Hughs-Vertin Lime Co.

National Labor Relations Board - Board Decisions

Apr 17, 1953

104 N.L.R.B. 185 (N.L.R.B. 1953)

HUGHES-VERTIN LIME COMPANY 185
APPENDIX A
Frances Avery Hazel Judge Max Cherny Clara Lusk
Mildred L. Carter Joyce Kendrick Jewell Cox Ruby A Martin
Ollie Chambers Virgie Mahan Mary Durham Helen Morgan
Ruth Crabtree Ona Mason Winme Lu Gaither Dorothy Poe
Florine Fitzgerald Imogene Parsons Lucille Gossett Martha Short
Dorothea Garren Stena Ransom Gertrude Guffee James A. Smith
Nellie V . Green Virginia Vitatoe Elizabeth Hart Edna Vandergriff
Mary Gunter Lena Brock Dorothy Headrick Bertha Tilley
George Hayes Cynthia Chambers Geneva Kelly Nellie Clark
HUGHES-VERTIN LIME COMPANY and UNITED CEMENT,
LIME AND GYPSUM WORKERS INTERNATIONAL UNION,
AFL, Petitioner. Case No. 20-RC-2056. April 17, 1953
DECISION AND ORDER
Upon a petition duly-filed under Section 9 (c) of the National
Labor Relations Act, a hearing was held before Clement W.
Miller, 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 organizations involved claim to represent em-
ployees of the Employer.
3. No question affecting commerce exists concerning the
representation of employees of the Employer within the mean-
ing of Section 9 (c) (1) and Section 2 (6) and (7) of the Act, for
the following reasons:
The Employer and Tri-Counties Building and Construction
Trades Council, AFL, the Intervenor, assert that their current
contract is a bar to this proceeding. The Petitioner contends
that the contract, which contains a union-security clause, is
not a bar because the Intervenor was not in compliance on the
operative, or Mill-B, i date of the contract's automatic renewal
clause, nor at the time the Petitioner requested recognition.
After a Board-directed election, 2 the Intervenor was certified
on July 30, 1951, as the bargaining representative of the Em-
ployer's production and maintenance employees. On January 25,
1952, the Employer and the Intervenor executed the union-shop
contract sasserted herein as a bar, effective January 1, 1952,
for a 1-year period, with annual automatic renewal thereafter,
absent written notice by either party of its desire to change the
agreement at least 60 days before any anniversary date.
i See Mill-B, Inc.. 40 NLRB 346.
2 Case No . 20-RC-1355 (not reported in printed volumes of Board decisions).
3 Article III of the contract provides:
Section 1 . Membership in the Union shall be required as a condition of employment on
and after the thirtieth ( 30th) day following the beginning of such employment or transfer
into the bargaining unit, or the effective date of this Agreement , whichever is the later.
104 NLRB No. 20.
186 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Neither party served such notice before November 1, 1952, the
initial Mill-B date , and the contract was automatically renewed
for an additional term of 1 year, commencing January 1, 1953.
On November 18, 1952, the Petitioner wrote the Employer
requesting recognition as bargaining representative of the
production and maintenance employees . On November 20, 1952,
almost 3 weeks after the Mill-B date, it filed the instant
petition , seeking these employees.
r The `administrative records of the Board disclose that the
Intervenor received its last notice of compliance with Section
9 (f), (g), and (h) on March 5, 1951 , indicating that it would be
in compliance with Section 9 (f) and ( g) until December 31, 1951,
and 9 (h) until July 31, 1951. Upon refiling the affidavits required
under Section 9 (h), the Intervenor remained infull compliance
until December 31 , 1951 , several weeks before the contract was
executed and 1 day before its effective date. It did not achieve
compliance again until December 8 , 1952, after the petition
herein was filed and after the contract had been automatically
renewed, but before the effective date of the second yearly
term of the agreement.
Section 8 ( a) (3) of the Act, as amended in 1951,4 permits
an employer and ' a labor organization to execute a union-shop
agreement if, among other things, the labor organization "has
at the time the agreement was made or within the preceding
twelve months received from the Board a notice of compliance
with sections 9 (f), (g), (h),..." The Senate report accompany-
ing S . 1959, the bill that accomplished this recent legislation,
described the purpose of this amendment as follows:'
The bill provides, however, that a labor organization
shall not be authorized to conclude a union shop agree-
ment unless, within the preceding 12-month period, it
