Gary Steel Supply Co.

470 DECISIONS OF NATIONAL LABOR PELATIONS BOARD Upon the basis of the above findings of fact and upon -the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. United Rubber, Cork, Linoleum, and Plastic Workers of America, AFL-CIO, is a labor organization within the meaning of Section 2 (5) of the Act. 2. The Company has not engaged in unfair labor practices within the meaning of Section 8 (a) (3) or (1) of the Act. RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law, and upon the entire record in the case, I recommend that the complaint be dismissed in its entirety. Gary Steel Supply Company and International Union of Elec- trical, Radio and Machine Workers, AFL-CIO, Petitioner. Case No. 13-RC-9191. September 10, 1963 DECISION AND ORDER Upon a petition duly filed under Section 9 (c) of the National Labor Relations Act, a hearing was held before Hearing Officer Hymen Bear. 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 employees 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 petition herein was filed on February 21, 1963. The Petitioner seeks to represent a unit of the Employer's employees located at its Blue Island, Illinois, plant, who are presently represented by the Intervenor? The Employer and the Intervenor assert their current written contract, dated August 5, 1962, is a bar to the petition. The Petitioner contends the contract is not a bar because, inter alia, it con- tains a retroactive union-security and an illegal checkoff clause' 1 Local 714, Machinery, Scrap Iron, Metal and Steel Chauffeurs , Warehousemen, Handlers, Helpers and Alloy Fabricators Unions, affiliated with the International Brotherhood of Teamsters , Chauffeurs, Warehousemen and Helpers of America was permitted to intervene at the hearing on the basis of Its current contract with the Employer. 2 The Employer's entire operations are located at its plant and offices in Blue Island, where it has had a bargaining history with the Intervenor covering Its Blue Island em- ployees. However, until about August 1961, the Employer also had operated a plant in Kensington , Illinois, and, prior to the closing of the Kensington plant, the Employer had had a long bargaining history with the Intervenor covering Its Kensington employees. 3 The Petitioner also contends that the Intervenor is, in effect , defunct, because it has not administered the terms of the contract, and, therefore, the contract cannot bar the petition. The record shows, however, that the Intervenor has elective officers and that it 144 NLRB No. 45. GARY STEEL SUPPLY COMPANY 471 The record shows that on July 9, 1962, the Employer and the Inter- venor entered negotiations for a new contract to succeed their then cur- rent contract expiring August 5,1962. On August 1, 1962, the parties reached agreement on the terms of a new 3-year contract. It appears that William Hogan, secretary-treasurer and business manager of the Intervenor, instructed his secretary to prepare a new contract from notes taken by him during the negotiation meetings. A written in- strument purporting to incorporate the terms agreed upon was pre- pared and signed by the parties on August 5, 1962. This agreement provided, inter alia, that all employees covered by the agreement who are not members of the Intervenor on the effective date "shall, on or after the thirtieth day following the effective date of this agreement, become and remain members" and that all new employees "hired on or after [the] effective date shall, on or after the thirtieth day following the beginning of such employment, become and remain members" of the Intervenor. The agreement also con- tained the following checkoff clause : (e) On the first pay day of every month, the Union dues and such initiation fees as are owed by each employee covered by this agreement shall be deducted from the pay of the employee by the Company, and -turned over to the Secretary-Treasurer of the Union not later than ten (10) days after such monthly deduction. The agreement made no provision for any change in the terms and conditions of employment during the first year of the term, but did provide for annual 5-cent per hour general wage increases effective August 19,1963, and August 19,1964. In late November or early December 1962, Irvin Ruder, Jr., vice president, treasurer, and general manager of the Employer, had occa- sion to look at the agreement for the purpose of checking certain wage rates. He thereupon discovered that the job classifications and wage rates contained in the agreement applied to the Employer's defunct Kensington plant and that the agreement had the August 19 anniversary date of the previous Kensington agreements, rather than the August 5 anniversary date of the Blue Island agreements. There- upon, Ruder telephoned Hogan and told him of his discovery. After ascertaining their mutual mistake, the parties sometime in December signed an agreement which conformed to the understanding previously reached and was made specifically applicable to the Blue Island plant. Though signed in December 1962, the agreement was dated August 5, 1962, and made effective for a period of 3 years from that date. It is clear that on August 5, 1962, the Employer and the Intervenor executed a valid union-security contract which, though mistakenly is in fact administering the contract. The Petitioner further contends the contract had not been reduced to writing before the filing of the petition. For the reasons hereinafter set forth, we find this contention is without merit. 