Dick Brothers, Inc.

National Labor Relations Board - Board Decisions

Feb 3, 1954

107 N.L.R.B. 1054 (N.L.R.B. 1954)

1054 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ties as carried out by the Foundation and Gas Technology
are operated on a commercial or business basis. These
two divisions of the Employer furnish research services
to industrial concerns and the Federal Government which
have as their purpose the improvement of manufacturing
processes . Moreover , their sponsors reimburse them for
all cost engendered in connection with these services. In
return for research services rendered during the past year,
the Foundation is expected to receive from its sponsors
approximately $2,900,000. This organization in addition
receives a substantial income from manufacturing con-
cerns for use of its patents. At least with respect to the
Foundation ' s operations , education appears to be of second-
ary significance. The facts herein establish that the Em-
ployer ' s sponsored research projects are of a business
nature. We are of the opinion and find that the Employer
is engaged in commerce within the meaning of the Act.
This finding is unaffected by the fact that the Employer
does not operate for profit or that its activities in inter-
state, commerce involve the communication of informa-
tion rather than the transmission of specific products.
I regard the activities here involved as distinguishable from
the university library which was involved in the Trustees of
Columbia University case, and a symphony orchestra which was
involved in the Philadelphia Orchestra Association case. It
clearly falls within the California Institute of -Technology case
which was decided subsequent to them.
DICK BROTHERS, INC. and STEEL WORKERS FEDERATION,
Petitioner. Case No. 4-RC-2055. February 3, 1954
DECISION AND ORDER
Upon a petition duly filed under Section 9 (c) of the National
Labor Relations Act, a hearing was held before Julius Topol,
hearing officer. The hearing officer's rulings made at the hear-
ing 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 mean-
ing of the Act.
2. The labor organizations involved claim to represent em -
ployees of the Employer.'
iUnited Steelworkers of America, CIO, hereinafter referred to as Steelworkers, and its
Local 1626 intervened at the hearing on the basis of a current contractual interest. Petitioner
objected to the intervention of Local 1626 and contended that it is not a labor organization
within the meaning of the Act, because it is defunct In view of our finding in paragraph
numbered 3, below, Petitioner's objection and contention are without merit.
107 NLRB No. 219.
DICK BROTHERS, INC. 1055
3. No question affecting commerce exists concerning the
representation of employees of the Employer within the mean-
ing of Section 9 (c) (1) and Section 2 (6) and ( 7) of the Act, for
the following reasons:
The Intervenor contends that its current contract with the
Employer is a bar to the petition in this case . The Petitioner
contends that the contract is not a bar because it was termin-
able at will at the time its petition was filed and was subse-
quently terminated . The Petitioner further contends that there
has been a schism within the bargaining unit leading to con-
fusion as to the identity of the bargaining agent and resulting in
the defunctness of Local 1626 . The Employer takes no position
as to contract bar.
Since 1937 or 1938, the Employer has had successive contracts
with either or both of the Intervenors covering its production
and maintenance employees . The most recent agreement
was executed on January 7, 1953, naming only the Employer
and Steelworkers as parties , but bearing the signatures of
Local 1626 officers as well as Steelworkers officers. That
agreement runs until September 1, 1954 , with automatic renewal
from year to year thereafter in the absence of 60 days ' notice
to terminate . It provides for reopening upon notice by either
party 60 days prior to September 1, 1953, for the purpose of
negotiating wage modifications . In the event that no agreement
is reached in negotiations pursuant to such reopening , it pro-
vides that Steelworkers shall have the right to strike , and the
Employer the right to lock out, in support of their respective
positions . However , upon the occurrence of either strike or
lockout, the agreement is to terminate , subject to reinstate-
ment if and when agreement is reached on the matter in dis-
pute. Except for such "termination ," the agreement is to con-
tinue in effect, with such modifications as may be negotiated,
until its expiration on September 1, 1954.
On June 23, 1953, Steelworkers notified the Employer of its
desire to negotiate wage modifications pursuant to the wage re-
opening provision of the agreement . Meetings were held for this
purpose but no agreement had been reached at the time of the
hearing.
