DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Wine and Liquor Store Employees Union, Local 122,
affiliated with Distillery, Rectifying Wine &
Allied Workers International Union of America,
AFL-CIO and Harvey Entin, d/b/a Oz Liquor
Co. Case 2-CB-8849
May 27, 1982
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND
ZIMMERMAN
Upon a charge filed on May 19, 1981, by Harvey
Entin, d/b/a Oz Liquor Co., herein called Entin,
and duly served on Wine and Liquor Store Em-
ployees Union, Local 122, affiliated with Distillery,
Rectifying Wine & Allied Workers International
Union of America, AFL-CIO, herein called Re-
spondent, the General Counsel of the National
Labor Relations Board, by the Regional Director
for Region 2, issued a complaint on June 30, 1981,
against Respondent, alleging that Respondent had
engaged in and was engaging in unfair labor prac-
tices affecting commerce within the meaning of
Section 8(b)(1)(A) and (2) and Section 2(6) and (7)
of the National Labor Relations Act, as amended.
Copies of the charge and the complaint and notice
of hearing before an administrative law judge were
duly served on the parties to this proceeding. On
September 9, 1981, the Regional Director for
Region 2 issued an order amending the complaint
which was served on all parties to this proceeding.
With respect to the unfair labor practices, the
amended complaint alleges that Respondent en-
tered into a collective-bargaining agreement with
Entin containing an invalid union-security clause,
and tried to enforce that invalid union-security
clause by, inter alia, commencing an arbitration
proceeding against Entin, requiring Entin to dis-
charge certain of his employees, entering into an
agreement with Entin in which Entin agreed to
discharge those employees, and attempting to con-
firm that agreement in the supreme court of the
State of New York. On July 22, 1981, Respondent
filed its answer to the complaint admitting in part,
and denying in part, the allegations in the com-
plaint, and requesting that the complaint be dis-
missed. '
I Par 6 of the complaint alleges that Respondent violated Sec.
8(b)(1)(A) and (2) by initiating arbitration proceedings in or about Octo-
ber 1980, and by settling the matter on or about October 9, 1980 Al-
though Entin did not file the charge giving rise to this proceeding until
May 19, 1981, Respondent did not attempt to raise Sec. 10(b) of the Act
as a bar to this allegation of the complaint. We note that the Board con-
siders Sec 10(b) a statute of limitations and therefore waived if it is not
timely raised. Virronic Division of Penn Corporation, 239 NLRB 45 (1978).
We find any such defense waived in the instant case
On October 27, 1981, counsel for the General
Counsel filed directly with the Board a Motion for
Summary Judgment and issuance of a Decision and
Order. Subsequently, on October 30, 1981, the
Board issued an order transferring the proceeding
to the Board and a Notice To Show Cause why
the General Counsel's Motion for Summary Judg-
ment should not be granted.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
Upon the entire record in this proceeding, the
Board makes the following:
Ruling on the Motion for Summary Judgment
In its answer to the complaint Respondent ad-
mitted, inter alia, that on or about November 22,
1980, Respondent and Entin entered into, and have
since then maintained in effect, a collective-bar-
gaining agreement covering certain of Entin's em-
ployees and that the agreement provides, in perti-
nent part:
Whenever the Employer shall find it neces-
sary to replace or to employ additional em-
ployees, he shall be required first to notify the
Union to supply such employees as needed. If
the Union shall be unable, within twenty-four
(24) hours after request therefor, to furnish the
Employer with a member or members in good
standing, then and in that event the Employer
shall be permitted to employ a person of his
own choosing provided, however, that such
person makes application to and be accepted
as a member of the union by a duly authorized
officer of the Union.
The Employer agrees that he will employ
none other than employees in good standing in
the Union during the term of this Agreement.
The Union shall be the sole judge of the good
standing of its members and, upon notice by
the Union to the Employer in writing that any
employee is not a member in good standing in
the Union, such employee shall forthwith be
discharged.
