Great Atlantic & Pacific Tea Co.

National Labor Relations Board - Board Decisions

Oct 14, 1952

100 N.L.R.B. 1494 (N.L.R.B. 1952)

1494 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
There has been some interchange of employees between the control
plant and the wire and cable plant. Since 1950, there have been no
transfers or interchange between the wire -and cable and transformer
plants. Prior to the reorganization, there had been transfers between
the transformer plant and the wire and cable plant in cases of layoff.
In view of the foregoing, and particularly the fact that such collec-
tive bargaining as has been engaged in since 1950 between the Em-
ployer and the Intervenors with respect to these two plants has been
on a joint basis, and that none of the parties herein asserts the pro-
priety of three separate plant units, we are persuaded that a single-
multiplant unit of the control and wire and cable plants is appropriate.
We find that the following employees constitute a unit appropriate
for the purposes of collective bargaining within the meaning of Sec-
tion 9 (b) of the Act:
All production and maintenance employees of the Employer at its
control plant and wire and cable plant, 1034-66th Avenue, Oakland,
California, including combination janitors and watchmen,° but ex-
cluding guards, clerical employees, and supervisors as defined in the
Act.
Order
IT IS HEREBY ORDERED that the Order of the Board dated May 16,
1952, in this matter be, and it hereby is, vacated and set aside.
[Text of Direction of Election omitted from publication in this
volume.]
MEMBERS MURDOCK and PETERSON took no part in the consideration
of the above Supplemental Decision, Order, and Direction of Election.
u All parties agree that these employees should be included in the unit.
GREAT ATLANTIC & PACIFIC TEA COMPANY (NATIONAL BAKERY DIVI-
SION) and THOMAS J. GAFFNEY AND JOHN T. RAFTER, PETITIONERS
and LOCAL 484, BAKERY & CONFECTIONARY WORKERS INTERNATIONAL
UNION OF AMERICA, AFL. Case No. 2-UD--5. October 14, 1952
Decision and Direction of Election
Upon a petition duly filed under Section 9 (e) of the National
Labor Relations Act, a hearing was held before L L. Broadwin,
hearing officer. The hearing officer's rulings made at the hearing
are free from prejudicial error and are hereby affirmed.
100 NLRB No. 251.
GREAT ATLANTIC & PACIFIC TEA COMPANY 1495
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 employees
of the Employer.
3. In October 1951 the Employer and the Union entered into a 2-
year collective bargaining contract which contains a union-security
provision. The petition in this case was filed on November 1, 1951,
and seeks an election to rescind the Union's authority to make a
union-security agreement.
The Employer and the Union contend that the contract is a bar to
this proceeding. However, Section 9 (e) (1) of the Act specifically
contemplates the filing of a union-shop deauthorization petition by
employees "... covered by an agreement ... made pursuant to sec-
tion 8 (a) (3). . . ." It is clear, therefore, that the normal contract-
bar principles established by the Board cannot be applied to union-
shop deauthorization cases 1 and we find the contract in this case no
bar to the present proceeding.
We find that the petition in this case has been properly filed and
complies in all respects with the provisions of Section 9 (e) of the
amended Act.
4. All full-time production and maintenance employees and sani-
tation and shipping employees at the Employer's bakery located at
141st Street and Southern Boulevard, Bronx, New York, excluding
all warehouse employees, office and clerical employees, casual seasonal
employees, professional and technical employees, part-time employees,
watchmen and guards, and supervisors as defined in the Act, consti-'
tute a unit appropriate for the purposes of an election under Section
9 (e) (1) of the Act.
5. The Union contends that, even if an election is now directed
and an affirmative deauthorization vote is cast, the effect of a deauthor-
ization vote should nevertheless only be prospective, and the existing
union-security agreement should be held effective for the remainder
of its term, which does not expire until October 1953. We must reject
this contention, which would postpone for a year any consummation
of the employees' expressed desires. And we do not believe that
Congress intended the expression of those desires, whether affirmative
or negative, to be postponed until the agreement has run its course.
As we see it, the union-security clause was valid subject to a condition
subsequent.
