Hughs-Vertin Lime Co.

HUGHES-VERTIN LIME COMPANY 185 APPENDIX A Frances Avery Hazel Judge Max Cherny Clara Lusk Mildred L. Carter Joyce Kendrick Jewell Cox Ruby A Martin Ollie Chambers Virgie Mahan Mary Durham Helen Morgan Ruth Crabtree Ona Mason Winme Lu Gaither Dorothy Poe Florine Fitzgerald Imogene Parsons Lucille Gossett Martha Short Dorothea Garren Stena Ransom Gertrude Guffee James A. Smith Nellie V. Green Virginia Vitatoe Elizabeth Hart Edna Vandergriff Mary Gunter Lena Brock Dorothy Headrick Bertha Tilley George Hayes Cynthia Chambers Geneva Kelly Nellie Clark HUGHES-VERTIN LIME COMPANY and UNITED CEMENT, LIME AND GYPSUM WORKERS INTERNATIONAL UNION, AFL, Petitioner. Case No. 20-RC-2056. April 17, 1953 DECISION AND ORDER Upon a petition duly-filed under Section 9 (c) of the National Labor Relations Act, a hearing was held before Clement W. Miller, 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 em- ployees of the Employer. 3. No question affecting commerce exists concerning the representation of employees of the Employer within the mean- ing of Section 9 (c) (1) and Section 2 (6) and (7) of the Act, for the following reasons: The Employer and Tri-Counties Building and Construction Trades Council, AFL, the Intervenor, assert that their current contract is a bar to this proceeding. The Petitioner contends that the contract, which contains a union-security clause, is not a bar because the Intervenor was not in compliance on the operative, or Mill-B, i date of the contract's automatic renewal clause, nor at the time the Petitioner requested recognition. After a Board-directed election, 2 the Intervenor was certified on July 30, 1951, as the bargaining representative of the Em- ployer's production and maintenance employees. On January 25, 1952, the Employer and the Intervenor executed the union-shop contract sasserted herein as a bar, effective January 1, 1952, for a 1-year period, with annual automatic renewal thereafter, absent written notice by either party of its desire to change the agreement at least 60 days before any anniversary date. i See Mill-B, Inc.. 40 NLRB 346. 2 Case No. 20-RC-1355 (not reported in printed volumes of Board decisions). 3 Article III of the contract provides: Section 1 . Membership in the Union shall be required as a condition of employment on and after the thirtieth (30th) day following the beginning of such employment or transfer into the bargaining unit, or the effective date of this Agreement , whichever is the later. 104 NLRB No. 20. 186 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Neither party served such notice before November 1, 1952, the initial Mill-B date , and the contract was automatically renewed for an additional term of 1 year, commencing January 1, 1953. On November 18, 1952, the Petitioner wrote the Employer requesting recognition as bargaining representative of the production and maintenance employees . On November 20, 1952, almost 3 weeks after the Mill-B date, it filed the instant petition , seeking these employees. r The `administrative records of the Board disclose that the Intervenor received its last notice of compliance with Section 9 (f), (g), and (h) on March 5, 1951 , indicating that it would be in compliance with Section 9 (f) and ( g) until December 31, 1951, and 9 (h) until July 31, 1951. Upon refiling the affidavits required under Section 9 (h), the Intervenor remained infull compliance until December 31 , 1951 , several weeks before the contract was executed and 1 day before its effective date. It did not achieve compliance again until December 8 , 1952, after the petition herein was filed and after the contract had been automatically renewed, but before the effective date of the second yearly term of the agreement. Section 8 ( a) (3) of the Act, as amended in 1951,4 permits an employer and ' a labor organization to execute a union-shop agreement if, among other things, the labor organization "has at the time the agreement was made or within the preceding twelve months received from the Board a notice of compliance with sections 9 (f), (g), (h),..." The Senate report accompany- ing S . 1959, the bill that accomplished this recent legislation, described the purpose of this amendment as follows:' The bill provides, however, that a labor organization shall not be authorized to conclude a union shop agree- ment 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), so that, 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.) The Petitioner' s contention that the union-security clause is invalid, and the contract therefore is no bar, rests upon the fact that the Intervenor was not in compliance with Section 9 (f), (g), and (h) on the Mill-B date, or on the date the Petitioner requested recognition. We find no merit in this contention. We believe that the legislative history indicates that Congress intended merely to require compliance at the time a union-shop agreement becomes effective. However, unlike our dissenting colleagues, we find it unnecessary in this case to determine the compliance status of the Intervenor at the time the contract was first executed. In our view, it is sufficient that the contract- ing union was in full compliance with Section 9 (f), (g), and (h) 4Public Law 189, 82nd Congress . 1st Session, approved October 22, 1951. 'Senate Report No. 646, 82ndCongress , lstSession,1951 . See, also, for a similar statement of legislative intent , House of Representatives Report No. 1082, 82nd Congress, 1st Session, 1951. HUGHES-VERTIN LIME COMPANY 187 on January 1, 1953, the date the contract as automatically re- newed became effective. We therefore find that the union- security provision involved herein is not invalid.6 As the petition herein was untimely filed, we find that the existing contract constitutes a bar to this proceeding. Accord- ingly, we shall dismiss the petition. ORDER IT IS HEREBY ORDERED that the petition filed herein be, and it hereby is, dismissed. Chairman Herzog and Member Peterson, dissenting: We would find this contract no bar because the union-security provision was unlawful from its inception, due to the failure of the contracting union to meet the full requirements of Section 8 (a) (3) as amended in 1951. These include the requirement that the union shall have received a notice of compliance from the Board "at the time the agreement was made or within the preceding twelve months." (Emphasis supplied.) In our view the Intervenor was required to have been in compliance at the time the agreement was made or to have received a notice of compliance within the preceding 12 months, which notice had not expired at the time the agreement was made.? Accordingly, as the Intervenor was not in compliance on November 1, 1952, the date when the agreement urged as a bar here was made, we believe that its belated compliance thereafter did not serve to cure the invalidity of the union-security provision. We would therefore direct an election in the agreed-upon production and maintenance unit. 6See Williams Laundry Company , 97 NLRB 995 . Cf. Northwest Magnesite Company, 101 NLRB 85. 7 Although the Intervenor had received from the Board a notice of compliance with Section 9 (f), (g), and (h) within the 12-month period before the contract•was made, that notice stated that the compliance would expire on December 31, 1951 , months before the contract was re- newed. We believe that an expired compliance notice is inLsufficienttto,satisfy the requirements of Section 8 (a) (3), and that Congress intended to require full compliance with 9 (f), (g), and (h) at the time of entering into any union-security agreement . This conclusion is supported by the legislative history cited in the majority decision . It is apparent that in requiring a notice of compliance "at the time the agreement was made or within the preceding twelve months," Congress had in mind the fact that Section 9 (g) and (h) contains provisions that require refiling of all data and affidavits on an annual, and hence presumptively on a continuing , basis. During the course of Senate consideration of S. 1959, proposing the amendments with which we are here concerned , Senator Mundt inquired whether the bill would make it easier for unions to meet the requirements for executing union- shop agreements without their officers executing non-Communist affidavits . Senator Humphrey, one of the sponsors of the amendments , replied: It does not. The non-Communist oath or affidavit requirement is a part of the Taft- Hartley law which must be abided by; and this measure would not in any way affect the necessity and legal obligation of every union official to sign the non-Communist a ffidavit. (Emphasis supplied.) (Congressional Record, Senate, August 21 , 1951, p. 10674.)