Respondent also admitted that in or about October
1980 it commenced an arbitration proceeding
against Entin in which it attempted, pursuant to the
provision of the collective-bargaining agreement
described above, to require Entin to discharge cer-
tain of his employees who were not members in
good standing with Respondent. 2 It further ad-
2 The General Counsel alleged, and Respondent admitted, that Re-
spondent and Entir entered into a collective-bargaining agreement on
Continued
261 NLRB No. 152
1070
WINE AND LIQUOR STORE EMPLOYEES UNION. I.OCAI 122
mitted that on October 9, 1980, it entered into an
agreement with Entin settling the matter set for ar-
bitration and that in that Entin agreed to discharge
certain of his employees who were not in good
standing with Respondent. Respondent denied the
allegation of the amended complaint that on or
about April 2, 1981, it attempted to confirm, in the
supreme court of the State of New York, this set-
tlement agreement.
We find the contract clause quoted above unlaw-
ful for several reasons. Although a union may
maintain a contract clause providing for an exclu-
sive hiring hall, in making referrals a union may
not discriminate on the basis of union membership.
Here, the agreement provides for an exclusive
hiring hall in that Entin must notify Respondent of
his need for new employees and cannot look to any
other source for employees for 24 hours. As to
whether referrals are limited to members, the
clause provides that only if Respondent is unable to
refer a member or members in good standing is
Entin free to look elsewhere. Clearly, the reference
to referrals in terms of membership in Respondent
strongly implies, if it does not require, that Re-
spondent will refer only members. In this regard,
we also note that the clause anticipates that Re-
spondent will refer only members since it provides
that Entin's obligation to hire Respondent's refer-
rals is limited to those who are members. Further-
more, everything else in the clause is cloaked in
terms of membership in Respondent. Indeed, the
clause requires that, in the event the hiring hall
cannot furnish employees, Entin will hire from out-
side sources only those who make application to
and are accepted as members by Respondent. Con-
sequently, it appears that any employees not re-
ferred by Respondent must, before hire, be cleared
by the latter as new members as a condition of
their obtaining employment. This aspect of the
clause, therefore, also supports the inference that
membership is a prerequisite for referral. It would
be anomalous to conclude that Respondent will
only approve employees for hire who become
members in instances of nonreferrals, but that it
November 22, 1980, containing the union-security clause at issue The
General Counsel further alleged, and Respondent admitted, that Re-
spondent began arbitration proceedings to enforce that union-securiry
clause in or about October 1980. On the surface it would appear that Re-
spondent attempted to enforce the collective-bargaining agreement a
month before the parties reached agreement on it. Housweer, in vice, of
Respondent's admission we deduce that prior to the collective-bargaining
agreement entered into on or about November 22, 19R80 Respondent and
Entin had a previous agreement that contained a union-securint clause
identical to the one quoted in the text. Respondent apparently began arhi-
tration proceedings to enfoirce the clause ill the predecessor colirctisre
-
bargaining agreement In any event, as Respondent admitted that it com-
menced an arbitration proceeding in which it sought to require Enfin to
discharge employees pursuant to the cited union-security clause. we will
rule on the facts as admitted
will place no such condition on employees it refers.
Thus, while technically the clause may be read so
as not to preclude the possibility that Respondent
will refer nonmembers (which Entin would then be
free to reject), we believe the only reasonable read-
ing of the clause is that the parties intended Re-
spondent to refer only members.3 This limitation of
referral to members violates the well-established re-
quirement that through an exclusive hiring hall ar-
rangement a union must service prospective em-
ployees in a fair and equitable manner irrespective
of union membership. Hickey Cab Company, 88
NLRB 327 (1950). Accordingly, Respondent's
maintenance of this exclusive hiring hall clause is in
violation of the Act.