1 Compare Utah Wholesale Grocery Co., et al., 79 NLRB 1435, where the Board held
that contract-bar rules did not apply to petitions for the recently eliminated union-shop
authorization elections.
1496 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
By the 1951 amendments to the Act,' Congress eliminated the
requirement for a mandatory union-shop authorization procedure,
but provided that the allowable type of union-security clause could
be included in a collective bargaining agreement,
... unless following an election held as provided in section
9 (e) within one year preceding the effective date of such agree-
ment, the Board shall have certified that at least a majority of
the employees eligible to vote in such election have voted to
rescind the authority of such labor organization to make such
an agreement. . .. a
'Section 9 (e) (1), as amended, provides:
(1) Upon the filing with. the Board, by 30 per centum or more
of the employees in a bargaining unit covered by an agreement
between their employer and a labor organization made pursuant
to section 8 (a) (3), of a petition alleging they desire that such
authority be rescinded, the Board shall take a secret ballot of
the employees in such unit and certify the results thereof to such
labor organization and to the employer.
A majority of the Board is satisfied that the amended Act does
not specifically provide what effect an affirmative deauthorization
vote should have on an existing union-security agreement. The pro-
viso in Section 8 (a) (3) sets forth the conditions which must be
satisfied before a union-security agreement may be validly executed,
and Section 9 (e) (1) outlines the necessary procedures for holding
the deauthorization election. Contrary to the contention in the dis-
senting opinion, the, simple fact is that in neither section has Congress
dealt with the question of the validity of a union-security agreement
once employees have voted to rescind the contracting union's authority.
Nor is an answer to this question to be found elsewhere in the express
provisions of the Act. Under these circumstances we consider it not
only appropriate, but necessary, to examine the legislative history of
the 1951 amendments in order to ascertain the intent of Congress on
this question 4
1 Public Law 189, 82d Congress , 1st Session , approved October 22, 1951.
"Section 8 (a) (3) (ii). Additional conditions provided by the amended Act are
that the labor organization must be the legally constituted bargaining representative and
in compliance with the filing requirements of Section 9 (f), (g), and (h).
4 The line of cases illustrated by the now ancient Caminetti decision , cited in the dissent,
are ,therefore inapposite . Furthermore , more recent decisions of the Supreme Court
emphasize that the basic principle of statutory construction is to discover the intent of
the legislative body. These decisions evidence much greater liberality in resorting to
legislative history and the policy of the legislation as a whole in order to ascertain and
enforce the legislative will. See United States, et at. v. American Trucking Association,
Inc., et at, 310 U. S. 534 ; United States , et at. v. Champlin Refining Co ., 341 U. S. 290.
GREAT ATLANTIC & PACIFIC TEA COMPANY 1497
The Senate and House Committees used substantially the same
language in reporting the amendments : 6
While discontinuing the mandatory election procedure which has
proved expensive , burdensome , and unnecessary , the bill continues
to safeguard employees against subjection to union shop agree-
ments which a majority disapproves . . . . (Emphasis supplied.)
After 1947, and before the 1951 amendments , employees were "safe-
guarded" against "subjection to union-shop agreements which a
majority disapproves ," for they first had to vote affirmatively to
subject themselves to such agreements . If a majority voted against
granting the necessary authority to their bargaining representative,
no union-security agreement could validly have been made. The
amendment , Congress says, "continues" this safeguard . This can only
mean one thing-that Congress , by the amendments, preserved the
right of employees to be free , as they were before, of compulsory union
membership if a majority of them so desired . That fundamental
protection was accorded employees under the amended procedure by
providing a method, negative instead of affirmative , and subsequent
instead of precedent , for determining their desires. Thus Congress,
by the 1951 amendments , accomplished its purpose of eliminating the
prior costly authorization elections but retaining the earlier safe-
guard. This was done by giving labor organizations a presumptive
authority to enter into union-shop agreements and at the same time
providing an escape for any unwilling majority covered by such an
agreement , through the opportunity afforded by Section 9 (e) (1)
for an affirmative deauthorization vote. Only by holding that an
affirmative deauthorization vote immediately relieves employees of
the obligations imposed by an existing union-security agreement can
this Board give effect to the basic congressional objective , unchanged
by amendments directed solely at procedural relief, of not imposing a
union-security agreement upon an unwilling majority.