On May 20, 1953, after conducting an organizational cam-
paign among the Employer ' s employees , the Petitioner sent the
Employer a letter in which it stated that a majority of the Em-
ployer ' s production and maintenance employees desired the
Petitioner to represent them for purposes of collective bar-
gaining and requested a meeting for the purpose of negotiating
an agreement . This letter was not answered . On July 21, 1953,
the Petitioner sent an identical letter to the Employer . On July
27 the petition in this case was filed . Thereafter, on July 29,
1953, on petition of 14 members of Local 1626, a special meet-
ing of Local 1626 was held at a meeting place in the building
which housed Petitioner ' s offices . Local 1626 meetings were
regularly held at a different location . Use of the hall by Local
1056 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1626 was arranged by Kondrath, the Petitioner's president, al-
though the rent therefor was paid by Endy, president of Local
1626. Mimeographed notices of the meeting, prepared in the
Petitioner ' s office, were posted on the union bulletin boards
at the Employer's plant and were handed to each employee by
the Local 1626 stewards. Thesenoticesdidnotdisclose the pur-
pose for which the meeting was called. The special meeting was
attended by 48 out of the 120 members of Local 1626. Endy pre-
sided over the meeting and all other local officers were
present.' The membership discussed disaffiliation from
Steelworkers and affiliation with the Petitioner . During the
course of the discussion Kondrath , who had earlier informed
Endy of his availability , was brought into the meeting to answer
questions from the membership about the advantages of affilia-
tion with the Petitioner . Kondrath then left the meeting and a
motion was made by a member of Local 1626 to disaffiliate
from Steelworkers and affiliate with the Petitioner. This motion
carried by a vote of 47 in favor with none against. One absten-
tion was recorded.' Endy then stated that those members of
Local 1626 who were absent from the meeting would be polled
at the plant to determine their sentiment.
Kondrath was then informed of what had happened, and ballots
were mimeographed at his office for the purpose of polling the
rest of the membership of Local 1626. On July 31 these ballots
were distributed to members who had not attended the special
meeting as they left work. Endy determined who was eligible to
vote from a list of those who had attended the meeting. The
ballots were marked, deposited in a ballot box, and were taken
to Kondrath's office, where they were counted in Kondrath's
presence. The result of this vote was 42 for, and 5 against, dis-
affiliation from Steelworkers, and 45 for, and 2 against, affilia-
tion with the Petitioner. At this point Endy orally requested
that a local charter of the Petitioner be granted to the dis-
affiliating eml.'oyees. On August 3, 1953, Kondrath notified
Endy that the executive board of the Petitioner had granted them
a charter as Dick Brothers Local of the Petitioner. On the fol-
lowing day Kondrath notified the Employer of the affiliation
with the Petitioner. With the exception of the recording secre-
tary who was newly appointed, all of the officers and committee-
men of Local 1626 continued on in the same positions of the new
local without any formal action by the membership. No formal
notification of disaffiliation or resignation of officers was sent
to the Steelworkers. Thereafter, checkoff revocations were
executed by all but two of the former members of Local 1626
and delivered to the Employer.
2 The recording secretary, who did not attend this meeting, had resigned from his office a
month earlier and had not been replaced.
3 At sometime either before or after the vote was taken, Kondrath returned to the meeting to
invite those present to another hall for free beer and refreshments on behalf of the executive
boards of two of the Petitioner's locals. Inview of our decision herein, we find it unnecessary
to resolve a conflict in testimony at the hearing as to when the invitation was delivered.
DICK BROTHERS, INC 1057
On August 4, 1953, Local 1626 attempted to hold its regular
monthly meeting , but was unable to do so because the entrance
to its regular meeting place was locked. Three employees and an
international representative appeared for the meeting. On Au-
gust 10, 1953, Local 1626 held a specialmeeting, notice of which
was sent by mail to all of those who were members prior to the
disaffiliation move. Three employees again appeared for this
meeting. On August 21, 1953, the two employees who alone had
not executed checkoff revocations were selectedbythelnterna-
tional's district representative to serve as assistant grievance
committeemen, and the Company was notified accordingly. On
the same date, the two new assistant grievance committeemen
sent the Employer a letter with reference to a grievance filed
on behalf of one of them. Steelworkers has since notified the
Employer of its desire to arbitrate the grievance and a date
for arbitration has been set.
On September 3, 1953, after the date on which the hearing in
this case commenced, a commission appointed by Steelworkers
met and appointed an administrator for Local 1626. All former
officers and committeemen of Local 1626 were suspended and
the two remaining loyal members were appointed president and
recording secretary of Local 1626.
Meanwhile, on September 1, 1953, also after the hearing com-
menced, the membership of the newly constituted Dick Brothers
Local of the Petitioner struck against the Employer. The re-
cord shows that the sole purpose of the strike was to terminate
the agreement between Steelworkers and the Employer. The
employees made no demands upon the Employer in connection
with the strike. Upon notification of the strike, Steelworkers
disavowed any connection therewith and informed the Employer
that it was not authorized by Steelworkers or Local 1626.
It is not contended, nor do we find, that the mere reopening
of the contract to discuss modifications therein rendered the
contract inoperative as a bar." The Petitioner does contend,
however, that the Intervenor's contract is not a bar because it
had become terminable at will on July 27, 1953, when its peti-
tion was filed. The contract had then been opened for wage nego-
tiations and could have been terminated by its terms at any time
by the unilateral action of either Steelworkers or the Employer
in striking or locking out in support of their respective posi-
tions. The Petitioner cited the Board's policy of holding a con-
tract terminable at will, and therefore no bar, where the par-
ties may terminate the contract simply by gising notice to that
effect .6 However, we deem those cases distinguishable from the
instant case where termination could be effected only by strike
or lockout. The economic loss inherent in a strike or lockout
will normally deter unions and employers from exercising their
right to terminate a contract by such means. Where such an im -
pediment to the unilateral termination of a contract exists, we
4See Western Electric Company, Inc., 94 NLRB 54
5 E.g., Container Corporation of America, 87 NLRB 1345.
1058 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
will not regard it as terminable at will for purposes of our con-
tract-bar doctrine.
