Cyclone Sales, Inc.

National Labor Relations Board - Board Decisions

Feb 15, 1956

115 N.L.R.B. 431 (N.L.R.B. 1956)

CYCLONE SALES, INC. 431
Cyclone Sales , Inc. and International Union , United Automobile,.
Aircraft & Agricultural Implement Workers of America, UAW-
AFL-CIO, Petitioner . Case No. 30-RC-1079. February 15,1956
DECISION AND ORDER
Upon a petition duly filed under Section 9 (c) of the National Labor
Relations Act, a hearing was held before Clyde F. Waers, 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 certain em-
ployees of the Employer.
3. The Intervenor herein, Longmont Printing Specialties and Paper
Products Union No. 614 of International Printing Pressmen & As-
sistants Union of North America, AFL-CIO, contends that its exist-
ing contract with the Employer, effective November 1, 1954, through
October 15, 1956, is a bar to a present determination of representatives.
The Employer takes no position on the contract-bar issue. The Peti-
tioner argues, inter alia, that the contract is not a bar to this proceed-
ing on the following grounds : (1) The contract is invalid because al-
legedly it was collusively executed; (2) the contract is illegal, ab initio,
under State law because no election authorizing a union-shop contract
has ever been held; and (3) in any event, a schism has occurred which
removes the contract as a bar.
In support of its first contention the Petitioner produced testimony
to show that the contract was executed without negotiations at a time
when the operations of the plant were just beginning; that at that time
there were only 4 or 9 departments in operation with a total of 40
employees in contrast to the present employment of 120; and that the
Union involved has never established an office in the city in which the
plant is located, or processed any of the grievances brought forth by-
employees.
As this contention is based on allegations which relate to unfair
labor practices prohibited by Section 8 (a) (2) of the Act, it cannot
be given weight here. For it is established Board policy not to permit
the litigation of alleged unfair labor practices in a representation
proceeding. Nor will the Board permit such allegations to be utilized
in attacking the validity of a contract so as to remove it as a bar in a
representation proceeding.' Accordingly, we will not consider the
' See The Mengel Company , Corrugated Box Division , 114 NLRB 321. The Petitioner
also claims that this was an expanding unit when the contract was executed and for this
reason the contract does not bar an election at the present time. The Employer began
115 NLRB No. 63.
432 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
evidence adduced in support of these allegations as pertinent to the
issue presented.
In support of its second contention the Petitioner referred to, and
read into the record, portions of the Colorado Labor Peace Act of
1943 2 which it contends require the affirmative approval through secret
-ballot by 75 percent of the employees before a union shop contract
may be executed, and which make violation thereof an unfair labor
practice and a misdemeanor.
It is well established that State law is not determinative of rights
and obligations under the Act, except where the Act itself expressly
provides otherwise.3 The Petitioner apparently relies upon Section
14 (b) ' of the National Labor Relations Act as a basis for its position.
The Board has held that State laws which regulate union-shop agree-
ments, as distinguished from those which prohibit such agreements,
are subordinate to the national law and are not encompassed in Section
14 (b) of the Act.' As the Colorado statute, according to Petitioner's
own interpretation, is regulatory rather than prohibitive, we find that
Section 14 (b) of the Act is not applicable, that the national law is
paramount, and that the Colorado statute is irrelevant to the contract-
bar issue presented here.
The Petitioner's claim that a schism has occurred within the con-
tracting Union, which removes the current contract as a bar, is based
upon the following incidents : After appropriately published notice
-the contracting Union on September 19, 1955, held a special disaffilia-
tion meeting attended by 77 of the 120 employees. A motion to dis-
affiliate from the Intervenor International, to dissolve Intervenor
operation at this plant on August 23 , 1954, when it opened the first production line' When
the contract herein was signed on October 25 , 1954, the four production departments in
operation were the paper line , the pacoon line, the shear room , and the pressroom. The
plant has since added the can line , the screwneck line , the waste room, the deluxe line,
and the warehouse department . The unit covered by the contract is production and main-
tenance and the record does not indicate that the 5 departments since added required sub-
stantially different basic skills from those exercised by employees in the initial 4 produc-
tion departments Since , in addition , the employee complement at the time the contract
was executed was approximately 73 of the present personnel , we find , contrary to the Peti-
tioner's contention , that the contract is not removed as a bar on the basis of an expand-
ing unit. See II Muehlsteen and Co , 93 NLRB 1273 , 1274. Also see Musksn Manufac-
turing Co , Inc., 114 NLRB 1307 Cf. Carbide & Carbon Chemicals Division, Union Carbide
and Carbon Corporation, 98 NLRB 270, 272.
8 Petitioner relies particularly upon sections 6 and 23 of the State statute. For the
reasons hereinafter stated we find it unnecessary to pass upon the arguments presented
by the Intervenor with reference to Petitioner 's interpretation of the State law.
3 See Consolidated Vultee Aircraft Corp., Fort Worth Division, 108 NLRB 591, and
cases cited therein
4 Section 14 "(b) Nothing in this Act shall be construed as authorizing the execution or
application of agreements requiring membership in a labor organization as a condition of
employment in any State or Territory in which such execution or application is prohibited
by State or Territorial law."
G See No? thiand Greyhound Lines, Inc , 80 NLRB 288 , and cases cited therein.
CYCLONE SALES, INC. 433
Local 614, and to surrender its charter, was unanimously passed; and
the body then resolved to affiliate with and apply for a charter from
the Petitioner. Thereafter copies of the resolutions passed at the
meeting were sent to the Intervenor International, the Employer, and
the Union's bank. The Employer was also given a statement of
endorsement of such action and' specific revocation of "the written
authorization for check-off of union dues" over the signatures of
employees, 70 dated September 19, 1955, and 30 dated September 20,
1955.
The Intervenor introduced evidence to show that there are at least
5 members 8 of Local 614 remaining, 3 of whom are officers who did not
join the secession movement. The record also indicates that, after
notice of the action taken at the September 19 meeting, the Intervenor
International dispatched a representative to the locality. This repre-
sentative, together with the three remaining officers, negotiated wage
changes with the Employer pursuant to a wage reopening clause 7 and
reached agreement. This agreement, amending the current contract
subject to the results of the instant proceeding, was reduced to writing
and executed by the parties on the morning of the hearing herein.
The Intervenor also introduced testimony to the effect that at a meeting
called after negotiations were completed, 11 employees attended and
ratified the proposed wage increase.
From the foregoing we find that despite the events which have
transpired, the Intervenor, Local 614, continues to function as a labor
organization; is "recognized by the Employer; and, is ready, willing,
and able to administer the contract with the Employer. Accordingly,
we find that a departure from our usual contract-bar rules on the
ground of a schism is not warranted .8
Upon the entire record, we find that the existing contract between
the Intervenor and the Employer is a bar to a present determination
of representatives and that, therefore, 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.' Accordingly, we shall dismiss the petition.
[The Board dismissed the petition.]
e The Intervenor presented testimony indicating that under its constitution a local
cannot dissolve so long as there are five members remaining we do not find such pro-
visions pertinent in determining the effectiveness of schism action
'A notice for wage negotiations was given in February 1955, 'Between that date and
the date of agreement 6 or 7 meetings were held The number of such negotiation meet-
ings held prior to the secession meeting in September is not indicated . However, we do
not find, as urged by the Petitioner, that Inteivenor has been defunct because of the pas-
sage,of time since the wage renegotiation notice was given or because of the failure to
process grievances or to establish an office
See Muskin Manufacturing Co , Inc., 114 NLRB 1307.
390609-56-vol. 115-29