A. Sandler Co.

National Labor Relations Board - Board Decisions

Nov 3, 1954

110 N.L.R.B. 738 (N.L.R.B. 1954)

738 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
A. SANDLER Co. and JAMES A. MURPHY, PETITIONER and LOCAL 504,
GENERAL WAREHOUSEMEN , SHIPPERS , PACKERS, RECEIVERS , STOCK-
MEN, CHAUFFEURS & HELPERS, INTERNATIONAL BROTHERHOOD OF
TEAMSTERS , CHAUFFEURS, WAREHOUSEMEN & HELPERS OF AMERICA,
AFL. Case No. 1-RD-164. November 3, 1954
Decision and Order
Upon a petition duly filed under Section 9 (c) of the National
Labor Relations Act, a hearing was held before M. Alice Fountain,
hearing officer. The hearing officer's rulings made at the hearing are
free from prejudicial error and are hereby affirmed.
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 certain em-
ployees of the Employer.
3. No question affecting commerce exists concerning the representa-
tion of 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:
Local 504, General Warehousemen, Shippers, Packers, Receivers,
Stockmen, Chauffeurs & Helpers, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen & Helpers of America, AFL,
herein called the Union, contends that an existing collective-bargain-
ing contract is a bar to this decertification proceeding. The Petitioner
contends that the contract is not a bar because it contains an unlawful
union-security provision. The Employer is neutral.
Following certification by the Board in 1951, the Union and the
Employer entered into a collective-bargaining agreement effective
from May 1, 1951, to April 30, 1953. In 1953, the contracting parties
amended their agreement and extended its term to April 30, 1955.
The 1951 contract contains the following union-security clause :
All employees who are members of the UNION shall remain
members of the UNION as a condition of employment. All em-
ployees who are not members, of the UNION-shall promptly be-
come members of the UNION. All persons newly hired for jobs
covered by this agreement shall join the UNION on the 61st
working day following the beginning of his such employment.
[Emphasis supplied.]
The Petitioner asserts that because the contract provides that existing
employees who are not members of the Union shall promptly become
such members, the clause is unlawful and the agreement therefore
should not be held a bar.
110 NLRB No. 116. -
A. SANDLER CO. 739
The Petitioner relies upon the fact that about 3 years ago, several
of the employees may have been exposed for a limited 30-day period
of time to the coercive effect of a contract which did not expressly
grant them 30 days in which to join the Union as required by the
proviso to Section 8 (a) (3). There is no indication that any of these
employees were required to become a member of the Union during
that period, or that there was any discrimination practiced against
a single employee under the contract.
We are not in this case concerned with a charge of unfair labor
practices involving the protection of employee rights. We are called
upon only to determine whether or not an election is appropriate at
this time. This is an entirely different problem which requires us to
consider other and equally pertinent objectives of the statute, not the
least of which is that of fostering stability and discouraging labor
turmoil and unrest. Specifically, we must decide whether we will
brush aside an existing contract between an employer and a bona fide
union, under which the parties have achieved satisfactory and stable
labor relations, and entertain a petition for a mid-contract election
solely because of a technical omission in contract language, which,
insofar as the record shows, has not resulted in harm to a single
employee.
Our contract-bar principle was devised and has long been applied
in election cases as a purely administrative rule having as its salutary
purpose safeguarding and fostering stability of labor relations. A
petitioner-seeking to disturb a peaceful and harmonious relationship
under an existing contract which the employer and the contracting
union are living under in good faith-should not be permitted to cir-
cumvent the operation of our contract-bar rule on the technical and
legalistic ground urged by this Petitioner.' Accordingly, we find
that, as the current contract between the Employer and the Union
will not expire until 1955, it is a bar to the present petition. We shall
therefore dismiss the petition.
[The Board dismissed the petition.]
`MEMBER MURDOCK, concurring :
I concur in the result reached by the Chairman and Member Beeson
in finding the Union's contract to be a bar to the petition. I do not
adopt their reasoning to the extent that their opinion suggests that the
Board should appraise the legality of a union-security clause differ-
ently in a representation proceeding on a contract-bar issue than in an
unfair labor practice proceeding. Such an approach would be con-
trary to that taken by the Board since it first held a contract containing
an illegal union-security clause should not be recognized as a bar.2 The
2 Regal Shoe Company, 106 NLRB 1078.
2 Hager-Hinge, 80 NLRB 163.
740 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
