Northwest Magnesite Co.

NORTHWEST MAGNESITE COMPANY 85 the Petitioner may have had to present its views to the employees under other circumstances 6 Under all the circumstances of this case, we are satisfied that the atmosphere under which the election was conducted casts serious doubt on whether the results of that election reflect the uninhibited desires of the employees.7 We shall therefore set the election aside and shall direct the Regional Director to conduct a new election at such time as he deems appropriate. Order IT IS HEREBY ORDERED that the election held in this proceeding on May 13, 1952, be, and it hereby is, set aside; and IT IS HEREBY FURTHER ORDERED that this proceeding be remanded to the Regional Director for the Thirteenth Region for the purpose of conducting a new election at such time as he deems the circumstances permit a free choice of a bargaining representative. 9 Onondaga Pottery Company, supra. 7 General Shoe Corporation, 77 NLRB 124. NORTHWEST MAGNESITE COMPANY and UNITED STEELWORKERS OF AMERICA, CIO, PETITIONER. Case No. 19-RC-1120. October 23, 1952 Decision and Order Upon a petition duly filed under Section 9 (c) of the National Labor Relations Act, a hearing was held before E. R. Ormsbee, hearing offi- cer. 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 Act, the Board has delegated it powers in connection with this case to a three-member panel [Chairman Herzog and Members Murdock and Peterson]. 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 representa- tion 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 rea- sons: ' At the hearing, the Intervenor moved to dismiss the petition upon the ground that an existing collective bargaining contract is a bar. For reasons set forth infra, the motion is hereby granted. 101 NLRB No. 28. 86 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Intervenor, International Union of Mine, Mill and Smelter Workers, and its Local 606, urges its current contract with the Em- ployer as a bar to this proceeding. The Petitioner contends that the contract is not a bar because (1) the petition was filed, and the Em- ployer had notice of the Petitioner's claim to representation, before the contract was executed, and (2) the contract contains an unlawful union-security provision. Since 1942 or 1943, the Employer and the Intervenor have had suc- cessive collective bargaining contracts covering the employees whom the Petitioner now seeks to represent. Their 1950 contract was ef- fective until June 1, 1952. It contained a provision for automatic renewal from year to year thereafter, in the absence of a 60-day no- tice by either party of a desire to open negotiations for a new contract. On March 30, 1952, the Intervenor gave such notice. Later, on May 3 and 29, representatives of the Employer and the Intervenor met to discuss a new contract. At the May 29 meeting, an agreement was reached. This agreement was ratified by the members of the Inter- venor's Local at a meeting held at 8 o'clock that evening, and was signed by the parties at 9 o'clock. By its terms it was to become ef- fective immediately and to remain in effect until June 30, 1954. Meanwhile the Petitioner, on May 24, 1952, began organizational activities at the plant. On May 28, it wrote a letter to the Employer, requesting recognition, and on May 29, filed a petition with the Board. In addition, according to the testimony of Austin Smith, a representa- tive of the Petitioner, at 5 o'clock on May 29 he deposited a telegram with the Western Union operator at Chewalah, Washington, the town in which the Employer's plant is located, for delivery to Howard Zie- bell, the Employer's manager, advising him of the Petitioner's claim. The Petitioner's letter of May 28 was not received by the Employer until May 31. The telegram, according to Ziebell, was never received 2 As the date of the receipt by an employer of a notice of a union's claim to representation, rather than the date on which such notice is mailed, is controlling,3 the Petitioner's letter of May 28 was too late to prevent the contract from operating as a bar. Furthermore, al- though the petition was filed before the contract was actually signed, it was filed on the same day. The Board has held that in such circum- stances a contract will be a bar unless the employer had actual knowl- edge, before the contract was signed, that a petition had been filed.4 As there is no convincing evidence of such knowledge in this case, we 2 The Petitioner did not submit any valid evidence that the telegram had been delivered to Ziebell. 2 Northwestern Publishing Company (WDAN), 71 NLRB 167. +Afiscisstppi Lime Company of M2ssouri, 71 NLRB 472; The Carborundum Company, 78 NLRB 91. NORTHWEST MAGNESITE COMPANY 87 reject the Petitioner's contention that the filing of the petition pre- vented the contract from operating as a bar. The Petitioner's further contention, that a union-security pro- vision in the 1952 contract is unlawful, is based on the conceded fact that, at the time the contract was signed, the Intervenor was not, and never had been, in compliance with Section 9 (f), (g), and (h) of the Act. However, it came into compliance on June 11, 1952. The union- security provision in question is as follows : The provision of this paragraph shall be deemed effective and operative if and when both the International and Local Union will, or become, in compliance with Sec. 9 (1), (g), and (h) of the National Labor Relations Act, as amended, and notice thereof is furnished to the Company. All employees who, on the effective date of this provision, are members with the Union in good stand- ing in accordance with the constitution and by-laws of the Union and those employees who may therefore [sic] become members shall, during the life of this agreement as a condition of employ- ment remain members of the Union in good standing. [Emphasis supplied.] Section 8 (a) (3) of the Act, as amended in 1951, permints an em- ployer to enter into a union-shop agreement with a labor organization if, among other things, that organization "has at the time the agree- ment was made or within the preceding twelve months received from the Board a notice of compliance with section 9 (f), (g), (h)." Con- trary to our dissenting colleague a literal reading of this language of the statute does not provide a clear and simple answer to the prob- lem presented. We doubt the technical correctness of saying that a union-shop agreement has been "made" when a contract has been executed which contains a clause that on the