranteed under Section 7 of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondents set forth in section III, above , occurring in connection with the operations of the Companies involved herein , and their sup- pliers, have a close, intimate, and substantial relation to trade, traffic, and com- merce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce . (See United Wholesale and Warehouse Employees, Local 261 , Retail, Wholesale and Department Store Union, AFL-CIO (Perfection Mattress & Spring Company ), 125 NLRB 520, Conclusions of Law.) V. THE REMEDY Having found that the Respondents have engaged in unfair labor practices, I shall recommend that the Board order them to cease and desist therefrom and to take certain affirmative action designed to effectuate the policies of the Act. Upon the basis of the above findings of fact and upon the entire record in the case, ,l make the following: CONCLUSIONS OF LAW 1. The Companies involved herein are engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. International Carpenters and District Council are labor organizations within the meaning of Section 2(5) of the Act. 3. Respondents Martinez and Lebron are agents of the respondent labor organizations. 4. The activities of the Respondents, as set forth above, have been found to constitute unfair labor practices in violation of Section 8(b) (4) (A) and 8 (b) (1) (A) of the Act. [Recommendations omitted from publication.] Consolidated Brick Company, Inc. and United Electrical, Radio and Machine Workers of America (UE), Petitioner . Case No. 3-RC-2203. May 26, 1960 DECISION AND ORDER Upon a petition duly filed under Section 9(c) of the National Labor Relations Act, a hearing was held before Thomas H. Ramsey, hearing officer. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed.' 'The International Union of Electrical , Radio and Machine Workers, AFL-CIO, and Its Local 310, herein called the Intervenor , offered to prove that a contract between the Employer and the Intervenor was intended and interpreted by the contracting parties as being an agreement for a term of 2 years The hearing officer rejected the offer of proof. For the reasons stated in paragraph numbered 3, antra, the hearing officer's ruling is affirmed. 127 NLRB No. 114. CONSOLIDATED BRICK COMPANY, INC. 915 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 em- ployees 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 assert that their existing agree- ment is a bar to the petition, which seeks an election in a unit com- posed of production and maintenance employees at the Employer's Horseheads, New York, plant. The Petitioner contends that the contract is not a bar, urging that: (a) It is an agreement of indefinite duration; (b) it contains an invalid union-security clause; and (c) the contracting local is now defunct. On April 1, 1957, the Employer and the Intervenor executed an agreement whose duration clause reads as follows : This agreement shall remain in full- force and effect for a period of two (2) years from this date to and including March 31, 1959. If at least sixty (60) days prior to the expiration date of this agreement neither party requests termination of this agreement, said agreement shall continue to remain in full force and effect from year to year thereafter. However, if either party wishes to modify this agreement in any way they may so notify the other party at least sixty (60) days prior to the termination date and a conference of the parties must then be held within ten (10) days following receipt of such request which must be sent to the other party by registered mail-return receipt requested. In accordance with the above-quoted provision, timely notice to modify was given, followed by negotiations and the execution of a new agreement dated March 31, 1959. This is the agreement which is urged as a bar herein. It reads in pertinent part as follows : Agreement made this 31st day of March 1959, between Consoli- dated Brick Company, Inc., with offices at Horseheads, N.Y., and International Union of Electrical Radio & Machine Workers, Local 310, witnesses : The above parties agree to all the terms of the agreement of Consolidated Brick; Company, Inc., dated April 1, 1957, with the following agreed changes : [Emphasis supplied.] The 1959 agreement recited change in certain wage and other mon- etary benefits mentioned below, including new wage rates to become 916 DECISIONS OF NATIONAL LABOR RELATIONS BOARD effective on April 1 and October 1, 1959, and April 1, 1960. The document, however, did not include a specific duration clause or termination date. . In support of its position, the Petitioner asserts that the failure of the Employer and the Intervenor to provide expressly for a duration clause or a termination date within the body of the 1959 contract converts it into a contract of indefinite duration under the Board's decision in the Pacific Coast case.2 On the other