Lyons Apparel, Inc.

National Labor Relations Board - Board Decisions

Jun 30, 1975

218 N.L.R.B. 1172 (N.L.R.B. 1975)

1172 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Lyons Apparel, Inc. and Retail Store Employees
Union, Local 1001, Retail Clerks International
Association, AFL-CIO. Case 19-CA-7525
June 30, 1975
DECISION AND ORDER
BY CHAIRMAN MURPHY AND MEMBERS
JENKINS AND KENNEDY
Upon a charge filed on January 23, 1975, by Retail
Store Employees Union,' Local 1001, Retail Clerks
International Association, AFL-CIO, herein called
the Union, and duly served on Lyons Apparel, Inc.,
herein called the Respondent, the General Counsel
of the National Labor Relations Board, by the
Regional Director for Region 19, issued a complaint
on February 18, 1975, against Respondent, alleging
that Respondent had engaged in and was engaging in
unfair labor practices affecting commerce within the
meaning of Section 8(a)(5) and (1) and Section 2(6)
and (7) of the National Labor Relations Act, as
amended. Copies of the charge, complaint, and
notice of hearing before an Administrative Law
Judge were duly served on the -parties to this
proceeding.
With respect to the unfair labor practices, the
complaint alleges in substance that at all times
material herein the Union has been the representa-
tive for the purposes of ' collective bargaining of
employees in the appropriate unit,l that Respondent
and the Union have been parties to a collective-
bargaining agreement effective from July 1, 1972, to
June 1, 1975, that the aforesaid contract contains a
valid union-security clause requiring all new employ-
ees to become members of the,Union 31 days from
the date of their employment as a condition of
employment, that since November 27, 1974, Respon-
dent has refused to comply with the provisions of the
union-security clause by rejecting the demand of the
Union to discharge employees Suzanne Warwick and
Tina Anne Wandganz, and that by the aforesaid
conduct Respondent has violated Section 8(a)(5) and
(1) and Section 2(6) and (7) of the Act. Respondent
filed an answer to the complaint on February 25,
1975, admitting the Union's status as collective-
bargaining representative, and the existence of a
collective-bargaining agreement, but asserting that
the union-security clause in the contract was abro-
gated on November 20, 1974, as the result of an
election conducted by the Board in Case 19-UD-
116, that the union-security clause had not become
operative as to employees Warwick and Wandganz
1 The appropriate unit comprises-
All persons engaged in selling at Respondent's Northgate Mall store,
218 NLRB No. 177
before November 20, 1974, and that Respondent
therefore lawfully refused to comply with the
Union's demand for the discharge of these two
employees.
On February 27, 1974, Respondent filed motions
for transfer, consolidation, and for summary judg-
ment with an accompanying memorandum in sup-
port of the motions. On March 13, 1975, the Board
issued an order transferring the proceeding to the
Board and a Notice To Show Cause why Respon-
dent's motions should not be granted. On March 27,
1975,, and April 1, 1975, respectively, the Union and
the General Counsel filed cross-motions for summa-
ryjudgment.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
Ruling on the Motions for Summary
Judgment
During the relevant period, the Union was the
collective-bargaining representative of the sales
personnel in Respondent's Northgate Mall store. The
collective-bargaining agreement between the Union
and Respondent effective from July 1, 1972, to June
1, 1975, contained a valid union-security clause
requiring new employees to join the Union within 31
days of their employment with Respondent, and
obligating Respondent to terminate any such new
employee who failed to secure membership in the
Union as required by the security clause.
On October 18, 1974, an employee filed a petition
in Case 19-UD-116 seeking rescission of union-shop
authority pursuant to Section 9(e)(1) of the Act. On
October 23, 1974, Respondent hired employee Tina
Anne Wandganz. On October 28, 1974, it hired
employee Suzanne Warwick. On October 31, 1974,
the Regional Director directed an election in Case
19-UD-116. The election was held on November 20,
1974, with three of the four eligible voters voting in
favor of deauthorization. On November 21 and 22,
1974, the Union notified Wandganz and Warwick,
respectively, that they were obligated to join the
Union not later than November 23 and 27, 1974,
respectively, and to pay an initiation fee of $50 and
first month's dues of $8 for the month of November,
for a total of $58. On November 25, 1974, the Union
filed timely objections to the election. On the two
following days, the Union requested Respondent to
terminate Wandganz and Warwick for failure to
excluding office clerical employees , professional employees , guards,
and supervisors as defined in the Act.
LYONS APPAREL, INC. 1173
comply with the requirements of the union-security
clause. Respondent refused the requests.
