H. Muehlstein & Co., Inc.

National Labor Relations Board - Board Decisions

Mar 18, 1952

98 N.L.R.B. 723 (N.L.R.B. 1952)

H. MIJEHLSTEIN & COMPANY, INC. 723
H. MUEHLSTEIN & COMPANY, INC. and OIL WORKERS INTERNATIONAL
UNION, CIO, PETITIONER . Case No. 13-RC-2327. March 18,1952
Decision and Order
Upon a petition duly filed under Section 9 (c) of the National Labor
Relations Act, a hearing. was held before Joseph A. Butler, 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 Houston, Murdock, and Styles].
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 df 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 Employer and the Intervenors, Rubber and Plastic Workerg,
Local 82, and its parent, Distillery, Rectifying and Wine Workers
International Union of America, AFL, intervening separately,
entered into a 2-year collective bargaining agreement on December 7,
1950, covering the employees sought to be represented by the Peti-
tioner. This agreement provides for a union-security clause which
shall be effective ". . . as, if and when the National Labor Relations
Board shall issue its certificate authorizing the Union and the Com-
pany to negotiate the subject of Union shop." The Petitioner con-
tends that the contract is not a bar on the ground that the union-
security clause, which it alleges to be illegal, is now in effect because
the Board no longer issues certificates authorizing negotiation of a
union shop.' The Employer and the Intervenors oppose the conten-
tion, claiming that the union-security clause is not operative.
We have recently determined that a similar deferral clause effec-
tively suspends an alleged unlawful union-security provision?
Although the issue was not raised by the parties, that case was decided
after the deletion by Congress of the requirement for union-authoriza-
tion elections. The Board was cognizant there of the same issue which
the Petitioner raises in this case. We find, contrary to the Petitioner's
X This change is pursuant to Public Law 189, 82d Congress , 1st Sess., approved October
22, 1951 ( Section" 18 of the Act).
R Canada Dry Ginger Ale, Incorporated, 97 NLRB 597.
98 NLRB No. 104.'
724 DECISIONS OF NATIONAL LABOR-RELAAIOrFS BOARD .
contention, that the recent amendment does not make the contract,
otherwise lawful, unlawful for purposes of contract bar.8
The Petitioner also contends that the following clause, article 5 of
the current contract, discriminates against nonunion employees :
It is agreed that the Union employees will be paid straight time
pay for the following legal holidays: ... providing the employee
works every day of the scheduled work week excepting the holiday.
It is further agreed that any employee required to work'on any of
said holidays shall be paid at the rate of time and one-half his
regular rate for all the hours worked in addition to the holiday
pay, and double time for all work performed on Sunday.
(Emphasis added.)
While the reference to "Union employees" in this paragraph raises
some doubt as to its legality, testimony on the record that the use of
this phrase was a scrivenor's error is uncontradicted; and this testi-
mony is further supported by the fact that the record affirmatively
reveals that holiday benefits have been granted to all employees,
regardless of union affiliation. We therefore find no merit in this
additional contention of the Petitioner'
Accordingly, we find that this contract is a bar to a. determination
of representatives at this time, and we shall dismiss the petition.
Order
IT IS HEREBY ORDERED that the petition filed herein be, and it hereby
is, dismissed.
• "An interpretation which makes the contract or agreement lawful will be preferred
over one which would make it unlawful." Williston on Contracts , revised edition,
Section,420.
} Cf. Decker Clothes, Inc ., 83 NLRB 484.
AL LAMAN MOTORS, INC. and UNITED AIITOMoBILE WORKERS , FEDERAL
LABOR UNION No. 18671, AFL, PETITIONER . Case No. 8-RC-1489.
March 18,195
Decision and Order
Upon a petition duly filed under Section 9 (c) of the National
Labor Relations Act, a hearing was held before Philip Fusco, 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 [Chairman Herzog and Members Houston and Styles] .
98 NLRB No. 102.