has received notice from the Board that it is in full
compliance with Section 9 (f), (g), and (h), so that, at the
time the union shop agreement becomes effective, the
union is eligible to invoke the Board's processes under
Section 9 (f), (g), and (h). (Emphasis supplied.)
The Petitioner' s contention that the union-security clause is
invalid, and the contract therefore is no bar, rests upon the
fact that the Intervenor was not in compliance with Section 9 (f),
(g), and (h) on the Mill-B date, or on the date the Petitioner
requested recognition. We find no merit in this contention. We
believe that the legislative history indicates that Congress
intended merely to require compliance at the time a union-shop
agreement becomes effective. However, unlike our dissenting
colleagues, we find it unnecessary in this case to determine
the compliance status of the Intervenor at the time the contract
was first executed. In our view, it is sufficient that the contract-
ing union was in full compliance with Section 9 (f), (g), and (h)
4Public Law 189, 82nd Congress . 1st Session, approved October 22, 1951.
'Senate Report No. 646, 82ndCongress , lstSession ,1951 . See, also , for a similar statement
of legislative intent , House of Representatives Report No . 1082, 82nd Congress, 1st Session,
1951.
HUGHES-VERTIN LIME COMPANY 187
on January 1, 1953, the date the contract as automatically re-
newed became effective. We therefore find that the union-
security provision involved herein is not invalid.6
As the petition herein was untimely filed, we find that the
existing contract constitutes a bar to this proceeding. Accord-
ingly, we shall dismiss the petition.
ORDER
IT IS HEREBY ORDERED that the petition filed herein be,
and it hereby is, dismissed.
Chairman Herzog and Member Peterson, dissenting:
We would find this contract no bar because the union-security
provision was unlawful from its inception, due to the failure of
the contracting union to meet the full requirements of Section 8
(a) (3) as amended in 1951. These include the requirement that
the union shall have received a notice of compliance from the
Board "at the time the agreement was made or within the
preceding twelve months." (Emphasis supplied.) In our view the
Intervenor was required to have been in compliance at the time
the agreement was made or to have received a notice of
compliance within the preceding 12 months, which notice had not
expired at the time the agreement was made.? Accordingly, as
the Intervenor was not in compliance on November 1, 1952, the
date when the agreement urged as a bar here was made, we
believe that its belated compliance thereafter did not serve to
cure the invalidity of the union-security provision. We would
therefore direct an election in the agreed-upon production and
maintenance unit.
6See Williams Laundry Company , 97 NLRB 995 . Cf. Northwest Magnesite Company, 101
NLRB 85.
7 Although the Intervenor had received from the Board a notice of compliance with Section
9 (f), (g), and (h) within the 12-month period before the contract•was made, that notice stated
that the compliance would expire on December 31, 1951 , months before the contract was re-
newed . We believe that an expired compliance notice is inLsufficienttto,satisfy the requirements
of Section 8 (a) (3), and that Congress intended to require full compliance with 9 ( f), (g), and (h)
at the time of entering into any union-security agreement . This conclusion is supported by the
legislative history cited in the majority decision . It is apparent that in requiring a notice of
compliance "at the time the agreement was made or within the preceding twelve months,"
Congress had in mind the fact that Section 9 (g) and (h) contains provisions that require refiling
of all data and affidavits on an annual , and hence presumptively on a continuing , basis.
During the course of Senate consideration of S. 1959, proposing the amendments with which
we are here concerned , Senator Mundt inquired whether the bill would make it easier for unions
to meet the requirements for executing union- shop agreements without their officers executing
non-Communist affidavits . Senator Humphrey, one of the sponsors of the amendments , replied:
It does not. The non-Communist oath or affidavit requirement is a part of the Taft-
Hartley law which must be abided by ; and this measure would not in any way affect the
necessity and legal obligation of every union official to sign the non-Communist a ffidavit.
(Emphasis supplied.)
(Congressional Record , Senate , August 21 , 1951, p. 10674.)