On April 18, 1975, the Board issued its decision
overruling the Union's objections to the election held
on November 20, 1974, and certifying that a majority
of the employees eligible to vote had voted to
withdraw the Union's authority to require, under its
agreement with the Respondent, that membership in
the Union be a condition of employment.
The issue raised by the pleadings and the motions
for summary judgment is whether Respondent
violated Section 8(a)(5) and 8(d) of the Act by its
refusal to meet the Union's demand for the termina-
tion of Wandganz and Warwick because of their
failure to comply with the contract union-security
provision.
The General Counsel and the Union contend that
a deauthorization vote does not become effective
until the results of the election are certified by the
Board, citing two cases-Monsanto Chemical Compa-
ny, l47 NLRB 49 (1964), and Bedford Can Manufac-
turing Corp., 162 NLRB 1428 (1967). Respondent
urges that the Board enunciate a rule making the
date of deauthorization vote rather than the date of
certification of results the determinative date for
terminating a union-security clause.
Monsanto Chemical involved a petition for a UD
election. The Union objected to the election upon the
ground that such an election was inappropriate
because the contract contained an agency-shop
rather than a union-shop agreement. The Board
rejected this contention. The Union further contend-
ed that the Board should hold that an affirmative
deauthorization vote deprived the Union of authority
to make future union-shop agreements and did not
affect the existing agency-shop clause. The Board
rejected this argument and directed an immediate
election stating:
Accordingly, if the employees in this proceeding
cast an affirmative deauthorization vote, it shall
be taken to mean that the effectiveness of the
agency-shop provisions in the contract between
the Union and the Employer shall be suspended
immediately upon certification to the Union and
the Employer of the results of the election.
Bedford Can Manufacturing involved a complaint
that the respondent employer had violated Section
8(a)(2) and (1) of the Act by continuing to deduct
union membership dues under employee checkoff
authorizations after revocation of such checkoffs and
membership resignations following a union deau-
thorization vote. In that case, a deauthorization
election had been held on October 13 and a
certification of results issued on October 21. On the
latter date, employees canceled their checkoff au-
thorizations. The Board upheld the validity of the
cancellations. By way of dictum in a footnote (fn. 2),
the Board said:
Since a contract union-security provision is not
fully suspended until the affirmative result of the
deauthorization election is certified by the Re-
gional Director, the employee who signed his
authorization [for checkoff] after the election but
prior to the certification was still subject to such
provision . [Emphasis supplied.]
It is obvious that neither case deals with the present
situation, i.e., whether a labor organization can
require a new employee , after employees have voted
to rescind a union-security clause , to pay initiation
fees and monthly membership dues pursuant thereto
during the pendency of the union 's objections to the
deauthorization election . In the present case, almost
5 months elapsed between the date of the deauthori-
zation election and the certification of results. It
would be unconscionable to permit the Union to
exact from new employees initiation fees and dues
during a period when primafacie the employees have
withdrawn the Union 's right to a union-security
clause. If the General Counsel 's and Union's position
were accepted , a union could , by filing objections to
a deauthorization election, delay the issuance of a
certification of results and thus enrich itself during
the interval at the expense of employees. We hold
that a union may not require a new employee to join
and pay initiation fees and dues during the period
between the affirmative deauthorization vote and the
certification of the results of the election.
Accordingly , we hereby grant Respondent's mot-
ion for summary judgment and find that Respondent
did not violate Section 8(a)(5) and (1) of the Act by
rejecting the Union's demand for the discharge of
employees Warwick and Wandganz . We shall there-
fore dismiss the complaint.
CONCLUSIONS OF LAW
1. Respondent, Lyons Apparel, Inc., is an em-
ployer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
2. Retail Store Employees Union, Local 1001,
Retail Clerks International Association, AFL-CIO,
is a labor organization within the meaning of Section
2(5) of the Act.
3. Respondent has not violated Section 8(a)(5)
and (1) of the Act by rejecting the Union's demand
for the discharge of employees Suzanne Warwick
and Tina Anne Wandganz.
1174 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ORDER
It is hereby ordered that the complaint against
Respondent , Lyons Apparel, Inc., Seattle, Washing-
ton, be, and it hereby is, dismissed in its entirety.