North American Aviation, Inc.

NORTH AMERICAN AVIATION, INC. 269 the International Fur and Leather Workers Union of the United States and Canada is not in compliance with Section 9 (h) of the Act, and ordered that no further benefits under the Act be accorded to that labor organization or to any of its affiliates or constituent units until said labor organization has complied with the requirements of Section 9 (h) of the Act.2 As the only union involved herein is an affiliate of the International Fur and Leather Workers of the United States and Canada and as the latter organization is still out of com- pliance, a continuance of this investigation would contravene the order of May 28 by permitting a noncomplying union to be the bene- ficiary of a Board investigation.3 We must therefore dismiss the petition.4 [The Board dismissed the petition.] 2 Compliance Status of International Far & Leather Workers Union of the United States and Canada, 108 NLRB 1190 3 The Federal Refractories Corporation, 100 NLRB 257. ` We accordingly find it unnecessary to pass upon any of the issues raised in this proceeding NORTH AMERICAN AVIATION , INC. and INDEPENDENT AIRCRAFT WORKERS ASSOCIATION , PETITIONER . Case No. 9-h?C-0140. July 91,195/. Decision and Order Upon a petition duly filed under Section 9 (c) of the National Labor Relations Act, a hearing was held before Orville E. Andrews, 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 representa- tion of employees of the Employer within the meaning of Section 9 1 International Union, United Automobile, Aircraft and Agricultural Implement Workers Union of America, UAW-CIO, and its Local 927, hereinafter called UAW, were permitted to intervene on the basis of a contract covering the Employer' s employees The Petitioner, Employer , and UAW contend that the motion of the International Union of Operating Engineers , Local 89, AFL, hereinafter called Engineers , to intervene should be denied on the ground that its request was untimely . Although the Engineers did not seek to intervene until the close of the first day of a 4-day hearing , we shall permit it to intervene; as-,the record shows it , had, acquired a ,sudidient representative status prior to the close of the hearing. United Boat Service Corporation, 55 NLRB 671; Heintz hlanu- factureng Company, 100 NLRB 1521. The UAW's request for oral argument is hereby denied, as the record and briefs, in our opinion, adequately present the issues and the positions of the parties. 109 NLRB No. 44. 270 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (c) (1) and Section 2 (6) and (7) of the Act, for the following reasons: On December 8, 1953, the Petitioner informed the Employer that it represented a majority of the Employer's employees and asked for recognition as their bargaining agent. The Petitioner had not at this time complied with the filing requirements of Section 9 (f), (g), and (h) of the Act. On December 13, the Intervenor and the Em- ployer executed a collective-bargaining agreement, effective Decem- ber 15, covering the same employees. On December 18, 10 days after making its initial recognition claim, Petitioner effected compliance with Section 9 (f), (g), and (h) of the Act and on that date filed the instant petition. The Intervenor asserts, inter alia, that the con- tract is a bar because the Petitioner had not effected compliance until after the Employer had executed a contract with the Intervenor. Our normal rule is that a petition filed after the signing of a con- tract and during its term is barred by the contract. However, in the General Electric X-Ray case 2 the Board announced, as an exception to this rule, that such a contract would not bar a subsequent petition if, before the contract was signed the petitioner notified the employer of its claim to represent his employees and the petition was filed within 10 days after giving such notice. The Petitioner in the instant case falls within this exception unless, as the Intervenor contends, we are to deny the benefit of the General Electric X-Ray rule to the Petitioner because it was not in compliance with Section 9 (f), (g), or (h) of the Act when it notified the employer of its claim to represent his em- ployees. The X-Ray rule was adopted before the enactment of Sec- tion 9 (f), (g), and (h). However, the Board has so far had no occasion to consider the precise question now before us.3 We are barred by Section 9 (f), (g), and (h) from investigating any question concerning representation raised by a noncomplying union. While the Petitioner had come into compliance when the in- stant petition was filed, our contract bar rule, as already indicated, would prevent us from acting on the petition, considered alone. The Petitioner, however, would have us entertain the petition by reason of its prior claim made before it achieved compliance. Should we do so, we would be validating the petition on the basis of action taken by the Petitioner as a noncomplying union, with the result that we would be entertaining a question concerning representation raised by a union which was not in compliance at the time that it took action essential to the raising of that question. We do not believe that it would be consistent with the policy of Section 9 (f), (g), and (h) to a 67 NLRB 997 1 Cf Standard Oil Co , 101 NLRB 1329 NORTH AMERICAN AVIATION, INC. 271 entertain the instant petition under such circumstances. Accordingly, we shall dismiss the petition. [The Board dismissed the petition.] CHAIRMAN FARMER and MEMBER RODGERS, dissenting : We believe that the majority has unfairly applied the new rule pro- claimed in this case and