Crane and Breed Casket Co.

National Labor Relations Board - Board Decisions

Apr 2, 1969

175 N.L.R.B. 206 (N.L.R.B. 1969)

206 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Crane and Breed Casket Company ' and International
Union of District 50, United Mine Workers of
America , Petitioner . Case 9-RC-7581
April 2, 1969
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS
FANNING AND ZAGORIA
Upon a petition duly filed under Section 9(c) of
the National Labor Relations Act, as amended, a
hearing was held before Hearing Officer Lawrence
M. Siskind of the National Labor Relations Board.
Intervenor Casket Makers Union2 filed a brief.
Pursuant to the provisions of Section 3(b) of the
Act, as amended, the Board has delegated its powers
in connection with this case to a three-member
panel.
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 and it will effectuate the
purposes of the Act to assert jurisdiction herein.
2. At the hearing herein the status of Petitioner,
and of Intervenor Casket Makers Union, as labor
organizations within the meaning of the Act, was
contested. The record reveals without contradiction
that Petitioner represents employees for the purpose
of collective bargaining for wages, hours, and other
conditions of employment and is presently a party
to collective-bargaining agreements with various
employers which agreements embody such matters.
The record reveals, with respect to Casket Makers,
that it is an organization in which employees
participate and that it exists for the purpose of
bargaining with employers concerning wages, hours
of employment, and other terms and conditions of
employment. We find, accordingly, that Petitioner
and Casket Makers are labor organizations within
the meaning of Section 2(5) of the Act,' and claim
to represent certain employees of the Employer. The
parties stipulated that Intervenor Local Union No.
415 (Millmen), United Brotherhood of Carpenters
and Joiners of America, AFL-CIO, is a labor
organization within the meaning of the Act, and we
so find.'
'Hereinafter referred to as the Employer
'Hereinafter referred to as Casket Makers . Casket Makers' intervention
was allowed on the basis of a current collective-bargaining agreement
between the Employer and Casket Makers
'Mayfair Industries, Incorporated, 126 NLRB 223
'In view of our findings below with respect to the alleged defunctness of
Casket Makers Union and with respect to contract bar, we find that it is
unnecessary to, and do not, reach the issue as to the status of Intervenor
Casket Makers Independent Association as a labor organization. This
organization and the Carpenters intervened on the basis of their showing of
interest consisting of signed authorization cards.
3. Petitioner filed this petition on January 23,
1968, seeking an election in a unit of all production
and maintenance employees, excluding all
executives, clericals, plant guards, truckdrivers, and
all supervisory employees as defined in the Act. The
unit sought is substantially the same as the unit
covered by an agreement between the Employer and
Casket Makers effective from September 17, 1966,
to September 17, 1969.5 The Employer, with whom
Casket Makers joins, urges this agreement as a
contract bar to the instant petition, and the
Employer bases on this agreement its refusal to
recognize Petitioner as the representative of its
employees in the above-described unit. Petitioner
and Intervenor Local 415 (Millmen) argue that
Casket Makers is defunct, and that the agreement is
thus not a bar to an election. Alternatively,
Petitioner argues that, if Casket Makers is not
defunct, the agreement has been opened by both
Casket Makers and the Employer for negotiation as
to all matters and is thus not a bar. Casket Makers
answers that the agreement has been opened for the
limited purpose of negotiating certain economic
issues as provided for by the agreement.
We find that no question affecting commerce
exists concerning the representation of employees of
the Employer within the meaning of Section 9(c)(l)
and Section 2(6) and (7) of the Act, for the
following reasons:
Casket Makers was certified by the National
Labor Relations Board as the representative of the
employees involved herein on September 28, 1964.
Since that time Casket Makers has bargained with
the Employer and has executed collective-bargaining
agreements covering the unit described above, the
most recent being effective from September 17,
1966, to September 17, 1969.
On December 20, 1967, Bible, the executive vice
president of the Employer, told Fletcher, who at
that time was president of Casket Makers, that the
Employer had decided there would be no Christmas
bonus that year. That same day, oral notice having
been given, a special meeting of Casket Makers was
held. At that meeting, out of an employee
complement of 185, 139 employees were present.'
