Pilgrim Furniture Co., Inc.

910 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the intermittent nature of their working hours, we find that they are casual employees, and we shall therefore exclude them.' The parties agreed to the exclusion of one schoolboy who works 12 to 14 hours a week cleaning the restaurant. He shares in none of the employees' fringe benefits, and there is no evidence that he has any reasonable expectancy of permanent employment. Upon the en- tire record, we find that he is a temporary or casual employee, with interests different from those of the employees in the unit. Therefore, and in accord with the agreement of the parties, we shall exclude him.5 The Union would include the night watchman, while the Employer would exclude him as a guard. As the record shows that his duties include, among others, protection of the Employer's property from entry by unauthorized persons, we shall exclude him as a guard within the meaning of the Act.7 The Union would include three assistant managers, and the restau- rant manager, while the Employer would exclude them all as super- visors. The assistant mnaagers are in charge respectively of the basement, main floor, and stockroom. They and the restaurant man- ager have the authority to hire, discharge, and discipline employees. Accordingly, we find that they are supervisors within the meaning of the Act, and shall exclude them. Accordingly, we find that the following employees at the Employer's Montgomery, West Virginia, Store No. 42, constitute a unit appro- priate for the purposes of collective bargaining : All selling and nonselling employees, including regular part-time employees, the cashier, and office clerical employees, but excluding extra employees on call, casual employees, night watchmen, assistant managers, the restaurant manager, guards, professional employees, and supervisors as defined in the Act. [Text of Direction of Election omitted from publication.] 6 Central Mutual Telephone Company, Inc., 116 NLRB 1663, 1667. 6 Central Mutual Telephone Company, Inc., supra. 7 Dixie Wax Paper Company, 117 NLRB 548, 551; Laundry Owners Association of Greater Cincinnati, 123 NLRB 543, 546. Pilgrim Furniture Company, Inc. and United Furniture Workers of America AFL-CIO, Petitioner. Case No. 3-RC-2345 (for- merly 2-RC-10493). August 24, 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 Robert E. Harding, hearing officer. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed. 128 NLRB No. 92. PILGRIM FURNITURE COMPANY, INC. 911 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. The Petitioner seeks a unit of production and maintenance em- ployees at the Employer's furniture plant. These employees are currently covered by a contract between the Employer and the Inter- venor, entered into July 1959 and carrying an expiration date of May 1, 1961. The Employer and Intervenor contend that the petition, filed on February 5, 1960, is barred by the agreement. Clearly, if the con- tract is valid for contract-bar purposes, the petition was not timely filed and must be dismissed.' The Petitioner maintains, however, that article III of the contract is a "hot cargo" clause' proscribed by Section 8(e) of the Act, as amended, and that the Board, as a matter of policy, should not hold that a contract containing such a clause bars an election. The contract provides in article III: The company agrees that after notice by the union it will not purchase materials from any company where a bona fide labor dispute exists to which the Carpenters Union is a party. Section 8 (e) of the Act, insofar as pertinent here, declares: It shall be an unfair labor practice for any labor organization and any employer to enter into any contract or agreement .. . whereby such employer . . . agrees to cease or refrain from han- dling . . . the products of any other employer . . . and any con- tract or agreement entered into heretofore or hereafter containing such an agreement shall be to such extent unenforcible and void ... . Article III is, we find, clearly that type of agreement proscribed by Section 8 (e) for by its terms the Employer here agrees, under certain circumstances, not to handle the goods of another employer.4 We find merit in the Petitioner's contention that its petition is not barred by the contract, for were we to hold effective for contract-bar purposes agreements containing "hot cargo" clauses, we would thereby be giving force and effect to such clauses despite the express statutory language that they are unenforcible and void. Certainly, this Board "Carpenters Local Union 1545, AFL-CIO, affiliated with the Hudson Valley District Council of Carpenters, intervened on the basis of its contract with the Employer cover- ing employees in the requested unit. The Eastern Conference of Teamsters was granted leave to file, and did file, a brief as amicus curiae, in support of the contention of the Employer and Intervenor discussed below, that their contract is a bar to the petition. 2 Deluxe Metal Furniture Company, 121 NLRB 995, 999. 8 The term "hot cargo" clause is used throughout this decision as a convenient shorthand to describe that type of agreement proscribed by Section 8(e) of the Act. 4 It is not urged that article III is enforcible under the provisos to Section 8(e). 