East Mfg. Corp.

National Labor Relations Board - Board Decisions

May 4, 1979

242 N.L.R.B. 5 (N.L.R.B. 1979)

EAST MANUFACTURING CORPORATION
East Manufacturing Corporation and Freight Drivers,
Dockworkers & Helpers Local Union 24, Interna-
tional Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America, Petitioner. Case
8-RC- 11323
May 4, 1979
DECISION ON REVIEW AND ORDER
BY MEMBERS PENELLO, MURPHY, AND TRUESDALE
The Employer is an Ohio corporation which manu-
factures aluminum dump trailers at its Randolph,
Ohio, plant. The East Employees Association is an
unaffiliated labor organization which represents the
Employer's production and maintenance employees
at this facility. On April 17, 1978, the Petitioner filed
an election petition with Region 8 claiming to repre-
sent these same employees. Collective bargaining for
the East Employees Association (herein called the
Association) is the responsibility of its executive com-
mittee which consists of seven elected members each
of whom represents the employees of a single depart-
ment at the plant.' The Regional Director for Region
8 issued a Decision and Direction of Election on May
31, 1978, in which he concluded that a disclaimer of
representational interest executed and filed during the
hearing by the Association and containing the names
of six executive committee members removed the As-
sociation's collective-bargaining agreement with the
Employer as a bar to the holding of an election. The
Regional Director also concluded that certain alleged
improper conduct of the Hearing Officer was not ob-
jectionable and did not prejudice the Employer. The
Employer thereafter, in accordance with Section
102.67 of the National Labor Relations Board's Rules
and Regulations, Series 8, amended, filed a request
for review of the Regional Director's decision, re-
quested the election be stayed, and filed a motion to
reopen the record. The Petitioner subsequently filed
an opposition statement.
On June 29, 1978, the National Labor Relations
Board granted the request for review and stayed the
scheduled election. Both the Employer and the Peti-
tioner have filed briefs in support of their respective
positions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The East Employees Association and the Employer
commenced negotiations for a new contract in April
1977. Numerous bargaining sessions between man-
' The Employer's plant consists of eight departments. One executive com-
mittee member represents the employees of two departments.
agement and the Association's executive committee
culminated in the execution of a valid collective-bar-
gaining agreement on September 25, 1977, which ex-
pires in 1980.
Since the execution of the contract and, in fact,
until approximately 1 month prior to the hearing, the
Company and the Association's executive committee
met regularly to discuss matters regarding both the
contract and the employees' general employment
conditions. On April 27 or 28, approximately 1 week
prior to commencement of the hearing, several execu-
tive committee members conferred with a company
official regarding similar matters. The Association
filed a grievance on January 10, 1978, alleging that
the Company had failed to comply with a particular
contractual provision. This matter eventually was
submitted to arbitration and an arbitral hearing was
conducted on June 6, 1978, a date subsequent to the
conclusion of the 4-day representation hearing.'
The representation hearing commenced on May 8,
1978. Three officers of the Association's executive
committee attended, but the Association did not in-
tervene. During the second day of the hearing the
executive committee members requested a private
meeting with the Hearing Officer. The hearing was
recessed for I hour. The committee members ex-
pressed a desire to disclaim interest in further repre-
senting the petitioned-for employees and requested
that the Hearing Officer draft a disclaimer of interest.
The Hearing Officer complied, the three committee
members executed the document, and, once the hear-
ing resumed, the disclaimer was introduced into evi-
dence.3 During the hearing neither the Association
nor any member expressed a present willingness or
ability to represent the Employer's employees or to
administer the extant contract.
In its brief submitted to the Regional Director, the
Employer argued, among other things, that its current
collective-bargaining agreement with the Association
bars the holding of an election and that the disclaimer
is a subterfuge intended to create a technical defunct-
ness inimical to policies of the statute, and therefore it
is ineffective. Further, the Employer alleged that the
executive committee members who attended the hear-
ing improperly assisted the Petitioner. The Regional
Director, however, was unable to discern either evi-
dence of collusion or an agreement between the Asso-
ciation and the Petitioner, or evidence of a design to
2The Employer's motion to reopen the record seeks to introduce the
stenographic record of the June 6 hearing into evidence.