To adopt the view urged , with so much underscoring , in the dis-
senting opinion would be to ascribe to Congress an intention to
deprive a possibly unwilling majority for a substantial period of
time-in this case, as long as 2 years altogether-of the protection they
enjoyed before the amendments .6 We cannot justify so long a post-
ponement of the fruits of balloting . We, too, recognize the possible
unstabilizing effect of voiding the union -security portion of a contract
582d Congress , First Session , Senate Report No . 646 (August 16, 1951 ), and House
Report No. 1082 (October 1, 1951).
The Board 's established policy is to hold collective bargaining agreements of 2-year
duration , or even longer where the custom in the industry warrants it, effective for con-
tract-bar purposes . Association of Motion Picture Producers , Inc., et at ., 88 NLRB 521
California Walnut Growers Association, 77 NLRB 756.
1498 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in mid-term. But the Board's function here is to construe the policy
of Congress as made, not to remake it. We believe our construction
of the amendments to be more consistent with the evident congressional
purpose than would be the continued imposition of a union-shop
on employees against their recently expressed wil1.7 Had Congress
in fact intended that union-security provisions should remain fully
operative for a contract term despite an affirmative vote of employees
rescinding the union'sV authority to negotiate such an agreement, it
would have been simple enough to have provided by the legislation
that the rescission applied only to extensions or renewals of such
agreements. This was not done.
We disagree with the suggestion of our colleagues that the result
we reach accords less protection to union-security agreements than
they had before the 1951 amendments. In enacting those amend-
ments, Congress was aware of the Board's experience that in more
than 90 percent of the union-shop authorization elections conducted
a fter 1947 employees granted the necessary authority to their bargain-
ing representative. Congress therefore could assume, in accord
with demonstrated reality, that in the vast majority of cases employee
sentiment would continue in favor of the union shop for its entire
term. Our experience thus far has not proved otherwise. In that
small percentage of cases in which, before the amendments, the em-
ployees rejected union security, no such agreement could validly have
come into existence in the first place. Surely it cannot be said that
that which was never given is now being taken away, or even dimin-
ished. All that this decision does is to permit employees in these
relatively few cases to escape the compulsion of a union-security
agreement to which, under the old procedure, they could never have
been subjected. Nothing in the 1951 amendments suggests that
Congress intended to impose upon these employees, against their
expressed will, a union-security agreement for any period of time
after they had declared their desires. .
Nor are we impressed with the argument of our dissenting col-
leagues that, under the construction here adopted, the union-security
clause in an agreement would necessarily be unprotected for any pe-
riod of time against a minority request fora deauthorization election.
That is the procedure Congress made available, when it eliminated the
prior authorization election, to assure escape from a union-security
agreement in those instances where the majority opposed it. Our de-
cision is founded on the assumption that, as the employees concerned
' we see no basis for assuming , as does the dissenting opinion, that the Board will
again be burdened with the expensive and normally unnecessary elections which the 1951
amendments were designed to eliminate . In the 10 months that followed the 1951 amend-
ments, only 15 union deauthorization petitions were filed in the entire United States.
GREAT ATLANTIC & PACIFIC TEA COMPANY 1499
have never affirmatively authorized a union-security provision, the
contracting union has such authority upon a conditional basis only.
Any disturbing factors which may possibly arise as the result of our
direction of election here are only those which, under our construction
of the 1951 amendments, the parties might reasonably have expected
to result from the presence of the reserved statutory right to rescind
the Union's authority to insert a union-security clause in an agreement,
the other provisions of which would in any event remain intact.
A deauthorization election must be, and is, directed in accordance
with,the requirements of the 1951 amendments to the Act.
[Text of Direction of Election omitted from publication in this
volume.]
