Hoechst Chemical Corp.

108 DECISIONS OF NATIONAL LABOR RELATIONS BOARL The Petitioner here seeks a miscellaneous group of employees, lack- ing in internal homogeneity or cohesiveness. Their only claim to sepa- rate identity is that they comprise all the unrepresented employees of the Employers involved in the instant proceeding. However, as to other employees of the Employers, there is a well-established multi- employer bargaining history. The units of employees sought are co- extensive with the particular employer's operations but are not coex- tensive with the multiemployer unit. They are thus only a segment of the residual group. Accordingly, as the units sought do not con- stitute appropriate units, we shall dismiss the petitions herein.6 [The Board dismissed the petitions.] Gin a supplemental brief to the Board, the Petitioner seeks to distinguish Los Angeles Statler Hilton on the ground that in that case there was multiemployer bargaining as to a large majority of the employers' employees while here multiemployer bargaining has taken place only with respect to a minority of employees , and thus the units sought are "principal" bargaining units and not, as in Los Angeles Statler Hilton, "residual" units. As the record here does not disclose the percentage of employees with respect to whom there had been multiemployer bargaining , or that the units sought are composed of a majority of the employees of each Employer , we do not pass on the validity of the alleged distinction. Hoechst Chemical Corporation and Bakery, Food, Dairy, Bev- erage and Miscellaneous Drivers, Advance Salesmen, Ware- housemen and Helpers Local Union No. 64, a/w International Brotherhood of Teamsters , Chauffeurs, Warehousemen and Helpers of America,. Petitioner. Case No. 1-RC-6229. April 14, 1961 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 Alvin M. Glazerman, 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 [Members Rodgers, Leedom, and Fanning]. Upon the entire record in this case, the Board finds : 1. The Employer is engaged in commerce within the meaning of the Act. 'The Intervenor, Textile Workers Union of America , AFL-CIO , was allowed to inter- vene on the basis of a contract interest. The Employer and the Intervenor moved that the petition be dismissed because it con- tained a false statement that there was no currently recognized bargaining agent, whereas the Intervenor was so recognized . The Petitioner maintained that the error was inadvertent, and that it took steps to make correction before the hearing We find that none of the parties was prejudiced by the error , and this joint motion to dismiss is therefore hereby denied. 131 NLRB No. 21. HOECHST CHEMICAL CORPORATION 109 2. The labor organizations involved claim to represent certain em- ployees of the Employer. 3. The question concerning representation : The Employer and the Intervenor, which have had contractual relations for a number of years, assert a contract bar. These parties had a 3-year contract due to expire on March 1, 1961. They began negotiations for a new contract in the middle of 1960, and reached an oral agreement on September 27, 1960. On October 7, 1960, the Pe- titioner, in a telephone conversation with the Employer, claimed to represent the Employer's employees. On October 11, 1960, the same day the petition was filed but before they were notified of its filing, the Employer and the.Intervenor executed a written contract, the one asserted herein to be a bar. This contract was made effective as of September 27, 1960, and indicates on its face that it was executed on that date, but both the contracting parties assert that it was in fact executed on October 11, and the Employer maintains, in its brief, that the parties to the contract intended it•to become effective "immediately upon its execution." The Petitioner contends that this contract cannot constitute a bar because it contains an unlawful union-security clause. The clause in question provides that : It shall be a condition of employment that all employees of the Employer covered by this, Agreement who are members of the Union in good standing on' the effective date of this Agreement shall remain members in.good standing and those who are not members on the effective date of this Agreement, shall, on the thirtieth (30th) day following the effective date of this Agree- ment become and remain members in good standing in the Union. It shall also be a condition of employment that all employees covered by this Agreement and hired on or after its effective date shall, on the thirtieth (30th) day following the beginning of such employment become and remain members in good standing in the Union. Though the clause is consistent, on its face, with the requirements established in the Keystone Coat case,2 it is apparent, from the con- tracting parties' admission as to the actual execution date of the con- tract, that it does not in fact grant old nonmember employees and employees hired between September 27 and October 11, 1960, the requisite 30-day grace period in which to decide whether to join the Intervenor. Under such circumstances, we find that the contract, though valid on its face, actually exceeds the permissive limits of the statute, and, therefore, cannot constitute a bar.' Accordingly, we 2 Keystone Coat, Apron & Towel Supply' Company, et al., 121 NLRB 880. 