Aluminum Co. of America

National Labor Relations Board - Board Decisions

Apr 4, 1951

93 N.L.R.B. 1190 (N.L.R.B. 1951)

1190 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
- Order
IT IS HEREBY ORDERED that the petition in Case No. 13-RC-1583
herein be, and it hereby is, dismissed.
[Text of Direction of Election omitted' from publication in this
volume.]
ALUMINUM COMPANY OF AMERICA and UNITED STEELWORKERS OF
AMERICA, C. I. 0., PETITIONER. Case No. 13-RC-1683. April 4, 1951
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 Irving M. Friedman,,
hearing officer. The hearing officer's rulings made at the hearing are,
free from prejudicial error and are hereby affirmed
Pursuant to Section 3 (b) of the Act, the Board has delegated its
powers in connection with this case to a three-member panel [Chair-
man Herzog and Members Reynolds and Murdock].
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. The question concerning representation:
The Aluminum Workers Union Local 23120, AFL, herein called the
Intervenor, have for a number of years been the contractual repre-
sentatives for a unit of production and maintenance employees at
the Employer's Lafayette, Indiana, plant, the only plant herein in-
volved. On April 9, 1947, the Employer and the Intervenor executed
a 2-year contract containing a maintenance-of-membership provision.2
On June 25, 1948, the parties executed a supplemental agreement
extending the contract to April 9, 1950, which provided as follows :
Under the extension of the Union agreement, the company
agrees that Article II will continue in force after April 9, 1949,
upon the Union's fulfilling any then existing legal requirements
i The Intervenor moved to dismiss the petition on the ground that the Petitioner made
no formal demand for recognition before filing its petition . The motion is hereby denied.
Advance Pattern Company, 80 NLRB 29.
2 Article II-Maintenance of Membership :
All employees who, fifteen days after the date of the signing of this Agreement,
are members of the Union in good standing in accordance with its constitution and
by-laws, and all employees who become members after that date shall, as a condition
of employment , maintain their membership in the Union in good standing for the
duration of this Agreement.
93 NLRB No. 206.
ALUMINUM COMPANY OF AMERICA 1191
which must be met in order to make it effective, subject to the
rights of individual employees to withdraw from the Union
within a period of fifteen days following April 9, 1949.,
On December 13, 1949, the Employer and the Intervenor executed
another supplemental agreement providing that the term of the 1947
contract be further extended to November 30, 1951.
The Petitioner filed a petition on July 3, 1950, seeking an election
among the employees of the Employer's Lafayette, Indiana, plant.
The petition was dismissed by the Regional Director, and on appeal,
the Board 3 sustained the Regional Director's ruling on the ground
that the 1947 contract, as extended, constituted a bar. This was be-
cause the provision in the supplementary agreement of June 25, 1948,
with respect to maintenance of membership, clearly deferred its appli-
cation until such time as it might lawfully become effective. On
September 14, 1950, the Petitioner filed a second petition for an elec-
tion in the same unit, and on September 29, the Regional Director
again dismissed the petition. His action was sustained by the Board'
on November 9, on the ground that the contract constituted a bar and
for the additional reason that the Petitioner had failed to make a
valid showing of interest. On October 11, 1950, a union-authorization
election was held and on October 19, 1950, the Intervenor was certified
by the Board as authorized to make or enforce certain types of union-
security provisions.' On November 15, 1950, the Petitioner filed its
third, the instant petition, for an election in the same unit.
The Intervenor and the Company contend that although the election
of October 11 authorized the parties to make an agreement on union
security, no affirmative steps were taken either to do so or to enforce
any kind of union security in the plant, and that therefore the union-
security provisions in the 1947 contract are of no force or effect and
the contract is a bar. The Petitioner urges that the union-security
provision in the 1947 agreement, which had been deferred by the 1948
supplemental agreement, became effective as a result of the union-au-
thorization certification issued on October 19, and that as this clause
is illegal, it removes the existing contract as a bar to this petition for
an election.
We find merit in the Petitioner's position. The Board held in the
prior decisions recited above, that the saving clause in the 1948 supple-
ment effectively deferred the operation of the illegal union-security
provision of the 1947 agreement.6 This saving clause specifically pro-
Case No 13-RC-1390. Order of August 15, 1950.
Case No. 13-RC-1553.
Case No 13-UA-3227
e It is noted that on November 9, 1950, when the Board upheld the Regional Director's
dismissal of the Petitioner ' s second petition , the UA election had been held However,