912 DECISIONS OF NATIONAL LABOR RELATIONS BOARD in its interpretation and administration of the Act has the respon- sibility to give expression and effect to a congressional policy so clearly stated. We are not persuaded that a different conclusion is required here because the parties executed article III before the enactment of Sec- tion 8(e) s We are not dealing here with a possible retroactive appli- cation of Section 8 (e) to the execution of the clause in question, but rather with the present effect to be given to that clause after it has been rendered unenforcible and void by the enactment of Section 8 (e). Equally without merit in our view is the argument that because Section 8(e) provides that a contract is unenforcible and void only to the extent that it contains a "hot cargo" clause, Nye should hold that the remaining provisions of the contract are sufficient to bar the peti- tion. Such an argument would be equally applicable where a contract fails to conform its union-security provisions to the limitations im- posed by the proviso of Section 8(a)(3), as the language of that proviso, like that of Section 8(e), does not seek to regulate or pro- scribe terms of a contract other than those with which it is im- mediately concerned. Nevertheless, since 1948 when the Board issued its decision in Hager Hinge 8 it has, with variations not material here, consistently held that a contract, valid except for its union-security provisions, is no bar; and, in the relatively recent Keystone case,' the Board expressly rejected the argument to the effect that invalid union-security clauses should not be considered in a representation proceeding as affecting the bar status of an otherwise valid contract. We can perceive no reason why a different rule should apply when a proscribed "hot cargo," rather than invalid union-security, clause is involved. Nor are we persuaded by the argument that the union-security analogy, which we have adverted to, and which the Petitioner con- tends should be controlling here, is wholly inapplicable to the situation before us. In support of this position, it is contended that invalid union-security clauses are held to destroy the effectiveness of a con- tract as a bar because they undermine employees' freedom of choice guaranteed in Section 7 of the Act and, in contrast, the clause at issue does not affect that freedom of choice. We agree that in the line of cases dealing with invalid union-security clauses 8 the Board is giving effect to the congressional policy relating to the protection of Section 7 rights. However, in the instant case, even assuming that Section 7 rights are not involved, we are, by holding the con- 5 Section 8(e) was added by the Labor-Management Reporting and Disclosure Act of 1959, enacted September 14, 1959, and became effective 60 days thereafter. 6 C Hager & Sons Hinge Manufacturing Company, 80 NLRB 163 7 Keystone Coat, Apron & Towel Supply Company, et al, 121 NLRB 880, 884-885. 8 See C Hager & Sons Hinge Manufacturing Company, supra, at 165; Keystone Coat, Apron & Towel Supply Company, at at., supra, at 884. PILGRIM FURNITURE COMPANY, INC. 913 tract no bar, thereby giving effect to other important congressional policy., Accordingly, we now hold that a contract containing a provision proscribed by Section 8(e) of the Act will not bar an election, unless such provision is enforcible under the proviso to that section. However, the Intervenor and Employer contend that such a holding should not be applied in this case because, under article XX 10 of their contract, article III was automatically "amended" to comply with the requirements of Section 8 (e). They thus assert that article III is of no force and effect by the very terms of their agreement and that, in consequence, the contract is a bar. The Board does not, however, recognize savings clauses such as article XX as curing for contract-bar purposes otherwise invalid union-security provisions," and we per- ceive no valid reason for not applying such a rule where "hot cargo" clauses are involved. In view of the foregoing, we find that the current contract between the Employer and the Intervenor is not a bar to the petition and that, in consequence, a question affecting commerce exists concerning the representation of certain employees of the Employer within the meaning of Section 9 (c) (1) and Section 2 (6) and (7) of the Act. 4. The following employees of the Employer constitute a unit ap- propriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act : all production and maintenance employees employed by Pilgrim Furniture Company, Inc., at its Kingston, New York, plant, excluding method engineers, time-study men, sales em- ployees, office clerical employees, guards, watchmen, and supervisors as defined in the Act.12 [Text of Direction of Election omitted from publication.] 'CHAIRMAN LEEDOM, dissenting : The contract here was executed at a time when the execution of a "hot cargo" agreement was not an unfair labor practice. Section 8 (e), added by the 1959 amendments, renders the "hot cargo" provisions of 9 Certainly the rights of the public, which were in part to be served by rendering "hot cargo" clauses ineffective , are as worthy of our consideration and protection as those Section 7 rights of employees . In fact, as the Supreme Court stated in N.L.R.B. v. Fant Milling Company, 360 U.S. 301, 307-308, "The Board was created not to adjudicate private controversies but to advance the public interest in eliminating obstructions to interstate commerce . . . . 11 Such language clearly appears to us inconsistent with the contention here under consideration that our contract-bar policy should protect employee rights but should not give expression to other congressional policy directly serving the public interest. 10 Article XX, section 1, provides : In event any Federal or State law or regulation or final decision of any Court or Board of competent jurisdiction, directly or indirectly, affects any one or more prac- tices thereunder, the provision ( s) or practice ( s) so affected shall be amended to comply with the requirements of such law, regulation or decision, and otherwise this Agreement shall continue in full force and effect. n See, for example, The Schnadig Corp., etc, 123 NLRB 1934. li The unit appears as stipulated by the parties. 