MEMBERS MURDOCK and STYLES, dissenting :
The petition in this case was filed after the Employer and the Union
had orally agreed to a contract containing a lawful union-security
provision and a few days before the written document incorporating
that agreement was formally executed. There is no question, as our
colleagues admit, that this contract was complete and legal in every
respect at the time the petition was filed. Nonetheless, the petition
seeks, and our colleagues grant, an immediate election to determine
whether the union-security provisions of that contract shall be im-
ntediately revoked despite the 2-year term of the agreement. Such
an election, in our opinion, is barred by both the law and the merits
of this case. As the majority opinion departs from the terms of the
statute and its mandate and seems to be based, instead, on our col-
leagues' concept of what the Act might have stated or should have
stated, we are forced to dissent.
The only issue in this case is what the Act, on which all powers of
this Board are based, authorizes and directs this agency to do with
regard to union-security elections and the effect of such elections.
That authorization and direction is clear and unmistakable, and is
contained, in full, in Section 8 (a) (3) and Section 9 (e) (1) of the
Act. Section 8 (a) (3) states that "nothing in this Act, or in any
other statute of the United States" shall preclude the making of a
limited union-security contract if three conditions are met. These
conditions are, in short, that the union be the representative of an
appropriate unit; that the union comply with the filing provisions
of the Act; and that no election to "rescind the authority of such
labor organization to make such an agreement" shall have been
held "within one year preceding the effective date" of the con-
tract. Section 9 (e) (1) simply provides that the employees in a
unit covered by such a union-security contract may petition for an
1500 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
election as to whether the authority to make such an agreement shall.
be revoked.'
Applying these sections- to the facts before us, it is not contested
that the Union herein had, at the time of the execution of the con-
tract, full statutory authorization to make such an agreement. The
Union was in compliance; it was the representative of an appropriate
unit; and its authority to make such an agreement had not been
revoked in the year preceding the contract's execution. When Sec-
tion 8 (a) (3) specifically provides that "nothing in this Act" would
prevent such a contract from being valid, there is only one reasonable
conclusion to draw and that is that Congress expected and directed
that such a contract would be an effective agreement not subject to
sudden extinction during its term.
Section 9 (e) (1), under which the instant petition is filed, pro-
vides in explicit terms for elections for a limited purpose only. That
purpose, as stated unambiguously in the Act, is to determine whether
or not a union's authority to bargain for union-security provisions
shall be withdrawn. The Act thus specifically provides that while
a union-security contract must be in existence at the time of an elec-
tion under this section, the election itself will only determine the
right to bargain for such contracts. The inevitable conclusion to
be drawn is that once such a union shop has been established, it may
not continue indefinitely without challenge, for, during its life, the
authority to negotiate future extensions of union-security may be
withdrawn 9 To repeat, the purpose of elections under Section 9
(e) (1) as set forth clearly in the Act, is not to determine whether
a contract shall be revoked but whether certain authority to bargain
shall be withdrawn. - There is not one word in the statute, as indeed
the majority concedes, to indicate or even suggest that such an elec-
tion is on the question of voiding an existing union-security contract.
Admitting this, our colleagues of the majority turn to a novel con-
tention. Congress, they say, did not deal in the statute with the
"question of the validity of a union-security agreement once em-
ployees have voted to rescind the contracting union's authority."
(Emphasis supplied.) Accordingly, because Congress chose to omit
anything on the subject, limiting itself to providing rescission of
authority to bargain following a deauthorization vote, they say they
may proceed to determine what effect the deauthorization vote should
have on existing contracts after searching the legislative history.
8 Section 9 (e) (1) uses the phrase "such authority " without other identifying language.
It is obvious , however, that this can refer only to "the authority of such labor organiza-
tion to make such an agreement" as spelled out in Section 8 (a) (3).
9 Our colleagues assert that Congress would have "provided by the legislation that the
rescission applied only to extensions or renewals of such agreements " if it intended this
result. That , of course . Is precisely what Congress did by using the terminology noted in
Sections 8 (a) (3), and 9 ( e) (1).
