Regal Shoe Co.Download PDFNational Labor Relations Board - Board DecisionsAug 28, 1953106 N.L.R.B. 1078 (N.L.R.B. 1953) Copy Citation 1078 DECISIONS OF NATIONAL LABOR RELATIONS BOARD skills and clear opportunities to use the same on any com- prehensive scale, we find that the small units proposed by the Petitioner are inappropriate at this time.' We therefore dis- miss the petition. 8 [The Board dismissed the petition.] z Hyster Company, 106 NLRB No. 60. 3In view of our dismissal of the petition, we find it unnecessary to pass upon the contract- bar issue. Because the record and the briefs clearly set forth the positions of the parties, the request for oral argument is denied. REGAL SHOE COMPANY and RETAIL CLERKS INTERNA- TIONAL ASSOCIATION, AFL, Petitioner. Case No. 1-RC- 3148. August 28, 1953 DECISION AND ORDER Upon a petition duly filed under Section 9 (c) of the National Labor Relations Act, hearings were held before Leo J. Halloran , hearing officer . The hearing officer ' s rulings made at the hearings 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 certain employees of the Employer. 3. No question affecting commerce exists concerning the representation 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 173, New England Joint Board, CIO-R.W.D.S.U., herein called the Intervenor, contends that its current con- tract with the Employer constitutes a bar to this proceeding. Without pointing to any defect in the contract, the Petitioner opposes the bar contention. The Employer takes no position. The Employer and the Intervenor have maintained successive collective-bargaining agreements since 1937. Their last con- tract, now in effect, was executed on April 27, 1951. It has been continued since in accordance with its automatic annual renewal clause. As written, the contract contains a union- security clause reading as follows: Paragraph 2. The Company agrees that all present employees affected by the terms of the agreement shall, as a condition of employment, be members of the Union in good standing. Any new employee shall join the Union upon the expiration of his 30-day trial period. 106 NLRB No 165. REGAL SHOE COMPANY 1079 The Intervenor claims that this clause was deleted from the contract on May 22, 1951, by oral ( telephone ) agreement between the Employer ' s attorney and the Intervenor's vice president , and by a letter setting out a substitute clause and mailed by the Intervenor to the Employer . No answer was received , and the Intervenor argues that , as the letter pro- vided that failure to respond would signify acceptance, the contract was modified accordingly . However , the Employer's attorney testified that he had no recollection of such oral agreement or confirming letter , and that a thorough search of his files and the files of the Employer failed to produce an original letter . Under the circumstances , we find that the evidence is not sufficient to establish that the original con- tract was amended , even assuming , arguendo , that the terms of the written agreement could be legally changed by the unorthodox method asserted by the Intervenor . We shall therefore consider only the agreement as written to assess its contract -bar effect. Considered alone , the union - security clause in the original agreement would appear to extend the limits of union-security permitted by the proviso to Section 8 (a) (3) of the Act, because it does not explicitly allow to employees who were not members of the Intervenor when the contract was executed the 30-day statutory period in which to join. ' In its brief to the Board after the close of the first hearing, the Intervenor asserted that this union-security clause is nevertheless lawful because all employees were dues-paying members when the contract was made, and therefore there was no need to refer to any nonexisting category .' It offered to prove the then good standing in the Intervenor of all employees . For the purpose, among others , of affording the Intervenor an opportunity to introduce such evidence , the case was remanded to the Regional Director for further hearing. At the reopened hearing the Intervenor proved that of the 10 employees on the payroll on April 27, 1951, the effective date of the contract , 9 had paid their dues in full up to and including the month of April 1951, and the 10th, Jacobellis, was paid up through March 30 It does not appear that Jacobellis paid any dues after March, but the record does show that she left the job after the contract was made. As the Intervenor ' s representative testified that no union records are kept after employees have been separated 2 years, it may well be that Jacobellis left her employment shortly after April 27, 1951. 'Archer- Daniels- Midland Company, 97 NLRB 647. 2 The Intervenor relied on Charles A . Krause Milling Company, 97 NLRB 536, which holds that a grace period need not be accorded to an old employee who already was a member of the union on the effective date of the contract. 