United States Gypsum Co.

National Labor Relations Board - Board Decisions

Dec 29, 1951

97 N.L.R.B. 889 (N.L.R.B. 1951)

UNITED STATES GYPSUM COMPANY 889
UNITED STATES GYPSUM COMPANY and INTERNATIONAL WOODWORKERS
• or AMERICA , CIO. Case No. 15-CA-134. December 29, 1951
Order Amending Decision and Order
On May 1, 1951, the Board issued its Decision and Order in the
above-entitled matter.' Thereafter, on June 15, 1951, Respondent
filed a motion for reconsideration, making two contentions : First,
that the Board's finding of unlawful refusal to bargain must be set
aside because, at the time of the refusal, the Union's majority status
was based upon an investigation of bargaining representatives con-
ducted while the CIO, with which the Union was and is affiliated, was
not in compliance with the filing requirements of the Act. Second,
that the Board's entire Decision and Order was invalid because the
complaint was based only upon the Union's second amended charge,
filed more than 6 months after the occurrence of the unfair labor prac-
tices found, or, alternatively, because the original and first amended
charges, though filed within the 6-month period, were filed at a time
when the CIO was not in compliance. The Board has duly considered
the motion.
We find merit in Respondent's first contention. The Union's claim
to recognition as bargaining r6presentative at Respondent's plant was
based upon an election held and a certification issued in a representa-
tion proceeding initiated by the Union and conducted by the Board
while the CIO was not in compliance. Although this election and
certification, which were invalid under the holding of the United
States Supreme Court in N. L. R. B. v. Highland Park Manufacturing
Company,' have been restored to validity by legislative amendment,'
Respondent may not now be held liable for its past failure to "honor"
them 4 We hold that Respondent's refusal to bargain in this case con-
stituted a failure to honor the election and certification; we have no
alternative but to dismiss the complaint's allegation of an unlawful
refusal to bargain.5
Respondent's other contentions, by which it would justify dismiss-
ing the entire complaint, are rejected. The Board's complaint in this
case was the culmination of an investigation set in motion by the
Union's original charge. The complaint could properly have issued
2 94 NLRB 112.
z 341 U. S 322 ; see also N . L. R. B. v. Clark Shoe Company , 189 F . 2d 731 (C. A. 1).
' Taft-Humphrey Act, Public Law 189, Chap. 534 (82d Cong ., 1st Sess. ), par. (a).
4 Ibid.
5 The Advertiser Company, Inc ., 97 NLRB 604; Union Bus Terminal of Dallas, Me,
97 NLRB 206.
97 NLRB No. 125.
890 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
even if no amended charges had been filed .6 Hence the date of that
original charge, and not that of the amended charge, is the date to be
considered in calculating the 6-month limitation period established
by Section 10 (b) of the Act? As the CIO was in compliance with
Section 9 (f), (g), and (h) of the Act when the complaint was issued,
we hold it to be irrelevant that it was not in compliance when the
original charge was filed.8
Order
IT Is HEREBY ORDERED that the Board's Decision of May 1, 1951, be,
and it hereby is, amended by striking all of paragraph numbered 2
and substituting therefor the following :
2. The Trial Examiner found that Respondent unlawfully re-
fused to bargain collectively with the Union. However the
Union's claim to recognition as bargaining representative at
Respondent's plant was based upon an election held and a cer-
tification issued in a representation proceeding initiated by the
Union and conducted by the Board while the CIO, with which
the Union was and is affiliated, was not in compliance with the
filing requirements of the Act. Although this election and cer-
tification, which were invalidated by the decision of the United