GREAT ATLANTIC & PACIFIC TEA COMPANY 1501
This procedure is contrary to two canons of statutory construction
and amounts in our view to legislating where Congress deliberately
did not. Thus it violates the legal maxim expressio unius est exclusio
alterius, which means that where the legislative body has expressly
spoken with respect to one thing (here the withdrawal of authority
to enter into contracts), the omission to speak concerning other things
(here invalidation of existing contracts) gives rise to the inference
that the omissions were intended by the legislative body1° Resort
to legislative history in an effort to avoid the plain language of the
statute which accords a deauthorization election only an effect on
authority to enter into contracts, also runs counter 'to another well-
established rule of statutory construction stated in Camivnetti v. U. S.,
242 U. S. 470, 490, where the Supreme Court said :
... it has been so often affirmed as to become a recognized rule,
when words are free from doubt, they must be taken as the final
expression of the legislative intent, and are not to be added to
or subtracted from by considerations drawn from titles or desig-
nating names or reports accompanying their introductions or
from any extraneous source. In other words, the language being
plain, and not leading to absurd or wholly impracticable conse-
quences, it is the sole evidence of the ultimate legislative intent 12
(Emphasis supplied.)
However, even if it is deemed appropriate to turn to the legislative
history under present circumstances, the sparse history of the sections
,in question offers no refuge for proponents of the theory set forth
in the majority opinion. The sole bit of such legislative history
available (of which the majority quotes one sentence out of context)
-not only fails to substantiate any intent to invalidate existing con-
tracts, but, on the contrary, fully supports the plain language of
Sections 8 (a) (3) and 9 (e) (1). The full quotation is as follows:
While discontinuing the mandatory election procedure which
has proved expensive, and unnecessary, the bill continues to
safeguard employees against subjection to union-shop agreements
which a majority disapproves. To accomplish this it is provided
that the Board shall conduct elections on the petition of 30 percent
io Sutherland , Statutory Construction ( 3rd Ed ), Section 4915 . "As the maxim is
applied to statutory interpretation, where a form of conduct , the manner of its perform-
ance and operation, and the persons and things to which it refers are affirmatively or
negatively designated, there is an inference that all omissions are intended by the legis-
lature." ( Emphasis supplied.)
10 The majority choose to characterize this case as the "now ancient Caminetti decision"
and "inapposite ," referring to U. S . v. American Trucking Assocsatson, 310 U. S . 534, as an
example of more recent decisions permitting greater liberality in the use of legislative
history. In their zeal to brush aside the Caminetts case as obsolete , the majority have
apparently failed to note that the American Trucking decision cites with approval the
Caminetti case.
1502 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
or more of the employees in a bargaining unit to determine whether
the union's authority to enter into a union-shop arrangement shall
be rescinded. (Emphasis supplied.)
Again it is patent that all the Congress contemplated in establishing
elections under Section 9 (e) (1) was the holding of referenda on
the issue as to whether authority to bargain should be withdrawn.
Again there is no mention, no hint, no indication of revocation of
contracts in mid-term. If, indeed, Congress had intended that such
elections should void existing contracts, it is reasonable to assume
that it would not have spoken as it did but would have simply stated
flatly that such would be the result of the elections. What Congress
did intend, Congress stated without qualification or ambiguity and
that statement is in clear contradiction to the interpretation assumed
by our colleagues.
Nor can it be said, on any defensible legal ground, that immediate
revocation of a union-shop contract is the type of "safeguard" noted
in the first sentence of the committee report. The Labor-Manage-
ment Relations Act of 1947 set up two such "safeguards" in amending
the Wagner Act. These, of course, consisted of referenda to grant
a labor organization authority to bargain for a union shop and refer-
enda to rescind such authority to bargain, once granted. In the 1951
amendments, Congress determined that the first of these was no longer
necessary but retained the second in almost precisely the same wording
as previously incorporated in the Act. This is the "safeguard" re-
ferred to by the committee report, and not any newly created election
to void or revoke an existing contract. Inasmuch as Congress explic-
itly retained only the elections to revoke bargaining authority, there
is no basis, legal or otherwise, for this Board now to assert that any
additional result was intended for such elections.
The majority finally resorts to the assumption that "Only by holding
that an affirmative deauthorization vote immediately relieves em-
ployees of the obligations imposed by an existing union-security agree-
ment can this Board give effect to the basic congressional purpose,
unchanged by amendments directed solely at procedural relief, of
not imposing a union-security agreement upon an unwilling majority."