After a discussion of the Employer's decision not to
pay the bonus, a motion to dissolve the union,
effective January 15, 1968, was presented and was
passed unanimously by a show of hands.
On December 28, 1967, written notice having
been given, a regular meeting of Casket Makers was
held, and the 69 employees present, after discussion,
voted unanimously to ratify the act of dissolution
'The agreement covers " all employees of the Company at its
Cincinnati plant , excluding executives , professional and administrative
employees, office and clerical employees , truckdnvers , foremen, foreladies,
sub-foremen , sub-foreladies , and all other supervisory employees "
'The record reveals that at meetings of the Casket Makers no effort is
made to ascertain who is or is not a member of the Union or that only
union members vote Furthermore, no accurate records of membership are
or have been kept However, 118 employees were on dues checkoff at that
time.
175 NLRB No. 35
CRANE AND BREED CASKET CO.
passed at the December 20, 1967, meeting.?
Although the resolution dissolving Casket Makers
was to take effect on January 15, 1968, President
Ed Fletcher presided over a meeting held on
January 25, 1968, which was held, according to
Fletcher, because the members had paid their
January dues and because an insurance agent had
r previously been scheduled to speak.
A memorandum dated February 1, 1968, and
signed by former President Fletcher, and all other
officers of Casket Makers, was submitted to the
Employer's personnel director informing him of the
motion and vote to dissolve the Union, and
instructing the Employer to discontinue deduction of
dues. The Employer replied in a letter dated March
7, 1968, indicating that monthly union dues were
deducted in accordance with the
collective-bargaining agreement and that such
deductions would continue.
George Thompson, formerly Casket Makers'
Recording Secretary, informed the Employer by a
letter dated June 6, 1968, of the unwillingness of the
other Casket Makers' officers to perform their
duties, and requested that the Employer deal with
him in all matters pertaining to the administration
of the collective-bargaining agreement. Slaughter,
the Employer's president, in a letter dated June 12,
1968, acknowledged Thompson's letter and stated
that ". . . the Company will, as it has done in
the past, deal with any accredited officer of the
Union...."
On June 13, 1968, Casket Makers held a meeting
which was attended by 4 to 7 people. There is no
evidence as to what transpired at this meeting. A
second meeting was held on August 15, 1968, and
was attended by between 50 and 60 employees.
Watkins, the ranking former officer present, refused
to assume his duties, and new officers were
thereupon elected. On August 22, 1968, the newly
elected officers met with attorney Venn and
discussed the subject of negotiations. A Blue
Cross-Blue Shield representative was present and a
new medical plan was discussed. Union stewards
were designated at this meeting. Subsequently, the
Casket Makers by its officers issued an open letter
to its members and to interested employees
informing them of what had transpired at the
August 15 and 22 meetings and announcing a
meeting to be held on September 4, 1968. At the
September 4 meeting, the new president, Thompson,
appealed for support of Casket Makers, distributed
membership application cards and obtained some
signatures.
Upon the conclusion of the Casket Makers'
meeting on September 4, President Thompson met
with two other officers and two employees for the
purpose of forming Casket Makers Independent
Association, to be placed on the ballot in any Board
'The constitution of Casket Makers provides that any action taken at a
special meeting shall be submitted for ratification and adoption at the next
regular meeting
207
election directed on the grounds that Casket Makers
was found to be defunct.
Also on September 4, 1968, President Thompson,
on behalf of Casket Makers, received from the
Employer approximately $520 in dues previously
deducted for the period February to September, and
thereafter deposited them to the account of Casket
Makers.
On September 9, 1968, the Employer notified its
employees of its decision to reduce the workweek to
4 days. By letter dated September 10, 1968,
Thompson requested a meeting with the Employer
for the purpose of discussing the proposed reduction.
The Employer agreed and met with Thompson on
September 11, during which meeting the parties
agreed that there would be no reduction.