3The paid- up status of eight employees was evidenced by their permanent dues sheets, a separate one for each employee, maintained in the Intervenor 's office. The March and April payments for the 9th and the March payment for the 10th employee appeared on peri- odical dues reports of the shop steward , also kept in the Intervenor 's records. 1080 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On these facts, and on the record as a whole, we are satisfied that all employees in the unit were members of the Intervenor when the current contract was made. Our finding that Jacobellis was also in good standing in the Intervenor on April 27, 1951, rests on the fact that she had duly paid her March dues, that no claim is made, and the record in no way indicates that she resigned or was expelled from the Inter- venor during the first 27 days of the following month, and that when the contract was made 30 days had not yet passed fromthe earliest possible due date of her April dues.4 Quite apart, however, from the fact that on this record, the contract here considered could not have been discriminatorily applied to old employees, the case presents a general con- tention that a collective-bargaining contract is not a bar to a rival petition if it should appear that not every one of its provisions complies in all technical respects with the strictest requirements of legality. We do not accept this contention. 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. Absent the rule, labor contracts would tend to become meaningless and employers, unions, and the Board itself would be subject to almost continuous harassment by raiding unions. It would defeat the purpose of that rule if we should attempt to apply the same strict yard- stick in representation cases as we should , and indeed as the statute requires us to do, in an unfair labor practice proceed- ing directly involving the validity of a union-security provi- sion. The language of the Supreme Court in Rockaway News, Inc. v. N. L. R. B.5 is particularly appropriate to the applica- tion of our contract-bar principle. There, in another context, the Court said: It is one thing for the Board to say that the parties should not go under such a contract (one including an illegal union-security clause). It is another to say no effect whatever may be given a contract negotiated in good faith by the union and the employer which both believed to be valid and operative, to which both were conforming their conduct, and which no authority had yet held void. We are not considering the case of an individual or group of employees who claim that an illegal provision was unlaw- fully used to deprive them of employment. Here we only have to determine whether we should set aside the contract as a 4 The record does not show either the day of the month when dues are payable or the period allowed by the Intervenor's regulations for payment of dues. 5 345 U S. 71. ESSO STANDARD OIL, LOUISIANA DIVISION 1081 bar in order that the petitioning Union can obtain an immediate election rather than await the contract ' s annual renewal date. The Petitioner seeks to avoid the contract -bar rule without even so much as pointing to any specific defect in the con- tract . In our review of the contract , however, we have dis- covered a possible deficiency in the language of the union-shop clause; specifically , it does not , in explicit terms, grant all employees who were not union members when the contract was written the 30-day statutory period in which to join. It now appears , upon remand , that there were no nonmembers when the contract was written , and therefore , the deficiency is a purely academic one. But we need not in this type of proceeding determine the validity of the contract with the same judicial preciseness as if this were the - case of an employee claiming that he had not been accorded his statutory rights under the union-shop clause . We need only decide that 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 circumvent the operation of our contract -ba.r rule on this technical and legalistic ground. Accordingly , we find that the Intervenor ' s current contract constitutes a bar to a present determination of representa- tives .6 We shall therefore dismiss the petition. [The Board dismissed the petition.] Members Murdock and Rodgers took no part inthe considera- tion of the above Decision and Order. 6 To the extent that our decision herein is inconsistent with the holding in Hess, Goldsmith and Co., Atwater Division, 101 NLRB 1009, that decision is hereby overruled. ESSO STANDARD OIL, LOUISIANA DIVISION and UNITED ASSOCIATION OF JOURNEYMEN & APPRENTICES OF THE PLUMBING & PIPE FITTING INDUSTRY OF THE UNITED STATES AND CANADA, AFL, Petitoner . Case No. 15-RC- 958. August 28, 1953 DECISION AND ORDER Upon a petition duly filed under Section 9 (c) of the National Labor Relations Act, a hearing was held before William W. Fox, hearing officer . The hearing officer ' s rulings made at the hearing are free from prejudicial error and are hereby affirmed. 106 NLRB No. 169 Copy with citationCopy as parenthetical citation