Further, although the Act permits a union to
maintain a contract clause requiring membership in
the union as a condition of employment, to comply
with the Act a union-security clause may only
compel an employee to pay initiation fees and
union dues uniformly required. .. L.R.B. v. General
Motors Corporation, 373 U.S. 734 (1963). The clause
at issue here requires employees to maintain "good
standing in the union" as a condition of employ-
ment. It also provides that Respondent is the sole
judge of its members' good standing. It does not
equate payment of initiation fees and union dues
with good standing. Thus, by these terms, Re-
spondent could compel employees to do more than
satisfy minimal financial obligations to the Union.
For example, it could insist that employees attend
meetings, take an oath, or pay additional assess-
ments; failure to do so would jeopardize employ-
ees' job tenure. Thus, if Respondent determined
that an employee was not in good standing, for
whatever reason, it could demand Entin to dis-
charge him. Entin could not oppose the demand
without violating the contract. Because, by its
terms, the union-security clause gives Respondent
the right to insist that employees do more than pay
initiation fees and periodic union dues uniformly
required as a condition for acquiring or retaining
union membership it is unlawful.
The contract also provides for an unlawful
closed shop. It requires that an employee or em-
ployees chosen by the Employer (after Respondent
is unable to refer a member or members within 24
hours) "make application and be accepted as a
member of the Union by a duly authorized officer
of the Union." An agreement limiting employment
to union members is unlawful. J. S. Brown-E. F.
3 Evcn assuming arguendo that the parties intended that Respondenlt
refer both members and nonmembers. the clause would still be discrimi-
natory and therefore unlawful since it permits Entin to reject enon-
members while compelling him to accept members. thereby glving an
unfair adsantiage to members
1071
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Olds Plumbing & Heating Corporation, 115 NLRB
594, 595 (1956). This provision, conditioning a new
employee's job on Respondent's willingness to
accept the employee as a union member, is there-
fore unlawful.
Similarly, failure to grant employees the statu-
tory grace period of 30 days in which to become a
union member is unlawful. Under the 8(a)(3) provi-
so, a union-security clause must give employees at
least 30 days to become a union member. Howev-
er, this contract does not specify that the employee
has 30 days in which to establish a relationship
with his bargaining representative. Thus, this con-
tract exceeds the permissive bounds of a union-se-
curity clause. Argo Steel Construction Company, 122
NLRB 1077, 1092 (1959).
Any attempt to enforce the unlawful clauses is
likewise unlawful.4 Here, Respondent sought en-
forcement of the clauses through an arbitration
proceeding commenced in October 1980 and a set-
tlement thereof with Entin in which the latter
agreed to discharge employees not in good stand-
ing. Because the union-security clause is flawed,
Respondent may not try to compel Entin by these
or any other means to discharge his employees on
the basis of the contract clauses.
Accordingly, we find that Respondent violated
Section 8(b)(l)(A) and (2) of the Act by maintain-
ing with Entin contract clauses which provide for
an exclusive discriminatory hiring hall, allow Re-
spondent to demand more of employees than the
payment of initiation fees and dues, provide for a
closed shop, and require employees to seek union
membership irrespective of the 30-day statutory
grace period. We also find that Respondent violat-
ed these sections of the Act by attempting to
obtain the discharge of Entin's employees pursuant
to the union-security clause. Therefore, we grant
the Motion for Summary Judgment with respect to
these matters.
However, with respect to the allegation that Re-
spondent attempted to enforce in state court the
agreement settling the matter set for arbitration, we
find that summary judgment is not warranted. The
General Counsel attached to his pleadings a copy
of a New York supreme court decision issued in an
action initiated by Entin, against Respondent, to
stay arbitration. The General Counsel asserts that
the court's mention of Respondent's April 2, 1981,
notice of cross-motion conclusively shows that Re-
spondent sought to confirm the referred-to arbitra-
tion award in state court. However, the court
order on Entin's motion to stay arbitration does not
4 Local 1474-1 Pipe Coverers. International Longshoremen's Association
(J Q. H. Insulating Co., Inc.), 147 NLRB 90, 99 100 (1964). See also
Television Wisconsin. Inc., 224 NLRB 722, 778-780 (1976); True Temper
Corp., 217 NLRB 1120 (1975).