3 Two disclaimers were executed and introduced into evidence during the
hearing. The first, as noted above, contained the signatures of three of the
seven executive committee members. The second contained the signatures of
six members, including the original three. The additional signatories did not
attend the hearing and were presented with the document, a photocopy of
the original, in the plant prior to completion of the hearing.
242 NLRB No. 5
5
I)Fl('ISIONS Ot- NA'I'IONAL LABOR RELATIONS BOARD
avoid the contract. Moreover, the Regional Director
noted that since the execution of the contract the bar-
gaining unit had expanded significantly. He, there-
fore, found the disclaimer effective and directed an
election. We disagree with the Regional Director's
conclusion and hold that the Association's disclaimer
fails to remove its valid collective-bargaining agree-
ment as a bar to the holding of an election and that,
accordingly, no question concerning representation
can be raised at this time.
The Employer maintains there is sufficient evi-
dence of collusion between the Association and the
Petitioner to invalidate the disclaimer. But even as-
suming an absence of' such evidence, the Employer
argues, the disclaimer is ineffective because the Asso-
ciation failed to comply with its bylaws. Finally, the
Employer claims the Regional Director improperly
determined that the Association is defunct.
An examination of the Regional Director's decision
discloses that the Regional Director's conclusion is
not based on a determination of defunctness, but on
the incumbent's disclaimer of interest. The Associ-
ation's nonintervention, failure to express a present
willingness or ability to represent its members and
administer the contract, and an increase in the size of
the bargaining unit since the execution of the contract
were merely additional considerations advanced by
the Regional Director in support of his refusal to find
the contract a bar to an election. 4
The record contains no evidence that the East Em-
ployees Association is either defunct or unable to ad-
minister the extant contract. Numerous meetings
prior to the hearing between the executive committee
and management to discuss employment matters, a
meeting between several committee members and a
company official approximately 1 week prior to the
hearing, and the arbitration proceeding demonstrate
the continuing vitality of the Association.5
In our view the Regional Director mistakenly con-
cludes that, absent evidence of collusion or an agree-
ment between the Petitioner and the Association, the
' The size of the bargaining unit has increased approximately 30 percent
since the contract was executed. The increase is therefore of insufficient mag-
nitude to remove the contract as a bar. General Extrusion Company. Inc., 121
NLRB 1165 (1958).
The Employer contends that the Association's participation in the arbi-
tration proceeding is inconsistent with its disclaimer of interest and un-
equivocally establishes the Association's continuing efficacy. Disclaimers, of
course, are accorded less weight if inconsistent with contemporaneous or
subsequent union conduct. Without more, the Association's participation in
the proceeding, the culmination of a past grievance, would not be incompati-
ble with its disclaimer of present representative status. Franz Food Products of
Green Forest, Inc., 137 NLRB 304 (1962). But, in conjunction with the Asso-
ciation's other above-mentioned activities, the arbitration proceeding is some
evidence of the Association's ability to administer the contract and, accord-
ingly, the Employer's motion to reopen the record for the introduction of the
stenographic record of the arbitration hearing is granted. That document is
received in evidence and is hereby made part of the record.
