Regal Shoe Co.

National Labor Relations Board - Board Decisions

Aug 28, 1953

106 N.L.R.B. 1078 (N.L.R.B. 1953)

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