We challenge both the legality and necessity of such an assumption.
It presupposes the desirability of a method which was neither passed
upon nor provided for by the Congress whose basic purpose it pur-
ports to follow. It supplies a punitive result for which there is neither
statutory nor legislative sanction. In the absence of any congressional
mandate to this Board to impose such measures, and there is none, we
note the serious practical consequence of such a step-consequences
which make it extremely unlikely that Congress would desire this par-
GREAT ATLANTIC & PACIFIC TEA COMPANY 1503
titular implementation (if the Board was empowered to add one) of
what the majority considers to be the basic purpose of that body.
First, it is obvious that the majority decision will critically injure
the stability of bargaining relationships in this country. Union-
security provisions, like any other thing of value, are not adopted in
collective bargaining negotiations without sacrifice of other gains by
the union. Yet the majority would allow union-security clauses to
be nullified at any time while leaving the remainder of the contract
intact. That such a decision plays havoc with the often delicate
balancing of interests encompassed in such agreements is beyond
question. It is not a course of action in harmony with the expressed
desire of Congress, stated elsewhere in the Act, that contracts fairly
negotiated in the give-and-take of collective bargaining be protected
from modifications and revisions not mutually acceptable to the con-
tracting parties.12 It is in direct opposition to the same fundamental
concept of stability established by the Board's "contract bar" rule
wherein we have determined that a bargaining agent with a valid con-
tract should not be displaced at each transient fluctuation of the
majority of employees during the contract term. It does violence to
these principles and it opens the lid of a veritable Pandora's box
of evils.'
Secondly, the majority decision seriously and unnecessarily endan-
gers the rights of both employees and unions. It is clear that the
decision strips a valuable property right, for so contracts and the
privileges granted therein have consistently been regarded, from the
contracting union. It further allows a temporary majority to en-
croach upon the rights of a minority by revoking part of a valid con-
tract while leaving the remainder in effect. Once a contract is so
mutilated the union cannot compel further bargaining to again bal-
ance the interests of all parties, for Section 8 (d) precludes this." If
a majority is to be given this hitherto unknown power to rescind parts
of an agreement in mid-term, then the entire contract, for equity to
be done, should be set aside and the parties returned to the status quo
existing prior to the agreement. Harsh as such a ruling would be, it
would not, at least, leave a lopsided, unbalanced, and partially revoked
document to remain as a barrier to a fair expression of agreement.
14 See footnote 12, supra.
18 Section 8 (d) of the Act states, in part , that the duties to bargain collectively enu-
merated in the statute "shall not be construed as requiring either party to discuss or
agree to any modification of the terms and conditions contained in a contract for a fixed
period , if such modification is to become effective before such terms and conditions can
be reopened under the provisions of the contract."
13 It takes little imagination and only small understanding of the realities of labor-
management relationships and collective bargaining to conceive of the various means
by which dissident minorities, combinations of intraunion forces , or antiunion adherents
could use the tactical advantage of continuous vulnerability of such a contrnct to disrupt
the bargaining unit and the bargaining representative.
1504 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Nor is it any valid answer to state, as our colleagues do, that it is
Congress which has dictated this disruption of collective bargaining
relationships. The majority cites, and can cite, no expressed opinion
of Congress to support such a position. We have noted at length
that the instant decision,is without the authorization of the statute.
Indeed, the latest action of Congress has been to liberalize the oppor-
tunity of labor organizations to enter into union-security agreements,
an action hardly in accord with the assumed and unexpressed fears of
that body which the majority summons as supporting the drastic
action which it takes.