disclaimer must be accorded legal effect. Such a result
ignores both the peculiar circumstances of this case
and the compelling policy considerations which are a
cornerstone of the statutory scheme. The Board's
contract-bar doctrine is intended to promote indus-
trial stability between contractual partners and to af-
ford employees a reasonable opportunity to change or
eliminate their bargaining representative. Bargaining
relationship stability is no less a concern for manage-
ment than it is for labor organizations. Each party
has substantial investments in the bargaining process
and their investments deserve, where practicable,
both deference and protection. Simply, to permit an
incumbent and vital labor organization to disavow its
lawful contractual obligations when it is not defunct
derogates our contract-bar doctrine.6
The evidence in this case reveals that certain mem-
bers of the Association were dissatisfied generally
with the Association's effectiveness, particularly with
respect to such matters as contract interpretation and
grievance resolution. The disclaimer, according to
Robert McConnell, president of the Association at
the time of the hearing, was the direct result of such
disgruntlement. Understandably, those executive
committee members who attended the hearing and
executed the disclaimer might reasonably have con-
cluded a disclaimer the most expeditious method to
alleviate such disaffection. But disclaimers executed
under such circumstances are inconsistent with the
Board's contract-bar doctrine.7
The Petitioner avers that Board decisions in Na-
tional By-Products Company, 122 NLRB 334 (1958);
Plough, Inc., 203 NLRB 121 (1973); and Manitowac
Shipbuilding, Inc., 191 NLRB 786 (1971), deflate the
Employer's arguments. An effective disclaimer, the
Petitioner argues, removes a contract as a bar to an
election. But an examination of those decisions dis-
closes dissimilar factual patterns and provides inap-
preciable support for the Petitioner's position. We
instead believe that the important policy consider-
6 Members Murphy and Truesdale note that we are not here concerned
with the nght of the Association to affiliate with another orgamnzation, in
which case the collective-bargaining agreement between the Employer and
the Union would remain in effect until the stated expiration date. See, e.g.,
Amoco Production Company, 239 NLRB 1195 (1979).
Member Truesdale agrees that to permit the Association to disavow its
lawful contractual obligations when it is not defunct derogates our contract-
bar doctrine. In this regard, however, Member Truesdale notes that the As-
sociation is a local labor organization which consists only of employees of
the Employer. These employees, who hold the fate of their organization in
their own hands, cannot be permitted, absent defunctness, to simply disclaim
interest in themselves and select a new labor organization as bargaining
representative perhaps in an attempt to secure higher wages and benefits
than are set forth in their current contract.
? Mack Trucks, Inc., 209 NLRB 1003 (1974). See, generally, Aircraft Tur-
bine Service, Inc., 173 NLRB 1709 (1968), and Gatre City Optical Company, a
Division of Cole National Corporation, 175 NLRB 1059 (1969).
8 Mack Trucks, Inc., supra at 1004, fns. 3 and 5.
6
EAST MANUFACTURING CORPORATION
ations discussed in Gate Citv Optical and Mack
Trucks, supra, are relevant to the proper resolution of
this issue. To permit a viable contracting representa-
tive such as the East Employees Association to dis-
avow its lawful contractual commitments during the
term of an enforceable contract, even if the disavowal
stems from an awareness of employee dissatisfaction
with that representative, impugns the integrity of the
collective-bargaining process and encourages circum-
vention of our contract-bar doctrine. Gate City Opti-
cal plainly demonstrates our disinclination to permit
such circumvention, and today we reaffirm this pol-
icy. We, therefore, find the Association's disclaimer of
interest ineffective and hold that its collective-bar-
gaining agreement with the Employer is a bar to an
7
election. We accordingly shall order that the petition
be dismissed. 9
ORDER
It is hereby ordered that the petition he, and it
hereby is, dismissed.
T 'he mplo,,er also alleges that certain conduct o the Hearing Officer
was bhjectioinahle and prejudicial, including the Hearing Officer's drafting of
the disclaimer. The Regional Director found that the Hearing Officer's prep-
aration of the disclaimer was technical n nature and il the tpe permitted
by Board procedure and consequently did not prejudice the Employer's po-
sition The Hearing Officer's drafting of the disclaimer stemmed from a re-
quest of the executise committee members who attended the hearing Be-
cause we have ordered that the petition in this case he dismissed, we find t
unnecessary to decide whether the Hearing Officer's drafting of the dis-
claimer prejudiced the Fmploxer's position. Nor d we find it necessary to
address the Employer's allegations regarding both he Hearing Officer's
other conduct and the association's purported fallure t comply ith its
blaws