Harrisburg Railways Co.

National Labor Relations Board - Board Decisions

Jun 1, 1951

94 N.L.R.B. 1028 (N.L.R.B. 1951)

1028 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
[Text of Direction of Election omitted from publication, in this
volume.]
HARRISBURG RAILWAYS CODIPANY and AM ALGADIATED ASSOCIATION OF
STREET , ELECTRIC RAILWAY AND MOTOR COACH EMPLOYEES OF
AMERICA , AFL, PETITIONER . Ca se No. 4-RC-10?9. Jwne 1, 1951
Decision and-Direction of Election
Upon a petition duly filed under Section 9 (c) of the National
Labor Relations Act, a hearing was held before Ramey Donovan,
hearing officer. The hearing officer's rulings made at the hearing are
free from prejudicial error and are hereby affirmed. For the reasons
given in paragraph numbered 3, below; the notions of the Employer
and Harrisburg Railways Employee Association, herein called the
Intervenor, to dismiss the petition upon the ground that an existing
collective bargaining agreement is a bar to this proceeding, are denied.
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 Employer and the Intervenor contend that a collective bar-
gaining contract effective from January 1, 1950, to December 31, 1951,
is a bar to this proceeding. The Petitioner asserts that the contract
cannot operate as a bar because (a) the Intervenor is defunct, and (b)
a schism in the membership of the Intervenor creates a doubt of the
continued representation by the Intervenor of the employees involved
herein.
The Intervenor holds regular meetings at monthly intervals.
Notices of meetings are customarily posted on bulletin boards in the
shops several days in advance of the scheduled meeting. Notices of a
regralar meeting to be held on December 4, 1950, were posted in the
usual way.
The December 4 meeting was attended by 68 members, or about
double the number usually present at monthly meetings. Those in
attendance constituted approximately 30 percent of the Intervenor's
total membership. By a vc of 61 to 4 (3 members did not vote) the
members present voted to dissolve the Intervenor and affiliate with the
1 Harrisburg Railways Company, 84 NLRB 678 ; W. C. King, 4/b/a Local Transit Lines,
91 NLRB 623 The parties stipulated that , except for an approximate 13 percent decline
in the number of revenue passengers carried there has been no substantial change in the
Emplovei ' s operations since the . Board `- s decision , supra, in June 1949 asserting jurisdiction
over the Employer,
94 NLRB No. 151.
HARRISBURG RAILWAYS COMPANY 1029
Petitioner. Subsequently, 116 employees signed the dissolution
resolution.
On December 9, 1950, Lineburg notified the Employer that, in view
of the action taken at the December 4 meeting, there would be no
further meetings held with the Employer, except to discuss grievances,
until the question of representation should be decided by the Board.
Two days later, the Petitioner asked the Employer for recognition as
bargaining representative. The Employer declined to extend such
recognition because of an August 3, 1949, certification of the Inter-
venor and its existing contract. The Employer also indicated that
it would continue to deal with the Intervenor, until a new bargaining
representative was certified. On December 19, 1950, the Petitioner
filed the present petition.
Four of the officers have remained loyal to the Intervenor.' In
addition, the Intervenor has continued to process grievances and to
hold regular monthly meetings, each attended by approximately 30
members, the monthly average. At the January 4, 1951, meeting, the
first to be held after the dissolution meeting, the members present
voted 17 to 15 that Lineburg vacate his chair as president. However,
contrary to our dissenting colleagues, at no time have they by formal
action or otherwise effectively repudiated the action taken at the
December 4 meeting. And although the Intervenor's negotiating
committee 3 continued wage negotiations which had been initiated
before the December 4 meeting, under a wage reopening provision in
the existing contract, we note that no agreement has been reached.
The foregoing circumstances indicate that the Intervenor is not de-
funct. However, the fornial action to disaffiliate from the Intervenor
and to affiliate with the Petitioner establishes that there has been a
Cchism within that organization which we find, for reasons stated in
the Boston Machine Works case,4 removed the existing contract as a
bar to a present determination of representation.'