3In view of this finding, we deem it unnecessary to pass upon other grounds urged by the Petitioner for finding the contract not to be a bar. 110 DECISIONS OF NATIONAL LABOR RELATIONS BOARD find that a question affecting commerce exists concerning the repre- sentation of employees of the Employer within the meaning of Sec- tion 9(c) (1) and Section 2(6) and (7) of the Act. Contrary to the assertions of our dissenting colleague, we think we are not here contravening or relaxing the rule established in Key- stone Coat, which bars the use of extrinsic evidence for the purpose of determining the meaning and intent of a contractual union-security clause. One purpose of that rule, as stated in that case, was to pre- vent the undue prolongation of representation hearings which would result if third parties were permitted to adduce extrinsic evidence attacking provisions valid on their face, and the contracting parties to adduce extrinsic evidence supporting provisions invalid on their face. Here, however, it is the contracting parties themselves, and not some third party, who are in effect attacking their own contract; accord- ingly, this is a stiuation not encompassed within the intent of the rule. Indeed, as we see it, our dissenting colleague would be relaxing the Keystone rule by considering the provisions of the prior contract. 4. The parties stipulated, and we find, that the following employees of the Employer constitute a unit appropriate for the purpose of collective bargaining within the meaning of Section 9 (b) of the Act : All production and maintenance employees at the Employer's West Warwick, Rhode Island, plant, excluding office -clerical employees, laboratory personnel, guards, professional employees, executives, and all other supervisors as defined in the Act. [Text of Direction of Election omitted from publication.] MEMBER FANNING, dissenting : I would find the parties' current contract to be a bar . My colleagues find that it is not a bar , because, though the union-security clause is valid on its face, it did not in fact grant old nonmember employees and employees hired between September 27, and October 11, 1960, 30 days in which to decide whether to join the Intervenor. This con- clusion is reached only because my colleagues accept evidence that the contract, though by its terms executed on September 27, 1960, was actually executed on October 11, 1960. Though such evidence is ex- trinsic to the contract itself, and thus inadmissible under the Keystone rule against receipt of extrinsic evidence, for purposes of determin- ing the validity or invalidity of union-security clauses, I do not object to its receipt into evidence and its use for purposes of determining the date upon which the contract was actually executed. Indeed, I think this is a necessary procedure to eliminate any possible collusion on the part of contracting parties designed to forestall rival petitions by predating contracts. This is not the case here, however, for the parties executed their contract prior to receiving notice of the petition. INTERNATIONAL LADIES' GARMENT WORKERS' UNION ill I do object to the use of this extrinsic evidence for purposes of com- puting the 30-day grace period allowed to old nonmember employees as of the effective date or new employees hired between the effective date and actual execution date, without also affording the contract- ing parties an opportunity to show that the rights of employees were not infringed or interfered with by the difference in dates. If the rule against extrinsic evidence is to be relaxed, it should be relaxed for all parties. Here the new contract was executed during the exist- ing term of a 3-year contract, which also contained a valid union- security clause. Accordingly, whether or not the new contract was executed on September 27 or October 11, all nonmember employees on September 27, and new employees hired between that date and October 11 were in fact given at least 30 days in which to decide whether to join the union. This was a right given them under the initial 3-year agreement. This right was not taken away by the new 2-year agreement. Since the law requires no more, I would find the new contract to be a bar to an election at this time.4 4 The majority clearly errs in stating that "it is the contracting parties themselves, and not some third party, who are in effect attacking their own contract ." The contracting parties admit that their contract was executed on October 11, 1960 , rather than on the date shown on the face of the contract . This is not an attack on the contract , because, even using that date , the petition was untimely filed. As for this being a situation not encompassed within the intent of the Keystone rule, I refer my colleagues to the deci- sion in Benjamin Franklin Paint & Varnish Company, a Division of United Wallpaper, Inc., 124 NLRB 54, where the Board held it to be its policy that a "contract to consti- tute a bar must be sufficient on its face , without resort to parol evidence , such as would often be necessary to determine the actual execution date. As with union-security clauses, and in determining the adequacy of a contract , the Board will be governed by the con- tents of the contract on its face in determining whether the contract constitutes a bar to a representation proceeding." As Indicated I agree that evidence of the actual execu- tion date is admissible to preclude possible collusive predating of contracts , in order to bar petitions filed before the actual execution date. However, if the rule is to be relaxed for that purpose it should also be relaxed to permit a showing that the union -security clauses are not violative of the Act. International Ladies' Garment Workers' Union and Federation of Union Representatives, Petitioner . Case No. 2-RC-11158. April 14, 1961 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 A. Gene Niro, hearing officer. The hearing officer's rulings made at the hearing are free from prej- udicial error and are hereby affirmed. Upon the entire record, the Board finds : 1. The Employer is engaged in commerce within the meaning of the Act. 1 The American Federation of Labor and the Congress of Industrial Organizations, herein called the AFL-CIO, and Field Representatives Federation, AFL-CIO, DALU #3017, were permitted to file amious briefs, and such briefs were duly considered by the Board. 131 NLRB No. 25.