specify whether the arbitration referred to con-
cerns this attempt by Respondent to enforce the
union-security clause. To the contrary, it makes
mention of, inter alia, an arbitration award dated
November 26, 1980, the parties' collective-bargain-
ing agreements dated January 1, 1977, and January
1, 1980, and notices of intention to arbitrate dated
August 11, 1980, and December 1, 1980, but makes
no mention of the October 9, 1980, settlement
agreement. Without clear evidence that the state
court decision cited by the General Counsel con-
cerns the particular matter in this complaint, that
is, the matter set for arbitration and then settled by
the parties, and in light of Respondent's denial of
the pertinent allegation, we find that summary
judgment is not warranted on this issue. However,
a determination that Respondent violated the Act
as alleged in this portion of the complaint would
not materially affect the remedy, infra. Therefore,
we find it would serve no purpose to remand the
case for hearing solely on that allegation. Accord-
ingly, we shall dismiss that portion of the amended
complaint alleging that Respondent unlawfully at-
tempted to enforce in state court the October 9,
1980, settlement agreement. 5
On the basis of the entire record, the Board
makes the following:
FINDINGS OF1 FACT
I. THE BUSINESS OF THE EMPLOYER
Harvey Entin d/b/a Oz Liquor Co., herein
called Entin, a sole proprietorship, with an office
and place of business in New York, New York, is
engaged in the retail sale of wine, liquors, and re-
lated products. During the past 12 months, a repre-
sentative period, Entin, in the course and conduct
of his business operations derived gross revenues in
excess of $500,000, and purchased and received at
his facility products, goods, and materials valued in
excess of $50,000 from other enterprises located
within the State of New York, each of which en-
terprises received the products, goods, and materi-
als directly from points outside the United States.
We find, on the basis of the foregoing, that Entin
is, and has been at all times material herein, an em-
ployer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act, and that it will ef-
fectuate the policies of the Act to assert jurisdic-
tion herein.
a The New York court order is evidence of Respondent's continuing
efforts to obtain the discharge of Entin's employees based on the unlaw-
ful union-security clause.
1072
WINE AND LIQUOR STORE EMP.LOYEES UNION, LOCAL 122
II1. THE I.ABOR ORGANIZATION INVOLVED
Wine and Liquor Store Employees Union, Local
122, affiliated with Distillery, Rectifying Wine &
Allied Workers International Union of America,
AFL-CIO, is a labor organization within the mean-
ing of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
1. On or about November 22, 1980, Entin and
Respondent entered into and maintained a collec-
tive-bargaining agreement covering certain of
Entin's employees. That agreement provides, in
pertinent part:
Whenever the Employer shall find it neces-
sary to replace or to employ additional em-
ployees, he shall be required first to notify the
Union to supply such employees as needed. If
the Union shall be unable, within twenty-four
(24) hours after request therefor, to furnish the
Employer with a member or members in good
standing, then and in that event the Employer
shall be permitted to employ a person of his
own choosing provided, however, that such
person makes application to and be accepted
as a member of the union by a duly authorized
officer of the Union.
The Employer agrees that he will employ
none other than employees in good standing in
the Union during the term of this Agreement.
The Union shall be the sole judge of the good
standing of its members and, upon notice by
the Union to the Employer in writing that any
employee is not a member in good standing in
the Union, such employee shall forthwith be
discharged.
2. On or about October 1, 1980, Respondent
commenced an arbitration proceeding against Entin
in which it attempted, pursuant to the collective-
bargaining provisions described above, to require
Entin to discharge certain of its employees who
were not members in good standing with Respond-
ent.
