Desaulniers and Co.

National Labor Relations Board - Board Decisions

Apr 12, 1956

115 N.L.R.B. 1025 (N.L.R.B. 1956)

DESAULNIERS AND COMPANY 1025 -
hearing no contract had as yet been signed, negotiations still being in
progress. It was stipulated by the parties that no union-security
provision covering the employees of the Employer is incorporated in
any existing agreement.
The Union moved to dismiss the petition on the ground that no
agreement being in existence, the petition cannot be brought under
Section 9 (e) of the Act.
We find merit in the Union's contention. Section 9 (e) (1)
provides:
Upon the filing with the Board, by 30 per centum or more of the
employees in a bargaining unit covered by an agreement between
their employer and a labor organization made pursuant to section
8 (a) (3), of a petition alleging they desire that such authority
be rescinded, the Board shall take a secret ballot of the employees
in such unit and certify the results thereof to such labor organiza-
tion and to the employer. [Emphasis supplied.]
The foregoing provision makes it clear that the right of employees
to file a deauthorization petition is conditioned upon the existence of
an agreement between the Employer and a labor organization made
pursuant to Section 8 (a) (3) of the Act. As the Board declared in
Great Atlantic & Pacific Tea Company;' an affirmative deauthorization
vote relieves employees of the . obligations imposed by an existing
union-security agreement. Because in the present instance there is
no union-security agreement in effect and no obligation is imposed on
the employees, we shall dismiss the petition.
[The Board dismissed the petition.]
$ 100 NLRB 1494, 1497.
Desaulniers and Company and Amalgamated Lithographers of
America, AFL-CIO, Petitioner
Employer Members of Tri-Cities Section of Graphic Arts Indus-
try, Inc.' and Amalgamated Lithographers of America, AFL-
CIO, Petitioner . Cases Nos.13-RC-4614 and 13-RC-461,5. April
18, 1956
DECISION AND DIRECTION OF ELECTION
Upon petitions duly filed under Section 9 (c) of the National Labor
Relations Act, a consolidated hearing was held before Frances P. DOM.,
i herein referred to as the Association . The Employer-members of the Association in-
volved in this proceeding ate : Desaulniers and Company , Bawden Brothers , Inc., Augustana
Book Concern , and The Palmer School of Chiropractic.
115 NLRB No. 164.
390609-56--Vol . 115- 6 6
1026 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
hearing officer. The hearing officer's rulings made at the hearing are
free from prejudicial error and are hereby affirmed .'
At the hearing, the hearing officer refused to permit the Employers
And the Intervenor to litigate the matter of the Petitioner's alleged
noncompliance with the filing requirements of the Act, based on the
allegation that in view of his functions, the Petitioner's international
representative was an officer of the Petitioner, and the further alle-
gation that the said international representative had not filed an affi-
davit pursuant to Section 9 (h) ; there was, however, no allegation
-that the Petitioner's international representative occupied a position
designated as an "officer" in the Petitioner's constitution.
The hearing officer 's ruling, which was in accord with established
Board practice providing that issues pertaining to compliance mat-
ters which do not involve interpretation of the statutory language
may not be litigated in representation or unfair labor practice pro-
ceedings but are to be determined administratively only in collateral
proceedings, is hereby affirmed.' Moreover, in the absence of any alle-
gation that the Petitioner's international representative is an officer of
-the Petitioner under the Board's "constitutional" test for determining
-who is an officer of a labor organization within the meaning of Sec-
tion 9 (h), which test has been approved by the Supreme Court 4 the
foregoing allegations raise no issues which warrant further adminis-
trative investigation of the Petitioner's compliance status, and the
Board is administratively satisfied that the Petitioner is in compli-
ance with the filing requirements of Section 9 (h) of the Act.
Upon the entire record in these cases, the Board finds :
1. The Employer is engaged in commerce within the meaning of the
Act.
P During a recess in the hearing , the Petitioner filed with the hearing officer a motion
seeking ( 1) to place in evidence certain additional facts concerning the request forkrecog-
nition , and (2 ) to withdraw its petition in Case No . 13-RC-4615. The Intervenor filed an
-answer to Petitioner 's motion , but neither the Association nor Employer responded thereto.
