Grand Leader Dry Goods Co.

National Labor Relations Board - Board Decisions

Sep 18, 1953

106 N.L.R.B. 1141 (N.L.R.B. 1953)

GRAND LEADER DRY GOODS COMPANY 1 141
organization which admits to membership employees other than
guards, we shall dismiss the petition.
[The Board dismissed the petition.]
Member, Murdock, concurring:
I have always felt that the majority decision in Brink's
Incorporated , 77 NLRB 1182, and American District Telegraph
Company, 89 NLRB 1228, were wrong . Accord ingly, for the'
reasons set forth in my dissenting opinions inthose two cases,
I concur in the result reached by my colleagues in this case
and gladly join with them in reversing those two earlier de-
cisions.
GRAND LEADER DRY GOODS COMPANY OF SOUTH BEND,
INDIANA and RETAIL CLERKS INTERNATIONAL ASSO-
CIATION, LOCAL NO. 37 , AFL, Petitioner . Case No.
13-RC-3320 . September 18, 1953
DECISION AND ORDER
Upon a petition duly filed under Section 9 ( c) of the National
Labor Relations Act, a hearing was held before Robert H.
Cowdrill , 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 Petitioner and United Retail, Wholesale and Depart-
ment Store Employees of America, Local 188, CIO, which
intervened on the basis of its contractual interest , 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:
On May 15, 1951, the Employer and the Intervenor executed
a contract effective for a period of 2 years from May 11, 1951,
with a 30-day automatic renewal provision . On January 29,
1952, the contracting parties modified the contract and, among
other provisions , extended its term to May 11 , 1954 , with the
same renewal provision . The Intervenor came into compliance
with Section 9 ( f), (g), and (h) of the Act on or about March 27,
1952. The instant petition was filed on April 21, 1953, about
15 days after the Petitioner advised the Employer of its claim
for recognition.
The contract contains the following union-security provision:
106 NLRB No. 183.
1 142 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Subject to the conditions hereinafter set forth , regular full
time employees shall make application for membership in
the Union after they have been in the employ of the Company
continuously for thirty (30) days or more, and the Union will
not unreasonably withhold from any employee who so applies
membership in the Union . It is expressly understood and
agreed that the aforesaid provision with respect to employ-
ees joining the Union shall not become effective unless and
until the National Labor Relations Board has duly certified
that a majority of the employees in the unit have authorized
the incorporation of the within clause in this agreement.
The Petitioner contends that the contract is not a bar on the
grounds that : ( 1) The Intervenor was not in compliance on
January 29, 1952, the operative date of the union-security
provision ; ( 2) the union - security clause fails to afford old
employees a 30-day period within which to join the Intervenor;
(3) the contracting parties, in practice , have required that
employees become members of the Intervenor as a condition
of employment ; (4) the deferral clause is meaningless and
must be deemed waived as impossible of performance because
the union - security provision was executed with the knowledge
that the Act as amended on October 22, 1951, 1 no longer re-
quired union -authorization elections ; and (5 ) the contract, which
runs for a total of 3 years, is one of unreasonable duration. The
Employer and the Intervenor assert that the contract is a bar
and the Employer therefore moves the dismissal of the petition.
The Board has recently determined in the New Idea decision I
that a union's noncompliance at the time its union - security
agreement is made does not create such a defect in the bar-
gaining agreement that for contract bar purposes it is incapable
of being cured by subsequent compliance . As the circumstances
in the instant case are similar to those in the New Idea case,
we find the compliance herein was sufficiently timely.
With regard to the remaining contentions of the Petitioner
concerning the union - security provision , the Board has recently
held ' that in this type of proceeding itis unnecessary to deter-
mine the validity of the contract with the same judicial pre-
ciseness as if this were the case of an employee claiming that
he had not been accorded his statutory rights under the union-
shop clause . We also find it unnecessary to pass upon the
Petitioner ' s contention concerning the unreasonable duration
of the contract as the petition , which was filed more than 10
days after the Petitioner ' s request for recognition , was untimely
filed with respect to the automatic renewal date in the original
c ontra ct.4
'See Public Law 189, 82nd Congress , 1st Sess.
2New Idea, Division Avco Manufacturing Corporation, 106 NLRB 1104.
3Regal Shoe Company, 106 NLRB 1078.
4 The Reliance Electric & Engineering Company, 98 NLRB 488; Grinnell Corporation,
97 NLRB 1268.
SEAMPRUFE, INCORPORATED 1143
Accordingly, we find that the current contract is a bar to a
present determination of representatives , and we shall grant
the Employer' s motion to dismiss the petition.
[The Board dismissed the petition.]
Member Murdock took no part in the consideration of the
above Decision and Order.
SEAMPRUFE, INCORPORATED and INTERNATIONAL LADIES
GARMENT WORKERS UNION, AFL. Case No . 16-CA-39.
September 22, 1953
SECOND SUPPLEMENTAL DECISION., ORDER,
AND DETERMINATION
On March 19, 1953, the Boardissueda Supplemental Decision
and Determination 1 in the above case, awarding back pay to
Edna Clendenon. Upon reconsideration, the Board has deter-
mined that Clendenon is not entitled to any back pay, for the
following reasons:
The pertinent facts relating to Clendenon's efforts to obtain
employment after her discriminatory discharge on January 3,
1948, are set forth in the aforesaid Supplemental Decision and
Determination. There is no dispute as to these facts, as they
are based on a stipulation in the record.
The applicable legal principles are correctly set forth in that
Supplemental Decision as follows:
The Board has held that an employee's claim for back
pay may be defeated by proof by the employer that during
the period for which back pay is claimed the employee
failed to make a reasonable search for employment.
As Clendenon failed to register with the United States
Employment Service, it is necessary for the Board to
determine in view of the facts set forth above whether
the Respondent has established that she failed to make
a reasonable effort to obtain employment in McAlester
substantially equivalent to her most recent employment
with the Respondent.
The record shows that during the period of 46 months between
her discharge and reinstatement Clendenon made altogether
only 6 applications for work at various establishments, at
intervals ranging from 5 to 14 months. Prior to her discharge
she had been employed by the Respondent, a garment manufac-
turer, as a machine operator and inspector-work, which, so
far as appears from the record, did not require any high degree
1103 NLRB 763. Member Peterson dissented.
106 NLRB No. 185.