Our dissenting colleagues would now require us to seek other tests
than those established in the cited case, for fear that our schism
2 One of the other officers, Lightcap, joined the Petitioner in August 1950, voted for
the December 4 resolution , and was selected as a temporary officer of the new organization,
but did not serve in that capacity and has reiterated his loyalty to the Intervenor.
3 Lineburg did attend and participate fully in a wage negotiating meeting held on
December 8, 1950 Morgan, the Petitioner's vice president, later told hint he should not
have attended the meeting
4 Boston Machine Words, 89 NLRB 59
s The facts in the present case are clearly distinguishable from those in Diagraph-
Bradley Industries, Inc, 91 NLRB 605 (Members Houston and Reynolds dissenting)
relied on by the Employer. In that case, after a formal vote to change affiliation, the
members of the contracting union formally voted to reaffiliate with their former interna-
tional. In addition . the Petitioner in that case presented no evidence that it had held
any meetings, conducted any activities in behalf of the employees, or that it had members
among them The employees had obviously recanted their change in affiliation. No such
recantation occurred in the present case
1030 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
doctrine affords a convenient device for raiding. We see no such
cause for alarm. In placing reliance on the formal action taken at
the union meeting of December 4, we are resorting to the clearest index
as to the nature of the representative status of the Intervenor. To
belittle the action taken, because the results conformed to the desired
objective of a group of employees favoring the Petitioner, is to cast
doubt upon the ability of the individual employee effectively to handle
his labor interests through the use of democratic techniques. Accord-
ingly, we believe that the policies of the Act will be effectuated by
directing an election at this time.
The Employer moved at the hearing that, in the event an election
is directed, any certification that may issue indicate that the certified
representative has the responsibility of administering the contract
already existing between the parties. We do not believe that it is the
Board's function in a representation- proceeding to pass upon this
question.6
We find that a question affecting commerce exists concerning the
representation of the Employer's employees within the meaning of
Section 9 (c) (1) and Section 2 (6) and (7) of the Act.
4. In accordance with an agreement of the parties, we find that the
following employees of the Employer, Harrisburg, Pennsylvania, con-
stitute a unit appropriate for the purposes of collective bargaining
within the meaning of Section 9 (b) of the Act : 7
All operators and maintenance employees, including bus operators,
checkers, bus cleaners, cleaners, cleaner and janitor, cleaner-paint
shop, cleaner-paint and body- shop, inspector's helper, cleaner's
helper, painter's helper, mechanic's helper, helper-body shop, repair-
man's helper, helper-paint shop, first grade repairman, second grade
repairman, body repairman second class, special repairman, special
repairman-body shop, painter, and bus starter, but excluding office
employees, guards, watchmen, and supervisors as defined in the Act.
[Text of Direction of Election omitted from publication in this
volume.]
CHAIRMAN HERZOG and MEMBER MURDOCK, dissenting :
We disagree with the majority's finding that the contract is not a
bar, because we believe that it represents an unwise extension of the
schism doctrine.
Almost from the beginning of the administration of the Wagner
Act, the Board has been faced with the difficult problem of deciding
when, if ever, to conduct a representation election in the face of a
6 Boston Machine Works, supra ( Member Reynolds dissenting on this issue )
This is the unit found appropriate in Harrisburg Railways Company, 84 NLRB 679
HARRISBURG RAILWAYS COMPANY 1031
valid existing collective bargaining contract which is claimed to be
a bar. In making its determination in such cases, the Board has had
to balance two separate interests, both.of which the Act is intended,to
foster and protect: The interest of employees and society in the sta-
bility that is essential to the effective encouragement of the practice
of collective bargaining, and the sometimes conflicting interest of
employees to select and change their representatives at will."
Out of its experience, the Board has formulated several rules which
embody sound accommodations of these two interests.9 In this cate-
gory is the rule, applied by the majority in this case, that a contract
will not be held to be a bar when a schism within the ranks of the
contracting union has created such confusion in the bargaining rela-
tionship that the contract no longer can be said to promote stability
in labor relations .e We agree with this rule, but we would apply it
with more discrimination than the majority seems disposed to use.
We certainly would not apply it in such a way as to encourage raiding
of an incumbent union by a rival union during the life of an existing
contract 11 Yet that is the effect, we think, of the majority's decision.