happening of a con- tingency which may never occur a union shop shall come into being. We believe it more accurate to say that a union-shop agreement is "made" only when the events happen which create the union shop. In any event, at best there is an ambiguity in the use of the word "made" in the statute which warrants our turning to the legislative history for light on the congressional intent. The Senate and House reports indicate that the purpose of the 1951 amendment was to insure that, at the time a union-shop agreement became effective, the union would be eligible to invoke the Board's processes under Section 9 (f), (g), and (h).6 ° Public Law 189 , 82d Congress, 1st Session, approved October 22, 1951. ° "The bill provides . . . that a labor organization shall not be authorized to conclude a union-shop agreement unless, within the preceding 12-month period , it has received notice from the Board that it is in full compliance with section 9 (f), (g), and ( h), ao that, 88 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Where a union-shop provision is to be immediately effective, there can be no doubt as to the meaning of the compliance requirement. In such cases, the Board has held that the union-shop provision is un- lawful and the contract no bar to an election, if the union was not in compliance when the contract was executed.? In this case, however, the operation of the union-security provision was clearly deferred until the Intervenor should come into compli- ance. The effect, therefore, was the same as if the parties had first entered into a contract without any union-security provision, as they could lawfully have done despite the Intervenor's noncompliance, and later, when it came into compliance, had entered into a supplemental union-security agreement. In either case, at the time the union-secu- rity provision became effective, the Intervenor was eligible to invoke the processes of the Board. It should be noted, too, that before the most recent amendment of the Act in 1951, the Board consistently held that a union-security agreement which was not to become effective until the contracting union should be authorized in an election to enter into such an agree- ment as then required, was not unlawful." Although it may be assumed that Congress knew of this practice, there is nothing in the legislative history to indicate that it disapproved. In view of these considerations, we are convinced that Congress did not intend, by the amendment to Section 8 (a) (3), to make it un- lawful for an employer and a union to incorporate in a collective- bargaining agreement a union-shop provision, provided the opera- tion of that provision is clearly deferred until the union should come into compliance. We therefore find that the union-security provision in this case was not unlawful. We find, contrary to the Petitioners' contention, that the contract between the Employer and the Intervenor constitutes a bar to this proceeding. Accordingly, we shall dismiss the petition herein. at the time the union-shop agreement becomes effective, the union is eligible to invoke the Board's processes under section 9 (f), (g), and ( h)." [Emphasis supplied.] Sen. Rep. No. 646, 82d Cong., 1st Sess . 1 (1951). "At the same time the bill does not sanction the execution of a union-shop agreement by a labor organization unless within the preceding 12-month period the organization has received notice from the Board that it is in full compliance with subsections (f), (g), and (h) of section 9 and is therefore eligible to invoke the Board's processes at the time the agreement becomes effective." [Emphasis supplied.] H. R. Rep. No. 1082 , 82d Cong., 1st Sess. 3 ( 1951). 4 Mellin-Quincy Manufacturing Co., Inc., 98 NLRB 457. 8 Schaefer Body, Inc., 85 NLRB 195; Hazel-Atlas Company, 85 NLRB 1305; The Ebsary Gypsum Company, 87 NLRB 624; Asplundh Tree Expert Company, 92 NLRB 1013. Section 8 (a) (3) of the Act , before the 1951 amendments , permitted an employer to enter into a union-shop agreement "if, following the most recent election held as provided in section 9 (e) the Board shall have certified that at least a majority of the employees eligible to vote in such election have voted to authorize such labor organization to make such an agreement." LAKESHORE MOTORS, INC. Order 89 IT IS HEREBY ORDERED that the petition filed herein be, and it hereby is, dismissed. CHAIRMAN HERZOG, dissenting : I cannot agree with my colleagues that this contract is a bar, because I believe that its union-security provision was unlawful from its in- ception. In 1951 Congress said, in so many words, that the validity of a union-shop contract depended in part upon whether the contract- ing union had, "at the time the agreement was made or within the preceding twelve months," received a notice of compliance from this Board. I think that Congress meant what it said, and what it said was "made," and not "became effective." The result I reach is sup- ported not only by the wording of the 1951 amendment, but by the fact that here a literal reading of what was written coincides with effectuating the overriding policy of stimulating early compliance with Section 9 (f), (g), and (h). LAKESHORE MOTORS, INC. and INTERNATIONAL ASSOCIATION OF MACHIN- ISTS, DISTRICT LODGE 1317, AFL, PETITIONER and LOUISIANA AUTO- MOBILE WORKERS ASSOCIATION . Case No. 15-RC-693. October 23, 1952 Supplemental Decision and Order On June 10, 1952, pursuant to the Board's Decision and Direction of Election dated May 26, 1952,1 an election by secret ballot was con- ducted under the direction and supervision of the Regional Director for the Fifteenth Region. The tally of ballots issued after the elec- tion showed that the eligible voters in the unit cast 12 valid ballots, of which 6 were for and 6 against the Petitioner. On June 16, 1952, the Petitioner filed objections to conduct affecting the results of the election. On August 21, 1952, the Regional Director issued a report on objections, in which he found that the objections raised material issues with respect to the conduct and results of the election. Accordingly, the Regional Director recommended that the election be set aside. On August 27, 1952, the Employer filed excep- tions to the Regional Director's report. The Regional Director found, and the Employer does not deny, that during the 9-day period immediately preceding the election, the Em- ployer's vice president, W. M. Thompson, conducted private inter- I Not reported in printed volumes of Board Decisions. 101 NLRB No. 22.