3. Respondent entered into an agreement with
Entin settling the matter set for arbitration and in
that agreement Entin agreed to discharge certain of
its employees who were not in good standing with
Respondent.
By each of the acts described in paragraphs 1, 2,
and 3 above, Respondent has restrained and co-
erced employees in the exercise of the rights guar-
anteed in Section 7 of the Act, and has engaged in
unfair labor practices within the meaning of Sec-
tion 8(b)(l)(A) of the Act.
By each of the acts described in paragraphs 1, 2,
and 3 above, Respondent has attempted to cause,
and is attempting to cause, an employer to dis-
criminate against his employees in violation of Sec-
tion 8(a)(3) of the Act, and has engaged in unfair
labor practices within the meaning of Section
8(b)(2) of the Act.
IV. THE EFFE CT OF THE UNFAIR LABOR
PRACTICES UPON COMMERCE
The acts and conduct of Respondent described
in section III, above, occurring in connection with
the operations of Entin, described in section,
above, have a close, intimate, and substantial rela-
tionship to trade, traffic, and commerce among the
several States and tend to lead, and have led, to
labor disputes burdening and obstructing commerce
and the free flow of commerce within the meaning
of Section 2(6) and (7) of the Act.
V. THE R.EMi.DY
Having found that Respondent has engaged in
and is engaging in unfair labor practices within the
meaning of Section 8(b)(1)(A) and (2) of the Act,
we shall order that it cease and desist therefrom. In
particular, it shall cease and desist from maintaining
and enforcing the hiring hall and union-security
clauses of the parties' collective-bargaining agree-
ment. Respondent shall post at its office, and the
office of Entin, if Entin is willing, the attached
notice marked "Appendix."
CONCILUSIONS OF LAW
1. Harvey Entin, d/b/a Oz Liquor Co., is an em-
ployer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
2. Wine and Liquor Store Employees Union,
Local 122, affiliated with Distillery, Rectifying &
Allied Workers International Union of America,
AFL-CIO, is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. Respondent by: (a) entering into and maintain-
ing with Entin a collective-bargaining agreement
that provides:
Whenever the Employer shall find it neces-
sary to replace or to employ additional em-
ployees, he shall be required first to notify the
Union to supply such employees as needed. If
the Union shall be unable, within twenty-four
(24) hours after request therefor, to furnish the
Employer with a member or members in good
standing, then and in that event the Employer
shall be permitted to employ a person of his
own choosing provided, however, that such
person makes application to and be accepted
as a member of the union by a duly authorized
officer of the Union.
1073
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Employer agrees that he will employ
none other than employees in good standing in
the Union during the term of this Agreement.
The Union shall be the sole judge of the good
standing of its members and, upon notice by
the Union to the Employer in writing that any
employee is not a member in good standing in
the Union, such employee shall forthwith be
discharged;
(b) commencing an arbitration proceeding against
Entin in which it attempted to require Entin to dis-
charge certain of his employees who were not
members in good standing with Respondent; and
(c) entering into an agreement with Entin settling
the matter set for arbitration which required Entin
to discharge employees not in good standing with
Respondent, has restrained and coerced employees
in the exercise of the rights guaranteed in Section 7
of the Act, thereby engaging in unfair labor prac-
tices within the meaning of Section 8(b)(1)(A) of
the Act, and has attempted to cause, and is at-
tempting to cause, an employer to discriminate
against his employees in violation of Section 8(a)(3)
of the Act, thereby engaging in unfair labor prac-
tices within the meaning of Section 8(b)(2) of the
Act.
4. The aforesaid unfair labor practices are unfair
labor practices within the meaning of Section 2(6)
and (7) of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board hereby orders that the Respondent,
Wine and Liquor Store Employees Union, Local
122, affiliated with Distillery, Rectifying Wine &
Allied Workers International Union of America,
AFL-CIO, New York, New York, its officers,
agents, and representatives, shall:
1. Cease and desist from:
(a) Causing or attempting to cause Harvey Entin,
d/b/a Oz Liquor Co., to discriminate against his
employees on the basis of their membership with
Respondent. 6
(b) Maintaining or giving effect to the hiring hall
and union-security clauses of the collective-bar-
gaining agreement with Entin.