The Petitioner contends, further, that the current contract
was, in any event, terminated bythe strike of September 1, 1953,
and is therefore no longer a bar. It is clear from the record that
the strike was called by the former officers and members of
Local 1626 acting as the Dick Brothers Local of the Petitioner.
While their withdrawal from Local 1626 may not have been
communicated formally to Steelworkers, all of the employees
participating in the strike had, in fact, joined the Petitioner,
and executed revocations of authority to check off dues for Steel-
workers. Furthermore, it is also clear that the sole purpose of
the strike was to terminate the contract, and not to support
Steelworkers' position in the wage negotiations. It is clear that
the contract provides for its terminatiofi by strike only if the
strike is called by the contracting union- -namely, Steelworkers
and only if such strike is in support of Steelworkers' position in
wage negotiations. Under these circumstances, we find thatthe
strike of September 1 called by the Petitioner did not terminate
the agreement and remove it as a bar to the petition herein.
The Petitioner contends, further, that, in any event, the dis-
affiliation move of the membership of Local 1626 and associated
events have created such confusion and uncertainty as to the
status of the bargaining representative as to warrant the di-
rection of an election at this time. We do not agree. On the
facts, as set forth above, not only is there doubt that the dis-
affiliation action took place at a meeting of the contracting
union in view of the place at whichit was held and the participa-
tion of the Petitioner's president in the preparation of the no-
tices of the meeting and in discussion atthe meeting,6 but it is
clear that the disaffiliation action at the July 29 meeting was
based solely upon the dissatisfaction of the dissident members
with their representation. The fact that their dissatisfaction has
been expressed in formalized action is not by itself sufficient
reason for making an exceptionto the normal contract-bar rule
in this case.?
The Petitioner contends, finally, that Local 1626 is defunct
and that the contract should for that reason not operate as a bar.
The contract was signed by Steelworkers and negotiations be-
tween Steelworkers and the Employer wereinprocess when the
instant petition was filed. Both Steelworkers and Local 1626
have in the past participated in the administration of the con-
tract. Steelworkers and the present officers of Local 1626 have
continued, and are willing to continue, to administer the con-
tract. Under all the circumstances, the Board finds that an ex-
ception to the contract-bar doctrine, either on the grounds of
schism or defunctness, is not warranted in this case.'
6See G. Mathes Division of Lewin-Mathes Company, 105 NLRB 911.
7 Barton Distilling Company, 106 NLRB 361; Allied Container Corporation, 98 NLRB 580.
8 Mario Mercado E Hijos d/b/a Central Rufina, 105 NLRB 591.
GOLD BOND, INC. 1059
As the existing contract will not expire until September 1,
1954, we find that it is a bar to the present petition . We shall
therefore dismiss it , without prejudice to a timely refiling.
[The Board dismissed the petition.]
Member Rodgers took no part in the consideration of the
above Decision and Order.
GOLD BOND , INC. and JACOB GOODMAN, ATTORNEY FOR
EMPLOYEES , Petitioner and UPHOLSTERERS ' INTERNA-
TIONAL UNION - OF NORTH AMERICA , AND ITS AGENT,
LOCAL NO. 601, AFL. Case No. 2-RD - 209. February 4, 1954
DECISION AND ORDER
Upon a petition duly filed under Section 9 ( c) of the National
Labor Relations Act, a hearing was held before Herman
Gelband, 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 withinthe meaning
of the Act.
2. The labor organization involved' claims to represent em-
ployees of the Employer.
3. No question affecting commerce exists , concerning the
representation of employees of the Employer within the mean-
ing of Section 9 (c) (1) and Section 2 (6) and ( 7) of the Act, for
the following reasons:
In 1951 the Employer's predecessor , Standard Venetian Blind
Company, and the Unionexecuteda 3-year contract covering the
Employer's production employees . A little over a year later, in
December 1952 or January 1953, as a result of their dissatis-
faction with the Union , some of the employees talked on sev-
eral occasions with the Employer's president , Rogow, about
how to decertify the Union . According to employee Lash, Rogow
told the employees that he would get in touch with his attorney;
later reported backthat his New Jersey attorney , Schneiderman,
could not help them --that the employees would have to contact
a New York lawyer ; and when the employees spoke to him at
another time , said he "would see what he could find out for us
if we really wanted to get rid of" the Union. There is also
testimony by the Employer ' s New York attorney , Schwartz,
who advises Rogow on labor matters , that in December 1952
Attorney Schneiderman called him about the employees ' desire
to disaffiliate , and Schwartz advised Schneiderman that the
'The name of the Union appears as amended at the hearing.
107 NLRB No. 221.