Newton Investigation Bureau

National Labor Relations Board - Board Decisions

Apr 18, 1951

93 N.L.R.B. 1574 (N.L.R.B. 1951)

1574 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
TOM A. NEWTON D/B/A NEWTON INVESTIGATION BUREAU and GUARDS*
AND WATCHMEN UNION, ET AL., PETITIONER . Case No. 21-RC-1716.
April 18,1951
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 Eugene Matthew
Purver, 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 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
2. The labor organizations involved claim to represent certain em-
ployees of the Employer.
3. The Employer and the Intervenor executed a contract, dated
November 10, 1947, which provides for an automatic yearly renewal
subject to a 60-day written notice of a desire to modify or terminate
the agreement. This contract was automatically renewed on No-
vember 10, 1950, before the filing of the petition, and constitutes a
bar to a present determination of representatives unless, as claimed
by the Petitioner, Section I of the agreement constitutes an illegal
union-security provision, contrary to Section 8 (a) (3) of the amended
Act. There has been no union-shop authorization election.
The clause in question reads as follows :
RECOGNITION :
Section I.
The Employer recognizes the Union as the sole collective bar-
gaining agent for its employees, including all persons employed
as guards and patrolmen at waterfront installations, docks, piers,
terminals, warehouses and aboard vessels and warehouses and pro-
duction plants. It is understood that in hiring to fill all vacancies
or new positions, the Employer will, under this Agreement, choose
I Permission to intervene was granted to Local 26 of the Longshoremen 's and Ware-
housemen 's Union, herein called the Intervenor , upon its showing of a sufficient interest
in the proceedings.
2 The Employer , having its principal place of business at Long Beach, California,
annually supplies necessary protective services , valued in excess of $ 50,000, to various
steamship companies which are instrumentalities of interstate and foreign commerce.
We find that it will effectuate the purposes of the Act to assert jurisdiction in this
proceeding . Hollow Tree Lumber Company, 91 NLRB 635.
93 NLRB No. 261.
NEWTON INVESTIGATION BUREAU 1575
his own source of new employees, providing, however, such per-
sons employed are satisfactory to both parties of this Agreement.
(Emphasis added.)
The Petitioner contends that the provision requiring the Union's
approval of applicants for jobs makes union membership a condition
of employment. The Intervenor, on the other hand, argues that this
clause has the sole purpose of assuring it of the reliability and trust-
worthiness of persons employed in the future as guards, who will be
working alongside its members also employed as guards and
watchmen.
The clause in question is ambiguous. It is not clear from a read-
ing of the contract whether the parties in effect conditioned employ-
ment upon membership in the Intervenor by permitting it to veto
as not satisfactory employees who would not join the Intervenor or
simply intended to allow it to interview job candidates from a safety
standpoint to protect its members engaged in the hazardous occupa-
tion of guards. Our dissenting colleague concedes that the clause
permits Intervenor to veto persons hired "if for some reason they are
not `satisfactory' to that labor organization." Although asserting
that the clause is not ambiguous, he fails to point out what it does
mean in terms of the reasons Intervenor can utilize as grounds for
vetoing a prospective employee as not "satisfactory" if the area is
in fact limited. It is clear, however, that the contract does not in
terms place any limit on the grounds for Intervenor's dissatisfaction
with a prospect. Plainly, then, contrary to our dissenting colleague,
the clause would "permit" the Intervenor to utilize nonunion status
as a reason for vetoing a prospect as not "satisfactory," unless the
parties actually intended to limit the grounds of dissatisfaction to
some such reason as safety factors. Under these circumstances, we
find it necessary to look to the evidence in order to determine the
intent of the parties.' The record discloses uncontradicted evidence
to the effect that in practice all applicants for employment, found
acceptable by the Employer, are sent to the Intervenor and are re-
quired to become members thereof before they commence work. This
has occurred under the enforcement by the Union of Section I of
the contract and has continued ever since the contract was executed
on November 10, 1947. In view of the foregoing facts and upon
the entire record in the case, we are persuaded that the parties intended
and executed a union-security clause which goes beyond the union
security permitted by Section 8 (a) (3) of the Act and is therefore
illegal. Accordingly, the contract cannot operate as a bar to this
proceeding.4
8 N. L. R. B. v. Scientific Nutrition Corporation, 180 F. 2d 447 (C. A. 9) ; C. B. Andrews
Company, 86 NLRB 59.
1 C. Hager & Sons Hinge Manufacturing Company, 80 NLRB 163.
1576 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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. In accordance with the agreement of the parties, we find that
all persons employed by the Employer as guards, and patrolmen at
waterfront installations, docks, piers, terminals, warehouses, and
aboard vessels, but excluding all others including office employees,
professional employees, and supervisors as defined in the Act, con-
stitute a unit appropriate for the purposes of collective bargaining
within the meaning of Section 9 (b) of the Act.
[Text of Direction of Election omitted from publication in this
volume.]
CHAIRMAN IlERzoG, dissenting :
I cannot agree with my colleagues that the recognition clause of
the contract in question is ambiguous, and has been construed by the
parties to require membership in the Intervenor as a condition of em-
ployment. Therefore I would find the contract a bar to an election
during its term. It seems clear to me that the clause in question does
not, under any interpretation, make membership in the Intervenor a
condition of employment. Indeed, it does not even, as the majority
says, allow the Intervenor to interview candidates before they are
hired. It merely allows the Intervenor to object to persons hired if
for some reason they are not satisfactory to that labor organization.
Nothing in the contract requires or permits the Intervenor to object
to any employee because of his° union or nonunion status. If the
parties are, as a matter of practice, requiring membership in the In-
tervenor as a condition of employment, that practice appears to me to
be entirely outside the contract. It could be more appropriately dealt
with under the unfair labor practice provisions of the Act where, in
an adversary proceeding, the legality of the contract could be more
fully litigated and more adequately judged.
QUEEN CITY VALVES, INC. and DISTRICT 34, INTERNATIONAL ASSOCIA-
TION OF MACHINISTS . Case No. 9-CA-327. April 19, 1951
Decision and Order
On January 25, 1951, Trial Examiner Bertram G. Eadie 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 copy of the Inter-
mediate Report attached hereto. Thereafter , the Respondent and the
93 NLRB No. 264.