as that petition was filed prior to the UA election, the question as to whether that election
put into operation the illegal union-security provision was not in issue and the board
therefore had no occasion to pass upon the question at that time
1192 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
vides that the union-security provision shall continue in force after
April 9, 1949 "upon the Union's fulfilling any then existing legal re-
quirements which must be met in order to make it effective." We be-
lieve that this clause, reasonably interpreted, can only mean that the
legal requirements which the Intervenor was expected to meet were
those attendant upon a Board certification authorizing a union-security
agreement. However, since the filing of the second petition, a union-
authorization election has been held and the Intervenor has been au-
thorized to enter into a union-security agreement. We conclude, there-
fore, that the union-security provision, the operation of which had
previously been deferred pending the authorization of the Intervenor
to enter into a union-security agreement, became automatically effec-
tive after the Board's certification of the Intervenor on October 19,
1950, in the UA election. Since this provision requires as a condition of
employment, maintenance of membership in the Uiiion 15 days after
the effective date of the provision rather than "on or after the thirtieth
day following the beginning of such employment or the effective date of
such agreement, whichever is the later . . . it appears that the pro-
vision exceeds the limited form of union security permitted by Section
8 (a) (3) of the Act.7 Accordingly, we find that the 1947 agreement
as extended.was ineffectual as a bar by reason of its inclusion of a type
of union security not authorized by the Act.
We find no merit in the Intervenor's contention that because no af-
firmative steps were taken to put the illegal clause into operation, that
the clause was therefore of no force or effect. The Board has held that
the mere presence of an illegal union-security provision acts as a re-
straint upon those desiring to refrain from union activities," unless
such provision has been effectively deferred.9 Nor do we find merit in
the Intervenor's motion to dismiss the petition on the ground that the
Board's prior decisions upholding the Regional Director's orders of
dismissal constitute res judicata. As stated above, in the prior Board
proceedings no issue was raised with respect to whether the election put
into effect the union-security provision involved herein. Accordingly,
we have no occasion to consider the extent to which the Board will ap-
ply the doctrine of res judicata upon the basis of its past decisions io
The motion is hereby denied.
We find that a question affecting commerce exists concerning the
representation of employees of the Employer within the meaning of
Section 9 (c) (1) and Section 2 (6) and (7) of the Act.
4. The appropriate unit :
i Worthington Pump and Machinery Corporation, 93 NLRB 527.
8 C. Hager & Sons Hinge Manufacturing Company, 80 NLRB 163.
8 Barium Steel and Forge, Inc., 88 NLRB 564.
10 Cf. Ahlberg Bearing Company, 56 NLRB 1794 ; Thalhimer Brothers, Incorporated,
93 NLRB 726.
GEO. KNIGHT & CO. 1193
In accordance with the agreement of the parties, we find that all
production and maintenance employees of the Employer's Lafayette,
Indiana, plant, excluding office aiid clerical employees, guards, and
all supervisors as defined in the Act, constitute a unit appropriate for
the purposes of collective bargaining within the meaning of Sec-
tion 9 (b) of the Act.
[Text of Direction of Election omitted from publication in this
volume.]
GEORGE R. KNIGHT, CHESTERTON S. KNIGHT, CARLTON E. KNIGHT, AND
F. STUART KNIGHT D/B/A GEO. KNIGHT & Co. and INTERNATIONAL
BROTHERHOOD OF FIREMEN AND OILERS POWERHOUSE EMPLOYEES,
OPERATORS AND MAINTENANCE MEN, LOCAL 47, AFL, PETITIONER.
Case No. 1-RC-2053. April 4, 1951
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 S. Fuchs, hear-
ing 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 Herzog and Members Reynolds and Murdock].
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 organization involved claims to represent certain em-
ployees 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 Petitioner seeks a unit composed of the six leadmen in the
die shop of the Employer's plant at Brockton, Massachusetts. In the
alternative the Petitioner has indicated its willingness to include these
employees with other employees it currently represents in a produc-
tion and maintenance unit at the Employer's plant? The Employer
contends that the leadmen are supervisors within the meaning of the
Act, but agrees that, if they are not supervisors, they should be in-
' The Petitioner was certified as bargaining agent for the production and maintenance
unit in 1947 after an election held pursuant to a decision and direction of the Board.
74 NLRB 560. Since that time the Petitioner has not bargained for the leadmen, as
to whom no issue was raised and no reference made in the earlier decision.
93 NLRB No. 197.