The D. M. Bare Paper Co.

National Labor Relations Board - Board Decisions

Jun 30, 1952

99 N.L.R.B. 1487 (N.L.R.B. 1952)

INTERNATIONAL UNION OF OPERATING ENGINEERS, ETC. 1487
pressor to its members rather than to the Employer's own employees
who were members of other labor organizations.
We are not, however, by this action to be regarded as "assigning"
the air compressor work to members of any of the contract Unions."
Determination of Dispute
Upon the basis of the foregoing findings of fact, and upon the entire
record in this case, the Board makes the following determination of
dispute pursuant to Section 10 (k) of the amended Act:
1. International Union of Operating Engineers, Locals 17,17A, and,
17B, and Francis Cuffe, individually and as business agent for the said
Locals, are not, and have not been, lawfully entitled to force or require
Empire State Painting and Waterproofing Co., Inc., to assign air
compressor work to their members rather than to the Company's
employees who are members of another labor organization.
2. Within 10 days from the date of this Decision and Determination
of Dispute, the Respondents shall notify the Regional Director for the
Third Region, in writing, as to what steps the Respondents have taken
to comply with the terms of this Decision and Determination of
Dispute.
11 Los Angeles Building and Construction Trades Council, AFL (Westinghouse Electric
Corporation ), 83 NLRB 477.
THE D. M. BARE PAPER COMPANY and HUGH R. LOBB, PETITIONER and
UNITED PAPERWORKERS OF AMERICA, C. I. 0., AND Is LOCAL 415,
C. 1. 0. Case No. 6-UD 2. June 30) 1952
Decision and Order
Upon a petition duly filed under Section 9 (e) of the National Labor
Relations Act, a hearing was held before William A. McGowan, hear-
ing 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 employees
of the Employer.
3. On November 2, 1951, the Employer executed a 1-year collective
bargaining agreement with United Paperworkers of America, C. I. 0.,
' The request for oral argument by the Union is hereby denied, as the record and briefs,
in our opinion, adequately present the issues and positions of the parties.
99 NLRB No. 164.
1488 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and Local 415, with a 60-day automatic renewal clause in the absence,
of notice to change or terminate the agreement .2 This agreement con-
tained a clause requiring as a condition of continued employment that.
x.11 present and future employees become members of the Union imme-
diately following the 30th day after the effective date of the agreement.
or the beginning of their employment, whichever is later. The peti-
tion seeks an election to rescind the Union's authority to contract for
a. union-security clause.
Under Section 9 (e) (1), as recently amended,3 the Board is re-
quired to direct such an election where a petition requesting it is filed
with the Board "by 30 per centum or more of the employees in a bar-
gaining unit covered by an agreement between their employer and a
labor organization made pursuant to section 8 (a) (3)." The question
which arises in this case is whether the petition satisfies the statutory
requirement that the agreement covering the bargaining unit be "made
pursuant to section 8 (a) (3)" of the Act.
Section 8 (a) (3), as recently amended, sanctions a union-security
clause of the type here involved provided that, among other things,.
"at the time the agreement was made or within the preceding twelve
months [the contracting union] has received from the Board a notice
of compliance with section 9 (f), (g), and (h)" of the Act. Local
415, one of the contracting parties, was not in compliance with Section
9 (f), (g), and (h) of the Act either at the time of the execution of
the agreement or at any time during the preceding 12 months, and
had not come into compliance prior to the filing of the original petition
herein. It is obvious therefore that the union-security clause in this
case was not made pursuant to Section 8 (a) (3), and that one of the
necessary requirements for the direction of a deauthorization election,
as set forth in Section 9 (e) (1), has not been met. Not being in com-
pliance with Section 9 (f), (g), and (h), the Union could not law-
fully make the agreement; hence, in conformity with the clear language
of Section 9 (e) (1), there is no occasion for the Board to conduct an
election to ascertain whether the employees desire that "such authority
be rescinded."
This construction not only follows the plain and unambiguous lan-
guage of Section 9 (e) (1) but is also in accord with the intent of Con-
gress, as reflected in the legislative history which, to be sure, is meagre.
This history shows that the purpose of Section 9 (e) (1) was to saf e-
guard employees against subjection to loss of employment through an
2 Following a Board-directed election , the International was certified on August 28,
1951, as exclusive collective bargaining representative for all production and maintenance
employees at the Employer's Roaring Spring, Pennsylvania, paper plant, excluding office
and clerical employees, professional employees, guards, and supervisors , as defined in the
Act.
3 Public Law 189 , 82nd Congress , Clip. 534, 1st session , approved October 22, 1951.
THE D . M. BARE PAPER COMPANY 1489
enforceable or effective union-security clause by affording the em-
ployees a ready means by majority vote to rescind the authority to