States Supreme Court in N. L. R. B. v. Highland Park Manufac-
turing Company,4 have been restored to validity by legislative
amendment,5 Respondent may not now be held liable for its past
failure to "honor" them.' We hold that Respondent's refusal
to bargain in this case constituted a failure to honor the election
and certification; we have no alternative but to dismiss the com-
plainant's allegation of an unlawful refusal to bargain.?
R 341 IT. S 1.3,22 : see also N L . R B v. Clark Shoe Co ., 189 F. 2d 731 (C. A. 1).
5 The Taft -Humphrey Act, Public Law 189, Chap. 534 (82d Cong ., 1st Sess,),
par (a).
6 Ibid.
I The Advertiser Company, Inc ., 97 NLRB 604 , Union Bus Terminal of Dallas , Inc.,
97 NLRB 206.
IT IS FURTHER ORDERED that the Board's Order of May 1, 1951, be,
and it hereby is, amended by striking paragraph 1 (a), paragraph
2 (a), and the third and fourth paragraphs of Appendix A, and by
adding at the end of the Order the following paragraph :
N. L. R. B . v. Wester Boot & Shoe Co., 190 F. 2d 12 (C. A . 5) ; Cat hey Lumber Com-
pany, 86 NLRB 157 , enforced 185 F. 2d 1021 ( C. A. 5), enforcement rescinded on other
grounds, 189 F . 2d 428.
7N. L. R. B . v. Wester Boot & Shoe Co., 190 F. 2d 556 ( C. A. 5), denying petition for
rehearing in 190 F. 2d 12, supra; Ferro Stamping and Manufacturing Co., 93 NLRB 1459;
Nina Dye Works Co., 95 NLRB 824.
ON. L R. B. v. Whittenburg, 165 F . 2d 102 ( C. A. 5) ; West Texas Uttilities Co. v.
N. L. R. B ., 184 F. 2d 233 (C. A. D. C.), certiorari denied , 341 U. S. 939 ; I. B. S. Manu-
facturing Co, 96 NLRB 1263; Dant & Russell, Ltd., 95 NLRB 252
L. RONNEY & SONS FURNITURE MANUFACTURING CO . ' '891
IT IS FURTHER ORDERED that the complaint be, and it hereby is,
dismissed insofar as it alleges that Respondent refused to bar-
gain with the Union in violation of Section 8 (a) (5) and (1)
of the Act.
IT IS FURTHER ORDERED that Respondent's motion for reconsideration
be, and it hereby is, denied in all other respects.
MEMBERS MURDOcK and STYLES took no part in the consideration
of the above Order Amending Decision and Order.
L. RONNEY & SONS FURNITURE MANUFACTURING CO., A CO- PARTNER-
SHIP CONSISTING OF LEWIS RONNEY, LILLIAN RONNEY , SAM RONNEY,
AND MILTON RONNEY and SusiE CLINTON, LEWIS HARRISON, FLOR-
ENCE JOHNSON, HELEN MONTGOMERY, ZULA PIPKIN, MIKE SENDEJAS,
LUCILLE Sims, AND HAROLD J. SUSHAN and FURNITURE WORKERS
UNION, LOCAL No. 3161 OF THE UNITED BROTHERHOOD OF CARPENTERS
& JOINERS OF AMERICA, AFL, PARTY TO THE CONTRACT. Case No.
21-CA-403. December 29, 1951
Supplemental Decision and Amendment of Order'
On March 30, 1951, the Board issued its Decision and Order 1 in the
above-entitled matter, finding that the Respondent had engaged in and
was engaging in certain unfair labor practices, and ordering that it
cease and desist therefrom and take certain affirmative action, as set
forth therein. On its own motion, the Board has reconsidered its de-
cision in this proceeding, and hereby modifies and amends its Decision
and Order in the following respects :
1. In its Decision, the Board affirmed the Trial Examiner's conclu-
sion that the Respondent discriminatorily refused to rehire its former
employees because of their membership in Local 576. The Board
found, inter alia, that the Respondent thus discriminated against
Harold J. Sushan, one of the charging parties in this case. The rec-
ord, however, discloses that in January 1949 the Respondent called
Sushan back to the plant and offered to put him back to work, though
at a reduced rate of pay, corresponding to the rates which the Re-
spondent was then paying its employees. Sushan, who had learned of
another employment opportunity, did not give an immediate answer,
but requested a few days to think it over. When he returned a few
days later, the Respondent informed him that his job had already been
filled.
93 NLRB 1049.
97 NLRB No. 123.