hand, the Intervenor argues that the contracting parties, by their action of incorporating by reference the 1957 contract, actually read into the 1959 agreement the duration clause of the 1957 contract. It further argues, in this connection, that the parties merely committed an oversight when they adopted the 1957 agreement and failed to delete, or note the resultant change in, the March 31, 1959, terminal date of the initial 2-year term. The Intervenor, in the alternative, also contends that in the event the Board rejects its foregoing argument the 1959 contract at the least should be interpreted as being ambiguous and that the ambiguity should be resolved by resort to extrinsic evidence.3 We find merit in the primary contention of the Intervenor. Careful study of both the 1957 contract and the 1959 incorporating instrument leaves inescapable the conclusion that the parties, by their adoption of the prior contract, incorporated within their new agreement the duration clause, and consequently, the 2-year term set forth within the earlier agreement. This is demonstrated by the fact that the adopting memorandum of agreement provides for three wage increases to be given on (a) April 1, 1959, the effective date of the 1959 agreement; (b) October 1, 1959, 6 months thereafter; and (c) on April 1, 1960, the first anniversary date of the earlier contract. Thus, when both instruments are read and interpreted together, as indeed they must be, it is clear that the parties contemplated a new term of 2 years. Their failure to delete the March 31, 1959, termination date set forth in the 1957 contract, in our opinion, was an inadvertence which did not serve to convert the new agreement into one of indefinite duration, as urged by the Petitioner. We shall now consider the Petitioner's contention that the 1959 contract is removed as a bar because of an invalid union-security clause, as well as the defunctness of the contracting local. The union- security clause in the 1959 agreement reads as follows : 3In Pacific Coast Association of Pulp and Paper Manufacturers, 121 NLRB 990, the Board, at p 993, held that contracts having no fixed duration shall not constitute a bar for any period. 3 This alternative contention is lacking in merit. The Board follows the policy that a contract to constitute a bar must be sufficient on its face without resort to parol evidence Benjamin Franklin Paint and Varnish Company, a Division of United Wallpaper, Inc, 124 NLRB 54 See Appalachian Shale Products Co, 121 NLRB 1160 CONSOLIDATED BRICK COMPANY, INC. 917 Union Shop All employees Thirty (30) days after the signing of this agree- ment, shall as a condition of employment, become and remain members of the Union. All new Employees, upon completion of their probationary period thirty (30) days, shall become and remain members of the Union. It is apparent that the clause quoted above does not exceed the per- missive limits of union security set forth in Section 8(a) (3) of the Act, as amended. We therefore find no merit in this contention. Finally, as to defunctness, the record shows that a field representa- tive of the Intervenor, who was signatory to the March 31, 1959, agreement, has served as agent for, and serviced, the local. From that date until the hearing date the local has held meetings and has been assisted in the processing of grievances by the field representa- tive. Although 40 of approximately 43 employees within the contract unit signed forms during August 1959, purporting to repudiate the Intervenor as their bargaining agent, the Employer has refused to honor such forms and has continued to remit to the financial secretary of Local 310 all checked-off dues. Subsequently, 15 employees signed a petition purporting to redesignate Local 310 as their bargaining representative. On these facts we find that the contracting local is not defunct and reject this contention of the Petitioner.' In these circumstances we find it unnecessary to determine whether the inter- vening International is a separate party signatory to the existing agreement. As we have found that the parties have executed a contract valid for bar purposes for a term of 2 years, expiring on March 31, 1961, we shall dismiss the instant petition, which was filed almost 5 months after the effective date of the agreement. [The Board dismissed the petition.] MEMBERS RODGERS and JENKINS, dissenting : We would find that there exists no contract which bars an election. The Employer and the Intervenor had a contract, dated April 1, 1957, which read in part : This agreement shall remain in full force and effect for a period of two (2) years from this date to and including March 31, 1959. If at least sixty (60) days prior to the expiration date of this agreement neither party reglests termination of this agreement, said agreement shall continue to remain in full force and effect from year to year thereafter . . . . 