(c) Entering into, maintaining, or giving effect to
any provision with Entin which (1) includes a dis-
" The New York supreme court order attached to the General Coun-
sel's complaint as proof that Respondent attempted to enforce in state
court the parties' agreement settling the matter set for arbitration directs
Entin, inter alia, to discharge all of his employees who are not members
in good standing with Respondent. The state court order is inconsistent
with the Board's Order. infra, and it is preempted by this Decision and
Order. See Gibbons v. Odgen, 22 U.S. (9 Wheat) I (1824); San Dihego
Building Trades Council v. Garmon, 359 U.S. 236 (1959).
criminatory exclusive hiring hall, (2) allows Re-
spondent to demand more of employees than the
payment of initiation fees and periodic dues uni-
formly required as a condition of acquiring or re-
taining membership, (3) provides for a closed shop,
or (4) requires employees to seek union member-
ship irrespective of the 30-day statutory grace
period.
(d) In any like or related manner restraining or
coercing employees in the exercise of the rights
guaranteed them in Section 7 of the Act.
2. Take the following affirmative action which
the Board finds will effectuate the policies of the
Act:
(a) Post at its office, and at the office of Entin, if
Entin is willing, copies of the attached notice
marked "Appendix." 7 Copies of said notice, on
forms provided by the Regional Director for
Region 2, after being duly signed by Respondent's
representative, shall be posted by Respondent im-
mediately upon receipt thereof, and be maintained
by it for 60 consecutive days thereafter, in con-
spicuous places, including all places where notices
to members are customarily posted. Reasonable
steps shall be taken by Respondent to ensure that
copies of said notices are not altered, defaced, or
covered by any other material.
(b) Notify the Regional Director for Region 2, in
writing, within 20 days from the date of this Order,
what steps Respondent has taken to comply here-
with.
? In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursu-
anit io a Judgment of the United States Court of Appeals Eniforcing an
Order of the National Labor Relations Board"
APPENDIX
NOTICE To EMPLOYEES AND MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT cause or attempt to cause
Harvey Entin, d/b/a Oz Liquor Co., to dis-
criminate against his employees because they
are not members of the Wine and Liquor Store
Employees Union, Local 122, affiliated with
Distillery, Rectifying Wine & Allied Workers
International Union of America, AFL-CIO.
WE WIl L NOT maintain or give effect to the
hiring hall and union-security clause of our
collective-bargaining agreement with Harvey
Entin, d/b/a Oz Liquor Co.
1074
WINE AND LIQUOR STORE EMPLOYEES UNION, LOCAL 122
WE WILL NOT require employees at Harvey
Entin, d/b/a Oz Liquor Co., to be union mem-
bers in order to obtain or keep their jobs.
WE WILL NOT enter into, maintain, or give
effect to a union-security clause with Entin
which (I) includes a discriminatory exclusive
hiring hall, (2) allows us to demand more of
employees than the payment of initiation fees
and periodic dues uniformly required as a con-
dition of acquiring or retaining membership,
(3) provides for a closed shop, or (4) requires
employees to seek union membership irrespec-
tive of the 30-day statutory grace period.
Wt WII.. NOT in any like or related manner
restrain or coerce employees in the exercise of
the rights guaranteed them in Section 7 of the
Act.
WINI. ANi) LIQUOR
Et-S UNION, LOCAI.
wI IH DISTILLERY,
At.I.I) WORKIERS
UNION 01: AMI-RICA,
STORI EMPI oY-
122, AFFIll IAT IlI)
R :C'I'l:Y IN(G &
INTIERNATIIONAI.
AFL-CIO
1075
