Supreme Sunrise Food Exchange, Inc.

National Labor Relations Board - Board DecisionsJun 30, 1953

105 N.L.R.B. 918 (N.L.R.B. 1953)

9 18 DECISIONS OF NATIONAL LABOR RELATIONS BOARD SUPREME SUNRISE FOOD EXCHANGE, INC. and RETAIL FOOD CLERKS' UNION, LOCAL 1500 , RETAIL CLERKS' INTERNATIONAL ASSOCIATION, AFL, Petitioner. Case No. 2-RC- 5439. June 30, 1953 DECISION AND ORDER Upon a petition duly filed under Section 9 (c) of the National Labor Relations Act, a hearing was held before Norman A. Cole, 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 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: A current contract between the Employer and Amalgamated Meat Cutters and- Butcher Workmen of North America, Local 342, AFL, herein called the Intervenor, is alleged as a bar to this proceeding. On December 12, 1952, the expiration date of their previously existing 1-year contract, the Employer and the Intervenor executed a new contract , effective until December 12, 1955, with provision for automatic renewal. On December 15, 1952, the Petitioner first made its claim upon the Employer for recognition as the majority representa- tive of the employees in question; and on December 16, 1952, it filed the petition herein. It is clear, and we find, that the claim and the petition were untimely to forestall the operation of the new contract as a bar. The Petitioner objects to the contract on the ground that its 3-year term is of unreasonable duration. On this question, the Board's policy has been to regard as reasonable a con- tract term in excess of 2 years, if such contracts are estab- lished as customary in the industry.' The sole evidence with respect to the custom in the retail meat-marketing industry was introduced by the Intervenor to show that it had, of relatively recent date, entered into several contracts with other companies providing for a 3-year term. We find this evidence insufficient to establish a custom in the industry. However, absent such a custom, the instant contract is never- theless effective to bar a representation petition during the first 2 years of its existence.2 'See, e.g., Reed Roller Bit Company, 72 NLRB 927; General Motors Corporation, Detroit Transmission Division, 102 NLRB 1140. 2See American Seating Company, 98 NLRB 800 105 NLRB No. 138 SUPREME SUNRISE FOOD EXCI IANGE, INC. 919 The Petitioner contends further that the contract is defective on the ground that it contains certain clauses which are improper and discriminatory. The challenged clauses are considered below: Article 1, in which the Employer recognizes the Intervenor as exclusive bargaining agent for all the employees in question, provides in pertinent part that the Employer-- agrees to meet only with the proper accredited officers and committees of the Union, on all grievances, com- plaints, disputes, and adjustments that may arise between the employer and the Union. The Petitioner argues that this clause deprives individuals of the right, under the proviso to Section 9 (a) of the Act, "to present grievances to their employer, and to have such grievances adjusted, without the intervention of the bargaining representative...." It does not appear to us that the clause on its face purports to abridge in any way this right of employees under the Act. The clause, as we read it, has refer- ence, among other things, only to those grievances "that may arise between the employer and the Union." Article 5 provides in part: All employees shall be paid for the following holidays for which they are not required to do any work: New Year's Day, Memorial Day, Fourth of July, Labor Day, Thanksgiving Day, Christmas Day. (a) The basic work week for holiday weeks that contain the holidays hereinabove mentioned, shall be 36 hours. (c) Union members shall work until 12:30 P. M. on Columbus Day, Armistice Day, and Election Day. (d) The basic work week for these half-day holidays shall be 402 hours. Article 7 provides in part: No member of the Union shall be discharged without just cause. Article 13 provides in part: No employee shall be required to cross any picket line. (a) The Union and its members may participate in all Union activities, strikes and boycotts as may be permitted by existing regulations, or any of its [sic] decisions or amendments. Article 17 provides in part: Any member of the Union who shall, at the discretion of the arbitrator, be required to testify at or attend any hearings or arbitration mediation or the settlement of 291555 0 - 54 - 59 920 DECISIONS OF NATIONAL LABOR RELATIONS BOARD any question of violations of this contract, shall not suffer any loss in wages by reason thereof. (Jnderscoring supplied.) The above clauses, the Petitioner contends, discriminate against employees who are not "members of the