therefore dissent from the decision. The Petitioner was organized on November 29, 1953, as the after- math of a strike conducted by the Intervenor, the incumbent union. On December 8, 1953, it notified the Employer that it represented a majority of production and maintenance employees and requested recognition as bargaining representative. Ten days later, on Decem- ber 18, 1953, it filed a representation petition with the Board. At the time of filing the petition, but not at the time of making its demand for recognition, the Petitioner had complied with the filing require- ments of Section 9 (f), (g), and (h) of the Act. Notwithstanding the December 8 notice front the Petitioner, the niployer and the Inter- venor, on December 13, entered into a 1-year collective-bargaining con- tract. It is this contract which the majority holds to be a bar, al- though the Petitioner made its claim for recognition before the sign- ing and followed its claim with the filing of a representation petition within 10 days thereafter. As the majority concedes, under the contract-bar rules which were in effect during December 1953, when the events in question occurred, the contract between the Employer and the Intervenor would not be a bar because the Petitioner had made its claim of majority representa- tion before the signing of the contract and had followed the claim with the timely filing of a representation petition.' However, the majority is now enunciating a new rule making the effectiveness of a rival claim to representation dependent upon the claimant's contemporaneous compliance with the filing requirements of Section 9 (f), (g), and (h) of the Act, as well as upon the prompt filing of a petition thereafter. We do not disagree with the new rule, but we would not apply it retroactively, as the majority is doing, nor would we apply it so rigidly as to ignore extenuating circumstances. It seems to us unf air to apply the new rule so as to penalize the Petitioner for not doing what the Board never previously said it had to do.5 As indicated, neither the Act nor the Board's RLiles and Regulations require that a labor organization be in compliance with Section 9 (f), (g), and (h) of the Act before the date of filing of a representation petition.' The Board is adopting the new rule for policy reasons, in order better to effectuate the objectives of Section 9 (f), (g), and (h). 4 General Electric X-Ray Corporation, 67 NLRB 997. 5 Cf Peerless Plywood Company, 107 NLRB 427 , De Soto Creamery and Produce Com- pany, 94 NLRB 1627, 1631. 6 N L R B v. Daiit & Russell, Ltd , 344 U 8 375 272 DECISIONS OF NATIONAL LABOR RELATIONS BOARD But, even in administering the statutory requirements of these sec- tions, the Board has not heretofore insisted on instantaneous com- pliance at the time of filing a petition. On the contrary, the Board's- field regulations provide for a 10-day grace period for achieving com- pliance after the filing of a petition. The Regional Director is also authorized to extend the time of compliance even beyond 10 days where good cause exists. The Regional Director obviously ruled that com- pliance was effected here within the meaning of the rule or he would. have dismissed the petition rather than proceed to a hearing as he did. In the present case, the record shows that the Petitioner achieved com- pliance with Section 9 (f), (g), and (h) of the Act within 10 days. of its demand for recognition. We would therefore hold that the Petitioner had complied with the existing rule. There is another sound reason why the Board should not do what the majority is doing. The underlying purpose of any rule as to com-- pliance is to encourage labor organizations to be in compliance with. the Act's filing requirements at all times and not only when they file, representation petitions or when a complaint is issued. The reason for the new rule presupposes choice on the part of a labor organization.. However, in the present case, the petitioning labor organization did not come into existence until November 29, 1953, about a week before it made its claim to representation. It was practically a physical impossibility for it to complete the various compliance steps before. it made its demand for recognition. That it did achieve compliance as. early as December 18, is testimony to its willingness and ability to. meet the Act's filing requirements and to its promptitude in doing so. To deny effectiveness to the Petitioner's demand for recognition under- these circumstances will not serve any public policy, but will penalize it for not doing the impossible and will result in discrimination against newly formed labor organizations. When the Board proclaimed the, new General Electric X-Ray rule, it provided for exceptions when "extenuating circumstances" appeared.7 We think that in adopting the new rule, the Board should similarly make allowances for situa- tions in which the rigid application of the rule would bring about inequitable results. For the foregoing reasons, we would find that the Petitioner's de-- nland for recognition, followed as it was within 10 days by full com- pliance with the filing requirements of Section 9 (f), (g), and (h) and by the filing of a representation petition, was effective to prevent the agreement between the Employer and the Intervenor from being a bar. We would therefore entertain the petition and proceed to dis- pose of the other issues in the case. 7 General Electric X-Ray Corporation, supra, at p 1000. The Board similarly made provision for "extenuating circumstances " in adopting a new contract bar rule in De Soto Creamery and Products Company, sup; a