C. Hiltebrant Dry Dock Co., Inc. &

National Labor Relations Board - Board Decisions

Apr 24, 1952

98 N.L.R.B. 1275 (N.L.R.B. 1952)

C. HILTEBRANT DRY DOCK COMPANY, INC. 1275
C. HILTEBRANT DRY DOCK COMPANY , INC. ; ISLAND DOCK , INC. ; RELI-
ANCE MARINE TRANSPORTATION & CONSTRUCTION CORP . and INDUS-
TRIAL UNION OF MARINE AND SHIPBUILDING WORKERS OF AMERICA,
CIO, PETITIONER. Case No. 9-RC-498. April 24,195,0
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 Sidney Danielson, hearing
officer. The hearing officer's rulings made at the hearing are free
from prejudicial error and are herby 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 Murdock and Peterson].
Upon the entire record in this case, the Board finds :
1. The Employers are engaged in commerce within the meaning
of the Act.
2. The labor organizations involved 1 claim to represent certain em-
ployees of the Employers.
3. The Intervenors and the Employers contend that their current
contract executed August 21, 1951, and expiring August 21, 1952, con-
stitutes a bar to this proceeding.2 The Petitioner urges that the con-
tract is not a bar, upon the ground that it contains an illegal union-
security and preferential hiring clause. In answer to the further con-
1 The Kingston Metal Trades Council, which has been and is the bargaining representa-
tive for t ''e labor unions signatory to the current contract , intervened on behalf of itself
and the latter unions. The signatory unions are • International Association of Machinists,
Local 1609 ( AFL) ; United Brotherhood of Carpenters and Joiners of America, Local
1175 (AFL) ; Federal Labor Union No. 23287 (AFL) ; United Association of Journeymen
and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and
Canada, Plumbers Local Union No. 223 ( AFL) ; International Brotherhood of Boilermakers,
Iron Ship Builders and Helpers , Local 720 ( AFL). In addition to being represented at the
bearing by the Metal Trades Council, the Carpenters , the Plumbers , and the Machinists
were also separately represented . International Brotherhood of Painters , Decorators &
Paperhangers , Local 255, and International Brotherhood of Electrical Workers, Local 645,
which are participating members of the Council but not parties to the current contract, were
permitted to intervene subject to a proper showing of interest in this proceeding. As it
appears that these unions failed to present evidence of a proper or adequate showing of
interest , their intervention request is hereby denied.
2 The Employers also moved to dismiss the proceedings on the ground that the Board
had no jurisdiction to consider the validity of the union -security provisions of the current
contract before the Board obtains a declaratory judgment on the question of such validity
In a judicial proceeding ; otherwise , the Board is denying to the Employers their property
rights in violation of the fifth amendment . We find no merit in this contention . We have
already held that constitutionality arguments will not impede Board proceedings pending
court decisions , and that court litigation of property rights bears no relationship to our
investigation of questions concerning representation of employees . Sperry Gyroscope
Company, 88 NLRB 907 . The application of the Board's contract bar principles does not
constitute an adjudication of either the property rights of the parties or their collective
bargaining obligations with reference to the current contract . Pratt & Letchworth Co.,
Inc., 89 NLRB 124; Boston Machine Works Company, 89 NLRB 59 ; See also The Electric
Storage Battery Company, 94 NLRB 1308. In view of the foregoing considerations, the
motion to dismiss is hereby denied.
98 NLRB No. 201.
1276 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tentions of the Employer that these clauses do not invalidate the con-
tract as a bar, because they were never enforced and for the further
reason that they were later repealed, the Petitioner urges (1) that the
clauses in question were invalid per se regardless of enforcement and
that the amendment failed to cure this defect, as it was executed after
the Petitioner requested recognition and after the present petition
had been filed with the Board.
The Employers and the Kingston Metal Trades Council, which has
been the bargaining representative for the signatory AFL unions,
have had joint bargaining relations for several years. The contracts