Attorney Venn having given written notice on
July 18, 1968, to the Employer of a desire to reopen
the collective-bargaining agreement under article XV
of that agreement, which provided for negotiation of
"wages only," Thompson wrote the Employer on
September 23, 1968, and requested that negotiations
begin on "certain economic matters." Thompson
attached a list of contract proposals dealing with
wages, seniority and job bidding, fringe benefits, and
a union-shop clause.
The Board's rule on defunctness was stated in
Hershey Chocolate Corporation, 121 NLRB 901,
911, and reaffirmed in Moore Drop Forging
Company, 168 NLRB No. 134, as follows:
a representative is defunct, and its contract
not a bar, if it is unable or unwilling to represent
the employees. However, mere temporary inability
to function does not constitute defunctness; nor is
the loss of all members in the unit the equivalent
of defunctness if the representative otherwise
continues in existence and is willing and able to
represent the employees.
We find that Casket Makers is not defunct under
this rule, relying on all the circumstances of this
case, including the following: The evidence indicates
that the purpose of the December 20 meeting, given
only by word of mouth, was not to dissolve Casket
Makers but to discuss the Employer's refusal to pay
the customary Christmas bonus, and the notice of
the December 28 meeting contained no reference to
dissolution. Moreover, although because of their
dissatisfaction over the Employer's refusal to pay
the bonus the members voted to dissolve the Union,
a meeting of the Union was held and presided over
by its regular president 10 days after the dissolution
was to have taken effect. Following a period of
inactivity, union meetings were resumed in June;
notice of intent to reopen the contract for the
negotiation of economic matters, and proposals with
regard thereto, were served on the Employer in July
and September; the Union was reorganized and
revitalized at meetings held in August and
September, attended by substantial numbers of
employees, which dealt with substantive matters of
concern to the employees; and the Union, in
208 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
September, successfully negotiated with the
Employer withdrawal of its decision to reduce the
workweek. The facts clearly demonstrate that
Casket Makers is an existing organization with
members, a full staff of officers, stewards, and
money in its treasury, and is actively engaged in
representing the employees and administering its
contract. Although no grievances were processed
between December 1967 and September 1968, there
is no evidence that any grievances arose or were
pending during that period. In any event, the hiatus
in grievance and other activity demonstrates, at
most, a "mere temporary inability to function
[which] does not constitute defunctness" in view of
the clear evidence that Casket Makers is ready,
willing, and able to represent the employees. Nor is
the status of the Union affected by the rump
meeting of a few of its supporters to form another
organization for the sole purpose of providing an
alternate independent choice in the event the Board
should find Casket Makers defunct, a precondition
which has not materialized.
We find, therefore, that Casket Makers is not
defunct for contract-bar purposes, and that it would
not effectuate the purposes of the Act to terminate
its status as bargaining representative of the
employees herein.'
We conclude further that the correspondence of
Venn dated July 18, 1968, to negotiate "pursuant to
Article XV," and of Thompson dated September 23,
1968, to negotiate "under our present agreement"
certain economic issues, did not terminate the
current agreement but sought merely to bring about
a midterm modification of the collective-bargaining
agreement and that such action did not remove the
contract as a bar.9
Since the petition was filed more than 90 days
before the expiration date of the current contract,
we find that the contract is a bar to the petition,
and we shall, therefore, dismiss the petition.'
ORDER
It is hereby ordered that the petition filed herein
be, and it hereby is, dismissed.
'Moore Drop Forging Company, supra, News-Press Publishing
Company, 145 NLRB 803, Hershey Chocolate Corporation, supra
'Deluxe Metal Furniture Company, 121 NLRB 995, 1003
"Leonard Wholesale Meats. Inc , 136 NLRB 1000 To the extent that
the Petitioner contends that Casket Makers Union is an employer - assisted
union within the meaning of Section 8(a)(2) of the Act, such an issue is not
litigable in this proceeding Comwel Company . 88 NLRB 810, 811, Bonwit
Teller, Inc. 84 NLRB 414, fn I