-The hearing officer referred the motion to the Board . In the absence of any opposition
thereto, the motion is granted as to ( 1) and the matter contained therein is received in
.evidence. The Intervenor opposed Petitioner 's request to withdraw its petition in Case
No. 13-RC-4615 on the ground that "to permit the withdrawal . . . would be to divest
this intervenor of an opportunity to meet on its merits " the petition in that case. As the
Intervenor had full opportunity at the hearing to litigate all issues relevant to this pro-
ceeding and has failed to indicate how it might be prejudiced if the Petitioner 's •motion Is
.granted, we find no merit to the Intervenor 's contention . Accordingly , the Petitioner's
motion to withdraw the petition in Case No. 13 -RC-4615 Is hereby granted.
8 Coca-Cola Bottling Company of Lou,aville, Inc., 108 NLRB 490; we do not read the
Supreme Court decision in N. L. it. B v. Coca - Cola Bottling Co. of Louisville, Inc., 350
U . S. 264, decided February 27, 1956, as holding to the contrary . See also N. L. it. B. v.
,Highland Park Manufacturing Co., 341 U. S. 322
Member Rodgers is of the opinion that the Supreme Court's decision in the Coca-Cola
, case requires the Board to permit litigation , during the course of unfair labor practice or
representation proceedings , of all issues pertaining to the compliance of a labor organiza-
tion with Section 9 ( h) of the Act , except that the application of the Board's constitutional
test, as approved by the Supreme Court, cannot be challenged.
4 N. L. R. B. v. Coca - Cola Bottling Co. of LouL8t Llle , Inc., Supra.
DESAULNIERS AND COMPANY 1027
2. The labor organizations involved claim to represent certain em-
ployees of the Employer s
3. A question affecting commerce exists concerning the representa-
tion of employees of the Employer within the meaning of Section 9 (c)
(1) and Section 2 (6) and (7) of the Act. '
•T]ae Employer and the Intervenor contend that their current con-
tract is a bar to the petition.' The Intervenor and the Employer en-
tered into a contract effective from January 1, 1954, to January 1, 1956,
with provision for automatic renewal for a 1-year term in the absence
of notice to terminate on or before October 1, 1955. In March of 1955,
pursuant, to a wage reopening clause, the parties entered into a new
agreement effective from January 1, 1955, to January 1, 1957. The
Petitioner's claim to represent the employees designated in its petition
was received by the Employer on September 30, 1955, and its petition
was filed on October 3, 1955.
It is clear, as the Petitioner contends, that the 1955-57 contract was
a premature extension of the earlier contract and, therefore, under
settled Board principles, cannot bar a petition which was timely filed
with respect to the term of the earlier contract' Although the petition
was not filed until after the automatic renewal date of the earlier con-
tract, the Petitioner's claim was made before that date, and the petition
was filed within 10 days of that claim; under these circumstances, we
find that the petition was timely filed with respect to the term of the
earlier contract,' and that neither that contract nor the current contract
is a bar to a present determination of representatives.
4. The Petitioner seeks a unit limited to the Employer's lithographic
employees. The Employer, the Association, and the Intervenor con-
tend that as the Employer's lithographic employees are part of an
existing multiemployer unit of lithographic and letterpress employees,
the lithographic employees may be severed from that unit only, on a
basis coextensive in scope with the existing unit. They argue, accord-
ingly, that the unit sought by the Petitioner is too limited in scope, and
that-the petition should therefore be dismissed. * For the reasons set
forth hereinafter, we agree with the Petitioner that the unit sought is
appropriate for the purposes of collective bargaining.
The Association has for approximately 10 years bargained with the
Intervenor for those of its members, named above, whose letterpress
6 Tri-City Printing Pressmen & Assistants Union, Local 28 , AFL-CIO , intervened at the
hearing on the basis of current contracts covering the employees here involved . The AFL
and CIO having merged since the hearing in this proceeding , the designations of the Peti-
tioner and the Intervenor have been amended accordingly.
0 The Petitioner initially sought a single-employer unit of the Employer's employees in
Case No. 13-RC-4614, and as an alternative, a multiemployer unit in Case No. 13-RC-4615.
As we have granted the Petitioner's motion to withdraw its petition in the latter case, only
tide Intervenor's contract with the Employer is material to the issue of contract bar.
7 Worthington Corporation, 109 NLRB 1306, 1307.
8 Westinghou8e Electric Corporation, 106 NLRB 1233; General Electric X-Ray Corpora-
tion, 67 NLRB 997 . Cf. Spencer Kellogg it Sons, 115 NLRB 838.