Union." Uncontradicted testimony by the Intervenor established that the previous contract of the parties, which contained the same provisions as those under challenge , was applied without discrimination to all employees. The contract involved has a valid union-security clause which provides that new employees hired by the Employer shall become members of the Union within 30 days after employment. Another contract clause provides that all new employees shall be subject to a 30-day trial period, during which time they may be discharged by the Employer "without any reason assigned therefor." A primary principle of contract construction is that the contract be read as a whole, and that every part therein be interpreted in relation to the entire instrument. Other funda- mental rules require (a) that the contract be construed, if possible, so that its provisions are valid rather than invalid; (b) that a reasonable meaning be accorded to all its terms; and (c) that the grammatical and ordinary sense of particular words be read, and where necessary, modified to avoid an absurdity or an inconsistency with the rest of the contract. 3 Viewing the contract in the light of these principles, we cannot give literal effect to the challenged contract provisions, quoted above, without reaching what would be, in our opinion, a highly improbable and an unreasonable conclusion as to the parties' intentions under the contract. The significant fact to be considered is that the parties already provided in their contract for the existence of a valid union shop, with the consequent encouragement of union membership permitted under the Act. The area of possible improper discrimination in the contract is thus narrowly confined to such new em- ployees who are not union members when hired, and who do not join the Union before the expiration of the statutory grace period of their first 30 days of employment. Moreover, it appears that the area is further limited by- the fact that many of the contract terms are, in effect, made inapplicable to such new employees within their first 30 days of employ- ment by reason of the probation provision, which permits the Employer during this period to discharge them "without reason being assigned therefor." In these circumstances, including particularly the fact that a similar prior contract was applied without discrimination, and in the absence of any evidence that discrimination was actually practiced under the terms of the present contract , we resolve the question of construction raised by the contentions of the Petitioner in favor of the contracting parties. We believe that the con- 3See Williston on Contracts, revised edition, Section 618, et se g. GENERAL ELECTRIC COMPANY 921 tract was simply inartfully drawn and that no improper discrimination was intended. Consequently, we find it unnec- essary in this proceeding to pass upon whether the Board would remove the contract as a bar upon sufficient evidence that the discrimination alleged herein by the Petitioner was in fact intended, or practiced.4 Accordingly, we find that the contract presently constitutes a bar to a Board determination of representatives, and shall therefore dismiss the petition. [The Board dismissed the petition.] Chairman Herzog took no part in the consideration of the above Decision and Order. 4Cf. Hughes Tool Company, 104 NLRB 318. GENERAL ELECTRIC COMPANY, Petitioner and INTERNA- TIONAL UNION OF ELECTRICAL, RADIO AND MACHINE WORKERS, CIO AND INTERNATIONAL ASSOCIATION OF MACHINISTS, AFL, AND UNITED ELECTRICAL, RADIO AND MACHINE WORKERS OF AMERICA GENERAL ELECTRIC COMPANY and INTERNATIONAL UNION OF ELECTRICAL, RADIO AND MACHINE WORKERS, CIO, Petitioner GENERAL ELECTRIC COMPANY and UTICA DRAFTING ASSOCIATION, Petitioner . Cases Nos. 3 -RM-75, 3-RC-1155, and 3-RC-1186 . June 30, 1953 DECISION AND DIRECTION OF ELECTIONS Upon petitions duly filed under Section 9 (c) of the National Labor Relations Act, a consolidated hearing was held in these cases before John W. Irving, hearing officer. At the hearing, International Union of Electrical, Radio and Machine Workers, CIO, herein called the IUE, moved to withdraw its petition in Case No. 3-RC-1155. With the approval of the Regional Director, the motion was granted by the hearing officer. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed. Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, the Board has delegated its powers in connection with these cases to a three-member panel [Members Houston, Murdock, and Styles]. Upon the entire record in these cases, the Board finds: 1. The Employer is engaged in commerce within the meaning of the National Labor Relations Act. 2. The labor organizations involved herein claim to repre- sent certain employees of the Employer. 105 NLRB No. 126.