914 DECISIONS OF NATIONAL LABOR RELATIONS BOARD this contract unenforcible and void. In these circumstances I perceive no valid public purpose to be served by holding the parties' inclusion of the "hot cargo" clause removes the contract as a bar. I would, therefore, find this contract, valid in all other respects , a bar to the Petitioner's untimely petition . The question whether a "hot cargo"' agreement executed after the effective date of the 1959 amendments should be a bar is not before me , and I express no opinion on that issue. MEMBER FANNING, dissenting : I cannot agree with my colleagues that the "hot cargo" clause of the contract in this proceeding or Section 8(e) of the Act renders the contract invalid as a bar. It has been the longstanding policy of the Board not to direct an election in the face of an existing contract covering the employees, involved except under certain circumstances . The purpose of the exceptions to the contract-bar rule is to balance two of the policies set forth in Section 1 of the Act-stability and the continuation of the collective-bargaining relationship on the one hand and, on the other, the right of employees to select, change, or to refrain from selecting a bargaining representative. Thus, the Board has made exceptions to the contract-bar concept when stability must be sub- ordinated to employee freedom. For example, in C. Hager, etc. Hinge Manufacturing Company, 80 NLRB 163, at 165 the Board in connec- tion with an unlawful union-security clause in a contract stated a valid reason for creating an exception to the contract-bar rule : The mere existence of such a provision acts as a restraint upon those desiring to refrain from union activities within the meaning of Section 7 of the Act, and is evidence that the Intervenor and the Employer are in accord in denying employment to those who refuse to join the Union within the required time. The contractual provision here involved does not restrain or coerce the employees of the Employer in their selecting or refraining from selecting a bargaining representative ; it does not touch upon the representation question at all. There is, therefore, no conflict between the policies of stability and freedom of selection which would justify setting aside the contract and the contract-bar rule. The majority here is diverting the basic philosophy of the contract- bar concept to a purpose other than that for which it was designed. The majority is abrogating a contract freely arrived at under the orderly and peaceful procedures of collective bargaining in order to remedy an unfair labor practice committed under Section 8 (e). This is outside the purview of a representation proceeding . Congress has provided a remedy under the unfair labor practice provisions of the Act, and the Board has repeatedly stated that it will not permit the litigation of an unfair labor practice in a representation proceeding. PILGRIM FURNITURE COMPANY, INC. 915 The majority, moreover, in its "remedy" goes beyond the policy of Congress under Section 8(e) which it claims to be enforcing. The majority by refusing to find the contract a bar in this case is abro- gating the contract in its entirety. Congress, however, in Section 8(e) provided that as to a "hot cargo" clause "any contract or agree- ment entered into heretofore or hereafter containing such an agree- ment shall be to such extent unenforcible and void." [Emphasis sup- plied.] It did not provide that the whole contract was to be a nullity, as the majority in effect is holding in this case. The Supreme Court of the United States in a different , but not unrelated, context (it was dealing with the Board's interpretation of the effect of an unlawful union-security clause upon the application of other provisions of a contract ) expressed its disapproval of the type of administrative legislation indulged in by the majority here as follows : The total obliteration of this contract is not in obedience to. any command of the statute. It is contrary to common-law contract doctrine. It rests upon no decision of this or any other controlling judicial authority. We see no sound public policy served by it. [N.L.R.B. v. Rockaway News Supply Company, Inc., 345 U.S. 71, at 79] This reasoning applies with equal relevancy and force to the present case. There is a further reason for my disagreement with the result reached by my colleagues. It is axiomatic that administrative rules of decision, such as the contract-bar rules, should have a uniformity of application and a simplicity of design if the policies of the Act are to be served effectively. The majority decision hardly serves these ends. For, if the Employer in this case was engaged in the construc- tion industry and the "hot cargo" clause in its labor agreement related to "contracting or subcontracting of work to be done at the site of the construction, alteration, painting or repair of a building, structure, or other work," the clause would be valid and, perforce, the agreement would bar an election. Similarly, if the Employer was engaged in the apparel and clothing industry, a "hot cargo" clause relating to a jobber, manufacturer, contractor, or, subcontractor working on the goods or premises of the Employer would not only be valid and consti- tute a bar, but in fact would be legally enforcible. Not only does the majority decision operate to create different rules for different em- ployers, but it invites protracted litigation on such issues as whether the provision is a "hot cargo" clause, whether the employer is in the construction or apparel and clothing industry , and a myriad of others posed by the very language of Section 8 (e). In my opinion, the uni- formity and simplicity so necessary in this field has been sacrificed. Accordingly, I would find the contract to be a bar and dismiss this petition.