1028 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and lithographic employees were represented by the Intervenor. Sepa-
rate but practically identical contracts covering lithographic and
letterpress employees have during this period been signed by the vari-
ous Employer-members of the Association and the Intervenor. Since
1954 the lithographic employees of the Employer have been covered by
such a contract. -
The Employer maintains a complete, full-time lithographic opera-
tion. Its off-set presses and other lithographic equipment are located
in a building separate from those housing its letterpress and other
printing equipment. There is substantially no interchange between
the 18 employees doing lithographic work, and those engaged in letter-
press or other printing operations. On the other hand, the situation
at the plants of the other three Employer-members of the Association
is materially different, in that (1) none of the other Employers oper-
ates a complete lithographic process; (2) their lithographic equipment
is generally in the same work areas as their letterpresses; and (3) their
employees who perform lithographic work also spend a substantial
part of their time on the letterpresses.9
The Board has frequently held that all employees engaged as an
identifiable group in the lithographic process form a cohesive unit
appropriate for the purposes of collective bargaining.10 When, how-
ever, there is regular and continued interchange of employees be-
tween letterpress and lithographic operations, so that there exists no
readily, identifiable separate group of lithographic employees, the
Board has held that a combined- unit of lithographic and letterpress
employees is appropriate." It is clear from the record in the instant
case, as set forth above, that only the Employer's lithographic em-
ployees form that kind of a separately identifiable cohesive group
which may be separately represented for the purposes of collective
bargaining ; on the other hand, because of their substantial and reg-
ular interchange between letterpress and lithographic work, the em-
ployees who perform lithographic work at the plants of the other
three Employer-members of the Association may, under the Pacific
Press case , be represented only as part of a unit of lithographic and
letterpress employees . Under these circumstances, we find that the
-Employer's lithographic employees are the only lithographic em-
ployees in the' established multiemployer unit who may be separately
represented for the purposes of collective bargaining, apart from the
9 The Palmer School of Chiropractic has 3 employees engaged in lithographic work ; 1
spends 70 to 80 percent of his time at such work, and the other 2 between 40 to 60 per-
cent. At Bawden Brothers there are 2 employees represented by the Intervenor who per-
form lithographic work from 50 to 60 percent of their time. At Augustana Book Concern
there is only one employee who performs any lithographic work, and he spends but a third
of his time at such activity.
w See , e. g., Standa, d Printing d Lithographing Co., 114 NLRB 1439 ; McKay Press, 113
NLRB 683.
31 Pacific Press, Inc., 66 NLRB 458.
McANARY &, WELTER, INC. 1029
letterpress employees, and that the unit sought by the Petitioner is
therefore in fact coextensive in scope with the existing unit.
. In view of the foregoing, and as the Petitioner is a union which
traditionally represents lithographic employees, we find that the litho-
graphic employees whom the Petitioner seeks to represent may, if
they so desire, constitute a separate appropriate unit. We shall not,
however, make any final unit determination at this time but shall
first ascertain the desires of these employees as expressed in the elec-
tion hereinafter directed. Accordingly, we shall direct that an elec-
tion be held among the employees in the following voting group : All
lithographic production employees of the Employer employed at the
plant of Desaulniers and Company, Moline, Illinois, excluding all
other employees, guards, and supervisors as defined in the Act."
5. If a majority vote for the Petitioner they will be taken to have
indicated their desire to constitute a separate appropriate unit, and
the Regional Director conducting the election directed herein is in-
structed to issue a certification of representatives to the Petitioner
for the unit described in paragraph 4, which the Board, under such
circumstances, finds to be appropriate for the purposes of collective
bargaining. In the event a majority do not vote for the Petitioner,
these employees shall remain a part of the existing unit and the Re,
gional Director will issue a certification of results of election to such
effect.
[Text of Direction of Election omitted from publication.]
' Pacific Coast Association of Pulp and Paper Manufacturers, 94 NLRB 477, 482.
McAnary & Welter , Inc., Petitioner and International Brother-
hood of Teamsters , Chauffeurs , Warehousemen & Helpers of
America, AFL-CIO, Local 142
Robert A . Lucas, Petitioner and International Brotherhood of
Teamsters, Chauffeurs, Warehousemen & Helpers of America,
AFL-CIO, Local ' 142. Cases Nos. 13-RM-257 and 13-RD-9270.
April 13,1956
DECISION AND ORDER
. Upon petitions duly filed under Section 9 (c) of the National Labor
Relations Act, a consolidated hearing was held before Edward T.
Maslanka, 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 these cases, the Board finds :
1. The Employer is engaged in commerce within the meaning of the
Act.
315 NLRB No. 165.