executed between 1946 and the current contract were substantially the
same except as to wages and other monetary matters.
The current contract executed August 21, 1951, contains the follow-
provisions :
2. Hiring of Men-Union Shop
MEMBERSHIP IN GOOD STANDING in the appropriate union is a
condition of continued employment. In the event that any em-
ployee shall not remain in good standing, said employee shall not
be permitted to continue in the employ of the Company. Im-
mediately upon receipt of such notice by the Company from the
Union, it shall notify such Employee that he cannot continue
working for the Company and may not be re-employed until the
Union has notified the Company that said Employee has been
reinstated by his union.
In the event that it becomes necessary to hire new Employees,
the Company agrees that a man so hired by the Company shall,
within (30) days of employment, make application for member-
ship in the appropriate Union. If within a period of thirty (30)
days including the day he commences work, such person does not
apply for membership in the Union, the Company agrees to re-
place such Employee as soon as the Union can supply a Union
member who is qualified to perform the work. [Italics supplied.]
Examining the above provision in the light of the decision of the
Board in the Charles A. Krause Milling Co. case,3 we find that the
above clause, by not according a 30-day grace period to persons em-
ployed more than 30 days who were not already members of the Union
on the effective date of the contract, provides for union security in ex-
cess of that permitted by Section 8 (a) (3) of the Act, and is lawful
within the meaning of that section . Furthermore, in providing than
the Union will supply union members to take the place of those dis-
charged for failure to achieve good standing, the parties have executed
8 97 NLRB 536.
BELL AIRCRAFT CORPORATION 1277
a preferential hiring clause which also goes beyond the union security
permitted by Section 8 (a) (3) of the Act and is therefore illegal.4
Accordingly, the original contract cannot operate as a bar in this
proceeding.
With respect to the amendment of the contract executed January 12,
1952, we find that as the present petition was filed on January 2, 1952,
during a period when the unlawful provisions were in effect, the
amendment cannot bar it.' We also find no merit in the contention
that the provisions were not invalid because in actual practice they
were never enforced by the contracting parties. The Board has held
that the mere existence of an unlawful union-security provision acts as
a restraint upon any employees entitled to refrain from union activity
during the 30-day grace period provided by Section 8 (a) (3) of the
Act 6
In accordance with the agreement of the parties, we find that all pro-
duction and maintenance employees of the three Employers, C. Hilte-
brant Dry Dock Company, Inc.; Island Dock, Inc., and Reliance
Marine Transportation & Construction Corp., at their plants in King-
ston, New York, excluding all office and clerical employees, watchmen,
guards, truck drivers, timekeepers, and all supervisors as defined in
the Act, constitute a unit appropriate for the purposes of collective
bargaining within the meaning of Section 9 (b) of the Act .7
[Text of Direction of Election omitted from publication in this
volume.]
4 Slater . Sons, 96 NLRB 1026 ; Browne & Rurup , d/b/a McCoy Truck Tire Recap Co.,
93 NLRB 667.
National Lead Company, 97 NLRB 651.
9 National Lead Company , supra.
7 Although at the time of the hearing in this case , the Kingston Metal Trades Council
was in compliance, several of the unions who were members of the Council were not in
compliance . We shall nevertheless accord the Trades Council a place on the ballot, as it
appears that all constituent members of the Council having an interest in the employees
in the unit in which the election is directed have achieved compliance . Mathieson
Chemical Corporation, 81 NLRB 1355, 1360; Cities Service Refining Corporation, 83
NLRB 890.
BELL AIRCRAFT CORPORATION and LOCAL 501, INTERNATIONAL UNION,
UNITED AUTOMOBILE, AIRCRAFT & AGRICULTURAL IMPLEMENT WORK-
ERS OF AMERICA, UAW-CIO, PETITIONER. C Se No. 3-RC-836.
April 24, 1952
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 William Naimark,
hearing officer. The hearing officer's rulings made at the hearing are
98 NLRB No. 206.