Standard Molding Corp.

National Labor Relations Board - Board Decisions

Jul 19, 1962

137 N.L.R.B. 1515 (N.L.R.B. 1962)

STANDARD MOLDING -CORPORATION 1515
Standard Molding Corporation and International Molders and
Allied Workers Union , AFL-CIO , Petitioner . Case No. 9-RC-
4735. July 19, 1962
DECISION ON REVIEW AND DIRECTION OF ELECTION
On January 19, 1962, the Regional Director issued a Decision and
Order dismissing the petition in the above-entitled proceeding. There-
after, the Petitioner in accordance with Section 102.67 of the Board's
Rules and Regulations, Series 8, as amended, filed with the Board a
timely request for review on the ground that the Regional Director
erroneously found the existing contract between the Employer and
the Intervenor, The Standard Molding Employees Independent
Union, is a bar to the petition. The Board by telegraphic order dated
February 19,1962, granted the request for review.
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in connection with this case to a three-
member panel [Members Rodgers, Leedom, and Fanning].
The Board has considered the entire record in this case with respect
to the Regional Director's determination under review, and makes
the following findings :
The Employer and the Intervenor urged as a bar to the petition
herein their contract executed retroactively on October 31, 1961, for
a period of 2 years beginning September 14, 1961, which incorporates
by reference and adopts the terms of an earlier contract between the
parties timely reopened before its September 14, 1961, anniversary
date.
Article II of the earlier contract, which was also retroactive from
January 7, 1960, to September 14, 1959, provides as follows :
Union Shop
it is mutually agreed that, as a condition of employment
by the Company, all employees covered by this agreement shall,
not later than thirty days after the effective date of this agreement
of amendment or sixty days after date of hiring by the Company,
whichever time is later, be and become members of the union,
party to this agreement, subject, however, to the provisions and
limitations of the National Labor Relations Act, as now or here-
inafter amended, for the remainder of the term of this agreement
and any extensions thereof, provided, further, that nothing in
this agreement shall be construed so as to require the Company to
discriminate against any employee with respect to his employment
for non-maintenance of membership in said Union if the Com-
pany has reasonable grounds for believing that said such mem-
bership was denied or terminated for reasons other than the fail-
137 NLRB No. 158.
1516 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ure of the employee to tender payment to the Union of periodic
dues and initiation fees uniformly required as a condition or
[sic] acquiring or retaining membership in said Union, and the
Union agrees to give the Company at least seven days notice in
writing of any demand that any employee be discharged under
provisions of this article, within which seven days time the em-
ployee shall have the right to cure any default in payment of such
dues or initiation fees.
The Regional Director found that it would be necessary to look to
extrinsic evidence in order to determine whether any employee was
denied a 30-day grace period in which to join the Union and that, as
the union-security clause is at the most ambiguous, but not clearly un-
lawful, it did not render the contract invalid as a bar. We do not
agree . The contract is not ambiguous. Instead it shows on its face
that it is retroactively effective and that its grace period is geared to
that effective date, September 14, or 60 days after hire, whichever is
later. The statute, however, permits only union-security agreements
requiring membership "on or after the thirtieth day following the be-
ginning of such employment or the effective date [not retroactive] of
such agreement, whichever is later." When a contract is retroactive,
the 30-day grace period is computed from its execution date.' In this
case, the execution date is October 31 and the crucial 30-day date for
employees already hired becomes November 30, instead of Septem-
ber 14 and October 14 as specifically required by the contract. Thus
the contract, because of its retroactivity, fails to accord nonmember
incumbent employees the required 30-day grace period following the
date of its execution. Nor does the 60-day-after-hiring option cure
the situation. For instance, employees hired within the week follow-
ing the September 14 "effective" date of the new contract would be
required to join 60 days later-by November 21 at the latest dependent
upon their date of hire-explicitly contrary to the statutory scheme
which allows them to wait until 30 days after the execution date, No-
vember 30, because that date is later. Thus we construe this contract
as one which "specifically withholds from incumbent nonmembers
and/or new employees the statutory 30-day grace period" by reason
of its retroactive effectiveness. It is therefore a provision incapable of
a lawful interpretation and does not bar the instant petition.
Accordingly, we find, contrary to the Regional Director, that a ques-
tion affecting commerce exists concerning the representation of the
employees of the Employer within the meaning of Section 9(c) (1)
i See Seaboard Terminal and Refrigeration Company, 114 NLRB 1391 , 1394, Nordberg-
Selah Fruit , Inc., Nordberg-Westbrook Fruit, Inc , 126 NLRB 714, 716, 746 ( Member
Fanning did not pass upon the retroactivity issue because not alleged or litigated See
footnote 7). See also Keystone Coat, Apron & Towel Supply Company , et at., 121 NLRB
880, 885, footnote 6, which has not been overruled in its interpretation that union-
security clauses in retroactive contracts speak as of the execution date
COOK CHOCOLATE COMPANY 1517
and Section 2 (6) and (7) of the Act, and shall direct an election in the
following unit which we find to be appropriate for the purposes of
collective bargaining within Section 9 (b) of the Act : 2
All production and maintenance employees at the Employer's two
Dayton, Ohio, plants, including shipping clerks, janitors, and truck-
drivers, but excluding office clerical employees, salesmen , guards, pro-
fessional employees , and supervisors as defined in the Act.
[Text of Direction of Election omitted from publication.]
9 The appropriateness of the unit was stipulated by the parties
Cook Chocolate Company and Miscellaneous Warehousemen and
Production Employees ' Union , Local No. 781 , I.B. of T. Case
No. 13-CA-4515. July 20, 1962
DECISION AND ORDER
On April 5, 1962, Trial Examiner Arthur E. Reyman issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondent had not engaged in unfair labor practices as alleged
in the complaint and recommending dismissal of the complaint in its
entirety, as set forth in the attached Intermediate Report. There-
after, the General Counsel filed exceptions to the Intermediate Re-
port and a supporting brief. The Respondent filed a brief in support
of the Intermediate Report.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Members Rodgers, Fanning, and
Brown].
The Board has reviewed the rulings made by the Trial Examiner at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and briefs, and the entire record in
the case, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner.
[The Board dismissed the complaint.]
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
This is a proceeding under Section 10(b) of the National Labor Relations Act,
as amended , 29 U.S.C. 151 , et seq., herein called the Act.
Miscellaneous Warehousemen and Production Employees ' Union, Local No. 781,
I.B. of T. (International Brotherhood of Teamsters , Chauffeurs, Warehousemen and
Helpers of America), herein sometimes called the Union or Local No. 781, having
137 NLRB No. 168.