Our colleagues finally contend that, in any event, "All that this de-
cision does is to permit employees in these relatively few cases to escape
the compulsion of a union-security agreement to which, under the old
procedure, they could never have been subjected." Such a position
misconceives both the law and the realities. Among other things, it
makes the unsubstantiated assumption that a majority during the pas-
sage of several years consistently and universally either supports or
does not support any proposition. The reasons cited by Congress for
deleting the earlier requirement of union-shop authorization elections
stressed the overwhelming evidence that such elections were useless,
burdensome, and expensive. This evidence, including that submitted
by the Board, showed conclusively that employees would, almost-with-
out exception, grant their elected representative authority to bargain
for a union shop. However, in every such election for union security
conducted by the Board there was a minority vote against the union
shop.15 Under the original Taft-Hartley Act provision, despite the
existence of this minority, the authority to make union-shop contracts
was protected for a year from the date of the authorization election
and the ensuing contract itself was invulnerable for at least that period
of time.16 Yet the majority decision, notwithstanding the fact that
Congress was intent upon liberalizing the procedures, holds that un-
der the amendments such a contract is not protected for any period of
time against a minority request for an election to destroy the provision.
As noted previously, all units for which a union-shop is or has been
proposed, contain a minority of varying size which is opposed to such
provisions. Under our colleagues' decision, any union-security con-
The Board ' s statistical totals noted in its sixteenth Annual Report ( p 301 ) show that,
at the time of- the 1951 amendments to the Act , the percentage of employees eligible to vote
who cast their ballots for union -shop authorizations had declined to 71 .5 percent.
16 This was true, even under the majority view of the effect of such elections on contracts,
because of the general prohibition in the Act against holding an election within 12 months
-of a prior election . And if the parties negotiated a union-security provision subject to
holding a UA referendum , once the election had been held the provision was then invulner-
able to attack for 1 full year from the date of the election . In our opinion , of course, it
would have been invulnerable to attack then as now during the full term of a contract for
a reasonable period.
CENTRAL MERCEDITA, INC. 1505
tract is now vulnerable, at any time , to attack by such a minority.
Union-security deauthorization elections, under these conditions, may
well become as expensive , burdensome , and useless a process as that
which Congress clearly intended to discontinue in 1951.17 The ma-
jority cite nothing to warrant the conclusion that Congress intended to
give union-security contracts lees protection than they were formerly
.accorded. On the contrary, it would seem only reasonable that Con-
gress, when it granted authority to unions to enter into such agree-
ments, realized the time, energy, and sacrifice involved in their nego-
tiation and assumed that they would be protected for a reasonable
time to allow all parties time to assess their worth.
The term of the contract entered into by the Union and the Em-
ployer herein appears to be a reasonable period within which to gain
such experience and to conclude whether or not a union shop was
beneficial or detrimental to all parties concerned. The contract should
therefore constitute a bar, as all other valid contracts do under Board
decisions, to an election during its term 18 Accordingly, as the Act
clearly authorizes only the holding of referenda to determine whether
or not authority to negotiate a new union-security contract shall be
withdrawn from the Union, not whether or not a contract should be
nullified, we would dismiss the instant petition without prejudice to
refiling near the close of the current agreement.
11 As noted in footnote 15, supra, it is obvious front the Board ' s statistics that there are
many instances in which 30 percent of the bargaining unit may be persuaded , for one rea-
son or another , to petition for a deauthorization election . The mere fact that only a few
such petitions have been received since the 1951 amendments has little or no significance,
for the public has not known until this present decision of our colleagues that the Board
would expand the clear language of the statute to authorize revocations of contracts rather
than bargaining authority.
18 Such a petition could be entertained during the last few months of the expiring con-
tract and before negotiations for a new contract commenced . Inasmuch as the current
contract is for a term of 2 years from October 5 , 1951, an election held now would be mean-
ingless because even though the Union lost its authority to negotiate a new union -security
agreement , it would be reinvested with such authority under the terms of Section 8 (a) (3)
by mere lapse of time before the occasion would arise for negotiating a succeeding
agreement.
CENTRAL MERCEDITA , INC. and UNION DE TRABAJADORES DE OBRA, DE-
POSITO Y TRANSPORTACION DE CENTRAL MERCEDITA , INDEPENDENT,
PETITIONER . Case No. 24-RC-347. October 14, 1962
Supplemental Decision and Order Amending Decision and
Direction of Elections
The National Labor Relations Board (hereinafter called the Board)
issued its Decision and Direction of Elections in the above-entitled
matter on September 18, 1952. The Board found therein that the
100 NLRB No. 252.