enter into such an arrangement .4 Where, as in this case, the union-
security clause does not conform to the requirements of Section 8 (a)
(3), there is no enforceable or effective union-security clause in exist-
ence under which the employees may lawfully be subject to discharge or
against which they are to be safeguarded by a deauthorization election.
The remedies available under Section 8 (a) (2), 8 (a) (3), and 8 (b)
(2) would seem sufficient to correct the restraining effects of the "mere
existence" or the enforcement of the invalid union-security clause.
Nor is a different result called for by the mere fact that in this
case the union-security clause is defective only because of the Local's
noncompliance. Our dissenting colleagues would have to give the
same construction to the statute in the case of a complying union with
a union-security clause which exceeds the permissible limits of Section
8 (a) (3).
The suggestion that the result here reached places "a noncomplying
union in a better position than a complying union" does not bear
analysis. The dismissal of the petition in no way immunizes the
Union; on the contrary, it serves notice that the union-security clause
is illegal and hence may not be enforced. Moreover, it may be argued
with equal force that it is the construction arrived at in the dissenting
opinion which places a noncomplying union on a par with a complying
union. For should a majority vote against deauthorization, the non-
complying union will have the benefit of that vote as an argument in
support of its present illegal contract and in seeking to execute another
union-security clause.5
We therefore conclude that, as the requirements specified in Section
9 (e) (1) have not been met, we are not authorized to conduct a de-
authorization election. Accordingly, we shall dismiss the petition.
Order
IT IS HEREBY ORDERED that the petition filed herein be, and hereby is,
dismissed.
4 Report No. 646 of the Senate Committee on Labor and Public Welfare, to accompany
S. 1959, states "While discontinuing the mandatory election procedure, which had proved
expensive , burdensome, and unnecessary, the bill continues to safeguard employees against
subsections to union-shop agreements which a majority disapproves." [Emphasis supplied ]
See also, Report No. 1082 of the House Committee on Education and Labor which
contains an almost identical statement.
Congressional Record : House, October 9, 1951, page 13125: Mr. Springer of Illinois,
Republican, speaking in support of the amendment, "The bill continues to safeguard
employees against subjections to union-shop agreements which a majority disapproved
[Emphasis supplied ]
G Whether the vote be for or against union authorization, Section 9 (e) (1) merely
requires the Board to "certify the results thereof to such labor organization and to the
employer."
1490 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
CHAIRMAN HERZOG and MEMBER STYLES, dissenting :
This is a matter of first impression, calling for an interpretation of
u recent amendment to the Act. We disagree with the majority's.
holding that the instant petition should be dismissed because, due only
to the incumbent union's own noncompliance with Section 9 (h), there
is no legally enforceable union-security agreement in effect.
We believe that our colleagues' interpretation of Section 9 (e) (1)
of the Act, as amended in 1951, is much too literal, and leads to a result
wholly at variance with the real intent of Congress. As we read the
legislative history, we perceive a congressional desire to compensate
in part for the elimination of the earlier mandatory union-shop au-
thorization elections by retaining the safety valve of permissive deau-
Ihorization elections, to be conducted once 30 percent of the affected
employees manifest an initial desire to eliminate the union-security
provision. In amending the Act, Congress took such pains to make
certain that noncompliance would continue to invalidate a union-secu-
rity provision, that we cannot believe it also intended the paradoxical
result of having that very noncompliance destroy employees' oppor-
tunity to escape from the practical consequences of the presence of such
a provision.
This Board has repeatedly recognized the restraining effect inherent
in the mere existence of a union-security clause which fails to meet the
requirements of Section 8 (a) (3) of the Acts It is the restraint and
compulsion to which employees are subjected, whether by an enforce-
able or by an unenforceable union-security clause, against which Con-
gress sought to safeguard employees, by affording them this ready
means of escape through a deauthorization election. We see no logic
in our colleagues' construction of the 1951 amendment, which would
place a noncomplying union in a better position than a complying
union whenever a deauthorization election is sought. For the majority
would have directed such an election in this case if Local 415 had only
been in compliance. We would not permit that union to use its own
omission as a shield.
6 C Hager d Son8 Hinge Manufacturing Company, 80 NLRB 163, and cases following.
MONTGOMERY WARD AND COMPANY and INTERNATIONAL BROTHERHOOD
OF ELECTRICAL WORKERS, LOCAL UNION 1471, AFL, PETITIONER.
Case No. 17-RC-1333. June 30, 1959
Decision and Order
Upon a petition duly filed under Section 9 (c) of the National
Labor Relations Act, a hearing was held before Cyrus A. Slater,
99 NLRB No. 171.