only consideration has been whether the clause is legal or illegal-not
whether the issue arises in a representation or an unfair labor prac-
tice case.
I find this contract to be a bar because I view the union-security
clause as not illegal despite the technical omission specifically to pro-
vide a 30-day period for old employees to join the union, following
the Board's recent decision in the Whyte case 3 and the decision of the
Court of Appeals for the Third Circuit in the UE case 4 As the Board
in the Whyte complaint case and the court pointed out, while this
30-day joining period must be read into every contract, the failure
expressly to set out this temporary transitional period does not oper-
ate to invalidate the entire union-security clause; that collective-bar-
gaining agreements should not be so strictly and technically construed.
By the same token I do not believe that the provision that old em-
ployees who are nonmembers shall join "promptly" was intended or
should be construed as imposing an obligation to join in less time than
the 30 days provided by the statute.' In line with the decisions in the
Whyte case and UE case, I find that this contract exhibits substantial
compliance with the statute. As it will not expire until 1955 it is a
bar to the present petition.
MEMBER DODGERS, dissenting :
I would direct an election in this case.
The contract between the Employer and the Union, which my col-
leagues find a bar to an election, contains the following unlawful
union-security provision :
All employees who are members of the UNION shall remain mem-
bers of the UNION as a condition of employment. All employ-
ees who are not members of the UNION shall promptly become
members of the UNION. All persons newly hired for jobs cov-
ered by this agreement shall join the UNION on the 61st working
day following the beginning of his such employment.
This provision is manifestly unlawful on its face in that it does not
allow the required 30-day statutory grace period to those employees
who, on the effective day of the agreement, were not members of the
Union.'
S Whyte Manufacturing Company, Inc., 109 NLRB 1125.
* N. L. R B. v. United Electrical, Radio and Machine Workers of America, Local 622
(UE), 203 F 2d 673._
6 The Employer 's brief states without challenge that all employees except probationers
were in fact union members at the beginning of the new contract period. There is no
indication that any of the latter were required to become members of the union within 30
days of its effective date.
6 The first proviso to Section 8 (a) (3) of the Act permits an employer and a union
only to agree " to require as a condition of employment membership [ in the union] on or
after the thirtieth day following the beginning of employment or the effective date of
such agreement, whichever is the later. . . .
ANTLE CARROTS, INC. 741
In my recent dissenting opinion in the Whyte case,' I pointed out
that the mere existence of a clause like the instant one serves as a
potent instrument of coercion to individual employees, who are, after
all, the primary beneficiaries of the Act. And I further pointed out
that this Board undercuts the important congressional policy against
the closed shop, by recognizing as valid union-security provisions
which do not conform to the statutory standard. The reasons, that
compelled my dissent in the Whyte case also compel me now to say
that the Board should not give its approval to the clause in this case
by finding a contract bar to exist.
The issue here does not turn, as my colleagues imply, on whether
there has been a showing of actual discrimination against employees.
Indeed, the record affirmatively shows that when the contract was
signed, none of the Employer's employees was a union member.8 Nor
is the issue disposed of by saying, as my colleagues say, that we are
not here concerned with a charge of unfair labor practices involving
the protection of employee rights. As a practical matter, unfair
labor practice charges are not likely to be filed unless an unlawful
union-security clause is actually enforced by discharge or other
penalty. Meanwhile, the restraint against employees embodied in
this contract is allowed to continue. By the majority decision herein,
unions and employers are encouraged to execute illegal union-security
provisions, for they are assured that their unlawful action, though
ground for a possible unfair labor practice case, will be otherwise
overlooked and condoned. Neither the specific language of the
statute nor the legal rights of the individual employee should be so
lightly brushed aside.
MEMBER PETERSON took no part in the consideration of the above
Decision and Order.
7 Whyte Manufacturing Co., 109 NLRB 1125.
8 Cf. Regal Shoe Company, 106 NLRB 1078.
ANTLE CARROTS, INC. and UNITED PACKINGHOUSE WORKERS OF AMER-
ICA, LOCAL 78, CIO, PETITIONER . Case No. 2O-RC-21592. Novem-
ber 3, 1954
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 LaFayette D.
Mathews, Jr., hearing officer. The hearing officer's rulings made at
the hearing are free from prejudicial error and are hereby affirmed.
Upon the entire record in this case, the Board finds :
110 NLRB No. 115.