Pine Transportation, Inc.

256 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Pine Transportation, Inc. and Truck Drivers and Helpers Local Union No. 728, affiliated with International Brotherhood of Teamsters, Chauf- feurs, Warehousemen and Helpers of America, Petitioner. Case 10-RC-8613 June 1, 1972 DECISION AND DIRECTION OF ELECTION Upon a petition duly filed under Section 9(c) of the National Labor Relations Act, as amended, a hearing was held before Hearing Officer Charles T. Corn of the National Labor Relations Board.' Thereafter, the Employer, the Petitioner, and the Intervenor filed briefs.2 The Hearing Officer's rulings made at the hearing are free -from prejudicial error and are hereby affirmed. Upon the entire record in this proceeding, the Board finds: 1. The Employer is engaged in commerce within the meaning of the Act and it will effectuate the purposes of the Act to assert jurisdiction herein. 2. The parties stipulated, and we find, that the Petitioner and the Intervenor are labor organizations within the meaning of the Act. Each claims to represent certain employees of the Employer. 3. A question affecting commerce exists concern- ing the representation of employees of the Employer, within the meaning of Sections 9(c)(1) and 2(6) and (7) of the Act. This petition was filed during the term of a 3-year contract dated January 5, 1970, between the Employ- er and the Intervenor. The contract provides, inter alia, that employees in or promoted to positions outside the bargaining unit described in the contract, who are entitled to seniority, shall retain and continue to accumulate seniority provided they retain membership in the Intervenor. The contract also contains the following "Invalidation Clause": If any of the terms and conditions of this agreement are in violation of any City, State, or Federal Law or Court Decision or Decree, then to the extent of the violation, that portion of this agreement shall be null and void and subject to renegotiation. If any portion of this agreement is declared illegal, the remaining provisions of the agreement shall not in any way be affected. The Intervenor contends that this contract is a bar 1 The Regional Director dismissed the petition administratively. Upon Petitioner's appeal, the Board, by the Ruling on Administrative appeal dated July 30, 1971, reinstated the petition and directed that a hearing be held 2 Brotherhood of Railway, Airline & Steamship Clerks, Freight Han- dlers, Express and Station Employees, AFL-CIO, was allowed to intervene to the election sought in this proceeding. At the hearing, it offered to prove that the provision with regard to seniority was treated by the parties to the contract as being covered by the "Invalidation Clause" and had not been enforced. This offer was properly rejected in light of the Board's established policy of deciding the validity of a contract for contract-bar purposes on the basis of the face of the contract. A contract not facially invalid serves as a bar unless there has been a finding of unlawfulness in an unfair labor practice proceeding.3 On its face, the provision conditioning retention and accumulation of seniority upon union member- ship is clearly unlawful under United Steelworkers of America, and its Local 1070, AFL-CIO (Columbia Steel & Shafting Company), 171 NLRB 945. In that case the contract provided that persons who were promoted to positions outside the bargaining unit, but who later transferred back into the bargaining unit, would be credited with seniority for the period of time they were outside the unit if, during such period, they paid to the union the equivalent of union dues. The Board found this provision to be unlawful, noting that: "It has been held . . . [that] agreements or actions conditioning relative seniority standing upoih^length of union membership or the payment of union dues violate Section 8(a)(3)."4 Manifestly, the contract before us in this case also goes beyond the limited form of union security permitted by Section 8(a)(3), unless its effectiveness was clearly deferred by the "Invalidation Clause."5 We are unable to find that on its face this clause clearly defers the effectiveness of the provision we have found to be unlawful. The "Invalidation Clause" is a separate provision of the contract and refers to all of the substantive terms of the contract in general, not to any specific provisions therein. By its terms, the clause does not withhold putting any of the provisions of the contract into effect pending a determination of their legality. On the contrary, it appears to contemplate the applicability of any and all of the provisions until declared illegal.6 Indeed, its nonspecific nature means that if it were construed otherwise, none of the provisions of the contract would be effective until declared legal. Such a clause does not, on its face, obviate the unlawfulness of the seniority provision. Under Paragon Products, supra, this contract, because it goes beyond the limited form of union on the basis of a contract interest. 3 Paragon Products Corporation, 134 NLRB 662, 666-667 4 171 NLRB at 946. S Paragon Products, supra 6 See Hickey Cab Company, 88 NLRB 327, 329, Wyckoff Steel Company, 86 NLRB 1318 197 NLRB No. 43 PINE TRANSPORTATION, INC. 257 security permitted by Section 8(a)(3), is not a bar to an election in this proceeding.? The following employees constitute a unit appro- priate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act:8 All employees at the Employer's premises at 1025 Jefferson Street, Atlanta, Georgia; excluding office clerical employees, guards and supervisors as defined in the Act.9 [Direction of Election 10 omitted from publication.] MEMBERS FANNING AND JENKINS, dissenting: We continue to adhere to the views expressed in our dissenting opinion in United Steelworkers of America and its Local 1070, AFL-CIO (Columbia Steel & Shafting Company), 171 NLRB 945, 948. See also Member Fanning's dissent in Kaiser Steel, 125 NLRB 1039, 1045. We perceive no meaningful basis in all the circumstances of this case for distinguishing the seniority clause before us in this case from the clause we believed lawful in United Steelworkers, and, therefore, we would find the seniority clause herein to be lawful for the reasons stated in our dissenting opinion in that case. I Because of oui disposition of this issue we need not consider the effect of the Georgia "right-to-work" law upon certain provisions of this contract B The representation petition was amended at the hearing to conform to the bargaining unit described in the existing contract, but adding timekeepers and excluding office clericals The Petitioner and Employer agreed upon this as the proper unit and the Intervenor took no position As it appears to be Petitioner's intention to represent all employees not specifically excluded , as such a unit would be presumptively appropriate, and as no party has objected to such a unit , we shall describe it instead in these terms The office clerical employees are properly excluded despite the prior bargaining history Charles Bruning Company, Inc, 126 NLRB 140, 142 9 The parties appear to have agreed to include watchmen in the unit The record is insufficient to establish whether or not such watchmen are guards and therefore mandatorily excluded under Section 9 (b)(3) of the Act If they are guards, they must be excluded is In order to assure that all eligible voters may have the opportunity to be informed of the issues in the exercise of their statutory right to vote, all parties to the election should have access to a list of voters and their addresses which may be used to communicate with them Excelsior Underwear Inc, 156 NLRB 1236, N LR B v Wyman-Gordon Co, 394 U S 759 Accordingly, it is hereby directed that an election eligibility list, containing the names and addresses of all the eligible voters, must be filed by the Employer with the Regional Director for Region 10 within 7 days of the date of this Decision and Direction of Election The Regional Director shall make the list available to all parties to the election No extension of time to file this list shall be granted by the Regional Director except in extraordinary circumstances Failure to comply with this requirement shall be grounds for setting aside the election whenever proper objec tions are filed