4 See Hershey Chocolate Corporation, 121 NLRB 901, 911. `918 DECISIONS OF NATIONAL LABOR RELATIONS BOARD That contract having expired, the parties executed a new contract on .March 31, 1959, which, so far as pertinent, merely stated : The . . . parties agree to all the terms of the agreement .. . dated April 1, 1957, with the following agreed changes : It is undisputed that the latter agreement contained neither a dura- tion clause nor a termination date. Nevertheless our colleagues are holding the contract to be a bar. This, we 'submit, is patent error. In our opinion, our colleagues are overlooking the distinction be- tween the rights of parties to a contract as between themselves and the utilization of a contract as a bar. Our disagreement in the instant case with the majority does not stem from a difference of opinion with respect to the validity of the contract insofar as it relates to any contractual rights that each party may have as against the other but rather from the fact that we have here, in our opinion, a contract which under the contract bar rules cannot serve as a bar. The Board, not too long ago, clarified the contract bar rules. Part of this clarification was in the very area that is involved in this case, and deals with con- tracts that do not, on their face, and without resort to extrinsic evidence, contain a duration period. In Pacific Coast Association of Pulp and Paper Manufacturers, 121 NLRB,990, the Board, in reevaluating its contract-bar policies, specif- ically adverted to the situation involving a contract without a dura- tion period or a termination date. The Board stated : With respect to contracts of indefinite duration, such as contracts which lack termination or duration provisions, and contracts terminable at will, we have reversed previous contract-bar policy. We believe that our contract-bar policy should rest on the funda- mental premise that the postponement of employees' opportunity to select representatives can be justified only if the statutory objective of encouraging and protecting industrial stability is effectuated thereby. That objective is served where the contract- ing parties have entered into mutual and binding commitments thereby reasonably insuring that for the duration of the agree- ment neither party will disrupt the bargaining relationship by unilaterally attempting to force changes in the conditions of em- ployment on the other. But to grant the protection of our contract-bar policy to parties which have not so committed them- selves-either party being free at all times to dissolve the contract and exert economic pressure upon the other in support of bar- gaining demands-would be tq abridge the statutory right of employees to select representatives without concomitant statutory justification. Thus, even if the duration clause of the 1957 contract is deemed to be incorporated into the 1959 agreement, as the majority holds, the GENERAL ELECTRIC CO., PINELLAS PENINSULA PLANT 919 1959 contract cannot be sufficient for bar purposes because of a patent ambiguity concerning its duration. The literal effect of such an ap- proach is to incorporate a terminal date, March 31, 1959, which is a date preceding the date on which the petition was filed-August 27, 1959. To say, moreover, that the incorporation definitely results in a new 2-year term is to fly in the face of other possible constructions : that the parties concluded an agreement for at least a year; that the parties concluded an agreement for the term of 1 year with annual automatic renewal; or that the parties concluded an agreement of indefinite duration. In short, our colleagues' decision here is labored and unrealistic; it is also inconsistent with controlling Board precedent. Accordingly, we would entertain the petition and direct an election herein. General Electric Company, Pinellas Peninsula Plant and Inter- national Brotherhood of Electrical Workers, AFL-CIO, Peti- tioner. Case No. 12-RC-736. May 26, 1960 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 Richard H. Frahm, hearing officer. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed. Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its powers in connection with this case to a three- member panel [Chairman Leedom and Members Bean and Jenkins]. 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 1 involved claim to represent certain employees of the Employer. 3. A 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. 4. The parties agree to the establishment of a production and maintenance unit and to the inclusion in such unit of plant clerical employees. However, the Petitioner and Employer would exclude, while the Intervenor would include, technical employees. Further, while the parties have stipulated, and the record indicates, that 1 International Union of Electrical , Radio and Machine Workers, AFL-CIO, was per- mitted to intervene on the basis of an adequate showing of interest. 127 NLRB No. 115.