A glance at the facts in this case makes this abundantly clear. In
1949, the Board conducted an election to determine whether the em-
ployees desired to be represented by the Petitioner or the Intervenor.
The latter won the election. In August or September 1950, during
the existence of a valid contract not due to terminate until December
31, 1951, a vice president of the Petitioner began organizing activities
among the employees. At an opportune time, when dissatisfaction
apparently existed among the employees over the state of negotiations
for a wage increase, the faction favoring the Petitioner, with the
assistance of this vice president, engineered a formal vote of dissolu-
tion of the Intervenor at a regular meeting attended by less than one-
third of the total membership.12 By accepting this action as adequate
proof of schism, the majority has approved a formula for avoidance
8 Seventh Annual Report, p 54; Eighth Annual Report, p 45; Ninth Annual Report,
p 25; The Trailer Company of America, 51 NLRB 1106
9 See e g , Seventh Annual Report, p 46 ; Fifteenth Annual Report, p. 60.
30 Boston Machine Works Company, 89 NLRB 59.
" In an early schism case in which a contract was held not to be a bar, the Board
issued the following cautionary statement, which we still think represents sound policy :
The Board notes that this case does not involve a contest between rival labor
organizations competing for majority representation during the existence of a valid
outstanding exclusive bargaining contract, but that substantially the. entire member-
ship of [the Intervenor] acting upon their own initiative, disbanded the local,
surrendered its charter, and transferred their affiliation to the [Petitioner]. ( United
Stove Company, 30 NLRB 305 )
'2 About a week before the December 4 meeting, a small group of adherents of the
Petitioner, including Lineburg, president of the Intervenor, with Petitioner's Vice-President
Morgan in attendance, met and decided to introduce a resolution to dissolve the Intervenor
at the next regular meeting. At the request of Lineburg and Morgan, the attorney for
the Petitioner drew up a resolution of dissolution. At about the same time, the leaders
of the dissolution faction orally asked numerous employees to attend the December 4
meeting. Notices of the regular meeting made no mention of the possibility that a
motion to dissolve the Intervenor would be considered.
1032 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of the contract bar rule, of which other raiding unions may well see
fit to take advantage with consequent unstabiliring effects upon labor
relations.
The majority rely upon the Boston Machiiie 11'oi°ks case in finding
that a schism occurred as a result of the formal dissolution vote taken
at the December 4 meeting. The cited case, however, presents sub-
stantially different facts. The Board's finding of schism in that case
was expressly predicated upon those particular circumstances, which
revealed an intraunion split of such proportions as to seriously affect
the ability of the bargaining representative to function in that
capacity.
We do not believe that the normal bargaining relationship between
the Employer and the certified bargaining; represeutative in this case
"has become a matter of such confusion . . . that the relationship.
between them can no longer be said to promote, stability in indus-
trial relations." 13 The Intervenor has continued to function to all in-
tents and purposes exactly as it did before the alleged schism. Four
of its five officials have remained loyal. The Employer is in no doubt
as to the union with which it must bargain. Moreover, by their 17 to
15 vote to unseat the leader of the faction favoring the Petitioner, the
employees in effect formally repudiated the vote for dissolution taken
at the previous regular meeting.'", Under these circumstances, we
would find the contract to be a bar and dismiss tho petition, without
prejudice to its refiling a reasonable time before December 31, 1951,
the termination date of the existing contract.
"Boston Machine Works Company , supra.
14 Cf . Diagraph-Bradley Industries, Inc., 91 NLRB 605.
PUERTO RICO CEREAL EXTRACTS , INC. a'n (l CONv1 )ERACION GENERAI. DE
TRABAJADORES DE PUERTO Rico (AUTENTICA). Case No. 38-CA-
176. June 4, 1951
Decision and Order
On February 14, 1951, Trial Examiner David F. Doyle issued his
Intermediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the copy of the Interme-
diate Report attached hereto. The Trial Examiner also found that tlhe
Respondent had not engaged in certain other alleged unfair labor
practices and recommended dismissal of these allegations. There-
after, the Respondent filed exceptions to the Intermediate Report and
a supporting brief.
94 NLRB No. 157.