1 - National Labor Relations Board

Enforcement Litigation 137
cerning the validity of the tender, which an employer under
these circumstances - could not be required to resolve at his peril.
In the White Motor case, 36 the Sixth Circuit sustained the
Board's finding that an employer violated section 8 (a) (3) and
( 1) of the Act by subcontracting its guards' work and transferring
the guards to other work because they joined a union
which admitted to membership employees other than guards.
The court pointed out that, while section 9(b) (3) of the Act 37
prohibits certification of a union representing nonguard employees
as the bargaining agent for guards, it does not limit the
right of guards, guaranteed by section 7 of the Act, to join
such a union. Indeed, while the employer may not be compelled,
directly or indirectly, to recognize a nonguard union as bargaining
agent for the guards, it may, if it wishes, grant such
recognition. Because the court felt that the Board's remedial
order, requiring reinstatement of the guards, did not make it
sufficiently clear that the guards' work could later be subcontracted
for nondiscriminatory reasons, and that the guards'
right to reinstatement was conditioned on the continued existence
of the guard unit, the case was remanded to the Board for
reconsideration of the remedial order.
3. The Bargaining Obligation
a. Duration of Recognition
A number of cases decided by courts of appeals during the
past fiscal year involved the question of when an employer may
withdraw recognition from a union which is certified as the
bargaining representative of its employees, or which it has voluntarily
recognized without a Board certification. In Montgomery
Ward," an employer who had voluntarily recognized a union on
the basis of a card check refused to bargain 3 days later when
an employee filed a decertification petition which was subsequently
dismissed by the Board because the relationship established
by the prior recognition had not yet had a reasonable
time to function. Viewing the issue before it as essentially one
of the propriety of the Board's refusal to hold a decertification
"N.L.R.B. v. White Superior Div., White Motor Corp., 404 F.2d 1100.
3r Sec. 9(b) (3) of the Act provides that "The Board shall . . . not . . . decide that any.
unit is appropriate for [collective bargaining] purposes if it includes, together with other
employees, any individual employed as a guard" and that "no labor organization shall be
certified as the representative of employees in a bargaining unit of guards if such organization
admits to membership, or is affiliated directly or indirectly with an organization which admits
to membership, employees other than guards."
"N.L.R.B. v. Montgomery Ward & Co., 399 F.2d 409 (C.A. 7)•