472 DECISIONS OF NATIONAL LABOR RELATIONS BOARD made applicable to a nonexistent plant, was, nevertheless, intended to apply to the Employer's only plant at which the Intervenor then represented employees. In all respects it was a complete and valid written contract of a kind sufficient to meet the Board's contract-bar standards.4 The parties operated under this agreement and applied it to the Blue Island plant. The document drafted and signed in December 1962 constituted no more than a redraft intended to reform the written contract to the actual contractual intention of the parties. It neither changed the rights and obligations previously established by virtue of the August agreement nor extended the effective term of that agreement. For this reason we find that the contract which was arrived at, reduced to writing, and executed on August 5, 1962, constitutes, as reformed, a bar to the present petition.' We find no merit in the Petitioner's contention that the contract contains an illegal checkoff clause and may not therefore be con- sidered a bar. Specifically, the Petitioner claims that the checkoff clause is invalid because it fails expressly to provide for a checkoff of dues and initiation fees only upon the execution of individual au- thorizations not irrevocable for more than a year as required by Section 302 (c) (4) of the Act. In Keystone Coat, Apron f Towel Supply Company, et al.,6 the Board found "that failure of a checkoff provision on its face to con- form to Section 302 of the Act removes as a bar any contract contain- ing such a clause."' The reasons assigned for so finding were the same reasons that led the Board in that case to find a union-security clause illegal and not an effective bar to a representation proceeding where the union-security clause did not, on its face, reflect the precise lan- guage of the Act's Section 8 (a) (3) proviso. In the subsequent Paragon Products Corporation case,' however, the Board reconsidered the Keystone rule as it applied to union- security clauses, and for reasons there fully explicated, found that "[c] ontracts containing ambiguous though not clearly unlawful union- security provisions will bar representation proceedings in the absence of a determination of illegality as to the particular provision involved by this Board or a Federal court pursuant to an unfair labor practice proceeding." 9 We now believe that the policies of the Act can best be effectuated by establishing a comparable rule with respect to con- tracts containing checkoff provisions. We hold, therefore, that a contract will not be considered defective as a bar to a representation 6 See Laycob Hat Company, 107 NLRB 1009 5 Contrary to the Petitioner , we find accordingly that the reexecution of the August agreement did not deprive incumbent nonmembers and/or new employees of the statutory 30-day grace period . See Weyerhaeuser Company, 142 NLRB 702. 8121 NLRB 880. 7Id at 885-886. 8 134 NLRB 662. 0 Id. at 667. NACHMAN CORPORATION 473 proceeding simply because it contains a checkoff provision which fails to spell out the requirements of the proviso to Section 302(c) (4) of the Act, unless the checkoff provision is either unlawful on its face or has otherwise been determined to be illegal in an unfair labor prac- tice proceeding or in a proceeding initiated by the Attorney General.10 As the checkoff provision in the instant case is not defective in the re- spects stated, we hold that it does not render inoperative the contract as a bar.11 In view of our findings herein, we shall dismiss the petition herein." [The Board dismissed the petition.] MEMBER JENKINS took no part in the consideration of the above Decision and Order. 10 We reiterate our holding in Paragon that no testimony and no evidence will be ad- missible in a representation proceeding where the testimony or evidence is only relevant to the question of the practice under a contract urged as a bar to the proceeding. 11 To the extent that Keystone Coat, Apron & Towel Supply Company, et al., supra, is inconsistent herewith, it is hereby overruled. 13 Member Leedom agrees with his colleagues that under the rule of the Paragon case the checkoff clause in this contract does not remove the contract as a bar. Although Member Leedom dissented in the Paragon case, and in subsequent cases applying the Paragon rule, he now deems himself bound by the majority decision in Paragon, and accordingly concurs in the dismissal of this petition. Nachman Corporation and Domingo Perdomo and Joseph E. Richardson and Willie Mae Harrison and George D. Thomas and Marguerite Hawkins and Robert L. Scott and John Clark and Donald Milbourne and Helena Pagan and United Steel- workers of America, AFL-CIO. Cases Nos..-CA-°2720-1,4-CA- 2720-2, 4-CA-0720-3, 4-CA-2720-4, 4-CA-2720-5, 4-CA-2720-6, 4-CA-,0720-7, 4-CA-27920-8, 4-CA-92720-10, and 4-CA-2720-11. September 11, 1963 DECISION AND ORDER On March 26, 1963, Trial Examiner James V. Constantine issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Inter- mediate Report. Thereafter the General Counsel and the Respond- ent filed exceptions to the Intermediate Report and supporting briefs. 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 McCulloch and Members Leedom and Fanning]. 144 NLRB No. 55.